I’ve had this article in mind for quite some time. I see attorneys make the same mistakes over and over, and I thought by posting an article listing those mistakes, I would have a place to send them to explain, in the nicest possible terms, that they are making themselves look like idiots.
The article idea sat on the back burner because I had not witnessed these mistakes for awhile. I was almost beginning to believe that with the ease of information retrieval via the Internet, perhaps attorneys had finally figured out these mistakes on their own. Foolish me. I saw opposing counsel in three of my cases make some of these mistakes just this week.
Most of these mistakes are specific to California civil procedure, but I’m sure even if you practice in another state you will have attorneys making similar mistakes under your procedural rules. I’m sorry this article is so long, but attorneys do a lot of boneheaded things. Feel free to direct other attorneys here when you see them making these mistakes.
1. Making a threat not based in reality.
Earlier this week, my firm substituted into a case involving a business tort. There had been problems with the client’s discovery responses before we got involved, and the day after we came into the case there was a hearing on a motion to compel. I successfully persuaded the court to reduce the sanctions sought against the client, but the court appropriately awarded about $600 in attorney fees for the time opposing counsel had spent on the motion.
Two days later I received a faxed letter from opposing counsel, demanding that our client “pay the $600 in sanctions within 48 hours.” The letter explained that if my client did not pay those sanctions with 48 hours, opposing counsel would go to court for additional sanctions.
There is no “sanctions for failing to pay discovery sanctions” motion. Sanctions can be reduced to a judgment, making all the normal methods for collecting a judgment available, but the court cannot force the payment of discovery sanctions. Even if there were such a motion, no court would impose additional sanctions for sanctions that had not been paid in four days. (Sanctions ordered paid to the court are a different matter of course.)
I wrote back to opposing counsel, asking him to provide the authority for seeking sanctions for failing to pay sanctions, and advising him that if he felt it was a good use of his time to prepare, file and argue whatever motion he had in mind in order to recover $600, he should do so, although I did anticipate that he would have the check in the next ten days if he could be patient. Ever helpful, I provide him with The Rutter Group citation explaining how discovery sanctions are recovered (section 9:1285 of Civil Procedure Before Trial if you want to check me). He wrote back, acknowledging that he was not aware of any authority, and thanked me in advance for the check.
What did that threat from opposing counsel accomplish, other than to show he does not know what he is talking about? You know what happens when you cry “wolf”. Never make a toothless threat. If you are going to posture, make sure the law backs you up. Otherwise you just look bad.
[UPDATE:] This precise scenario arose in a current case, with me coming into the case on the eve of a motion to compel. This time, counsel screamed that he was going to seek a contempt order if my client did not pay the sanctions by a certain date. Again, ever helpful, I pasted this article into the bottom of my reply email and advised him that “failure to pay court ordered discovery sanctions is not enforced by a contempt procedure. I’ve provided an article below that provides information on how the failure to pay court ordered discovery sanctions is handled.” He responded with the technique often employed on elementary school playgrounds, where the child who was just beaten at tether ball turns to the victor and says, “yeah, well you’re ugly.” His response was, “If your own opinion, as expressed on your own blog, is the sole foundation for your position . . . we wish you the best of luck.” Did he not see the citation to The Rutter Group?
Many attorneys erroneously believe that advocacy involves lots of threats, arm waving and posturing. Recently I was bringing an ex parte application in a real property dispute. Our local rules require notice to the other side at least 24 hours before the hearing, and in the supporting declaration you must specify that said notice was provided, and state whether opposing counsel opposes the ex parte application. I can only know if you oppose the application by asking.
I am all about giving proper notice, because I don’t want to have to come back to court again when opposing counsel claims they did not have sufficient notice, so I provide notice by phone and in writing. One of the opposing attorneys was not available by phone, so I left a voice mail and then faxed and emailed a letter, asking in all instances if he intended to oppose the application. He responded to the email, stating that he would appear in court “and VEHEMENTLY oppose your motion!!” I’m not kidding. Capital letters and two exclamation points (the bold was my own touch).
What was the point of that? It’s not enough to tell me that you will oppose the application; you have to make clear that you are REALLY, REALLY going to oppose the motion? Still ever helpful, I replied to the email, telling him to remember to breathe while being all vehement. True to his word, he was very loud and animated at the hearing, questioning at some point if I had really attended law school as I recall, but I won the motion (naturellement). I’m sure he felt worse than he would have if he had just opposed the motion, and not been quite so vehement.
I learned a long time ago that posturing accomplishes nothing. The other side already knows the strength or weaknesses of their case or defense (as well as yours), so posturing won’t change anything in that regard, and if you lose after a lot of posturing, you just feel stupid.
2. Failing to understand service and how the USPS works.
I sometimes wonder if there is a practice guide or seminar that offers these bad litigation tips that seem to reappear every six months or so. This is one I had not seen for quite some time, and then up it jumps again.
In another real estate case, we timely responded to some discovery propounded by the other side. Three days later, we received a letter from opposing counsel, explaining that he had not received the responses, that we had therefore waived all objections, and that if he did not get the responses in a week without objections, he would move to compel, get millions in sanctions, sell our children into slavery, and all the other usual nonsense.
Let me walk you through this so you never embarrass yourself like this attorney. How quickly you receive something mailed by opposing counsel depends on a number of factors, including when each side’s office has mail pick up and delivery. Our fine Legislature recognized this, and built it into the system. That’s why you get a full five extra days to respond to service by mail.
Let’s say the fine people from the USPS do not pick up mail from your office until 3:00 p.m. You prepare your discovery responses for service, give them to your secretary, and she prepares the proof of service, indicating it was mailed on that day. To keep it simple, let’s say she mailed the discovery responses on a Monday. But “mailed” does not mean she put it in a mailbox. The service statute provides that she can put it in the outgoing mail basket for mailing “following ordinary business practices.” Most offices don’t make multiple runs to the mailbox throughout the day. In our hypothetical office, the procedure would probably be to run mail to the box before 3:00, and then again at the end of the day. That’s the procedure my office follows, although I imagine most offices just run the mail down to the box once a day before that day’s pick up, and the result would be the same. If the discovery was completed after 3:00, then that mail will not actually be picked up by the mail carrier until the following day. Perfectly okay under the rules, but you’ve just lost one day. So on Tuesday, the mail carrier picks up the mail at 3:00, drives around with it for the remainder of the day, and finally deposits it in the post office that evening for processing.
Does that discovery get processed in a single night and arrive at opposing counsel’s office on Wednesday? It could happen, especially if opposing counsel’s office also happens to have late mail delivery, but there is a reason you pay extra for overnight service, and even “priority mail” takes two days or more. Most of the time Tuesday’s mail will not be completely organized and put into the trucks for delivery until Thursday. That letter mailed on Monday could get to opposing counsel as early as Wednesday, but it could take four days or more, depending on whether the mail sorting or delivery guys called in sick, although the post office is usually very good about getting it all postmarked on the day it is received.
So what was wrong with this attorney sending the letter on Thursday, the day he should have anticipated receiving the responses? Admittedly, he was better than some attorneys I have seen who send the letter the day after the responses are due, but the problem remains that the letter went too far. Before posturing and threatening, just check the postmark when the documents are received! If he wanted to send a courteous letter saying the responses had not yet arrived, that’s fine, but he should have saved all the posturing about waived objections until he had the postmark in hand, because when he did receive the responses and saw from the postmark that they were served on time, he had to feel foolish. Making matters worse, he was guilty of:
3. Screaming that the proof of service was not signed.
Having received a document with an unsigned proof, opposing counsel will sometimes write to me to say something like, “we do not accept that your service was proper because the proof of service was UNSIGNED!!” (This is why I suspect this bad litigating comes from a seminar or “how to” book, because “unsigned” is always in all caps with two exclamation points.) Even more humorous, I have had cases where opposing counsel argued in opposition to a motion that the motion should be disregarded because the proof of service is unsigned and therefore there is no verification that the motion (they are responding to) was ever served. In the case just cited, opposing counsel wrote to say the discovery obviously must have been served late, “as evidenced by the fact that the proof of service is UNSIGNED!!”
Again, allow me to walk you through this so you won’t look foolish like this attorney.
When you file a document with the court or send discovery to the opposition, you prepare a proof of service attesting to the fact that you mailed – past tense – the document to opposing counsel. How can I make that stand out more? You are attesting that you mailED, mailED, mailED the document. If you sign the proof of service before you mail the document, you are perjuring yourself. If the proof of service you send to opposing counsel is signed, then that means you signed the proof of service, attesting that you mailed the document, before you actually mailed the document.
Yes, I get how it works in the real world and why 90 percent of attorneys do it wrong. The attorney prepares the court document and gives it to the secretary. The secretary prepares and signs the proof of service, makes copies, and then puts the original in the attorney service basket, mails a copy to opposing counsel, and keeps one copy for the file. But that is not proper service. We properly serve all documents with UNSIGNED!! proofs of service, so it can be done. Every court document you send to opposing counsel should have an UNSIGNED!! proof of service.
If you still cannot accept what I am saying because it so challenges your cherished beliefs, here is an official website from a Superior Court backing me up (item 3). Better yet, here is the official proof of service by the Judicial Council, with instructions on how to serve someone, specifically stating in item 3b that the proof of service sent to the other side must be unsigned.
Or, I don’t know, how about if we just check the Code of Civil Procedure that sets forth the rules for service. CCP § 1013(b) states: “The copy of the notice or other paper served by mail pursuant to this chapter shall bear a notation of the date and place of mailing or be accompanied by an UNSIGNED!! copy of the affidavit or certificate of mailing.” (Emphasis added.) There is identical language for service by fax and email.
[UPDATE:] I was able to use this article for its intended purpose almost immediately. Rather than prepare a long letter explaining to opposing counsel why proofs of service are unsigned — oh, sorry, UNSIGNED!! — I directed him here. Despite my best efforts, complete with capital letters in varying colors, copious use of bold text and supporting authorities, including CCP § 1013(b), after reviewing this article he wrote again to advise that “I stand by my position that discovery served with an unsigned proof of service is invalid and does not preserve any objections.”
You know, as a philosopher once said, all you can do is all you can do.
4. Objecting to discovery when a demurrer is pending.
I am not a big fan of demurrers, and often when I see them it is clear the attorney is billing for the sake of billing. Opposing counsel once demurred to a complaint I filed that alleged our client had been terminated without cause. He demurred saying he could not imagine what we meant by “terminated without cause”. How can one provide more detail about how a termination was without cause? Maybe if we had used stronger words? “Plaintiff was absolutely, positively fired without cause.” Or perhaps, “Plaintiff was really, really, really fired without cause, and that’s no lie.”
Anyway, if I bring a demurrer, there is good reason to do so. But it can take a month or more to have my demurrer heard, so I conduct discovery while the demurrer is pending. Often, I serve the discovery along with the demurrer.
I cannot tell you how many objections I have received, stating that discovery cannot occur while there is a demurrer pending. I had one attorney fight it all the way through a motion to compel on that basis.
Yes, you can conduct discovery while a demurrer is pending. Come on people. The Rutter Group – Civil Procedure Before Trial. It’s not hard to look this stuff up.
[UPDATE:] You ever hear a new word, and then you hear it like five times over the next week, and wonder how you could not have been aware of that word your whole life? Well, maybe not, but it has happened to me, and this article is a little like that. I wrote it and now I’m seeing these rules broken in seemingly all of my cases.
I served the first round of written discovery with a demurrer to a complaint, and about two weeks after the responses were due, I got around to sending opposing counsel a friendly letter that the responses were still outstanding.
“Ha, ha, ha”, he chortled on the phone, “you can’t serve discovery while a demurrer is pending, so we just ignored those.”
Can you say, “waived all objections?”
[UPDATE:] Effective January 1, 2016, before filing a demurrer, you are required to meet and confer with opposing counsel, at least five days before a responsive pleading is due, to determine whether the filing of an amended complaint would address the points you plan to make in your demurrer. Then (assuming opposing counsel doesn’t agree to file an amended pleading), you must file a declaration with your demurrer, specifying your meet and confer efforts. If the opposing party fails to meet and confer, you are granted an automatic 30-day extension to respond. See CCP § 430.41]
5. Objecting to discovery propounded before answer filed.
The plaintiff must wait ten days after service of the complaint before he, she or it can serve discovery. (And until the defendant appears in the action, it must be personally served.) There is no such limitation as to the defendant. As soon as the defendant receives the complaint, he can serve you with discovery, and even though he has not appeared in the action, he can serve that discovery by mail because the plaintiff has appeared. Look it up and stop objecting.
[UPDATE:] Well, this is more of a confession of ignorance rather than an update. For some reason, I get more emails about my prior parenthetical statement than anything else in this article. No, I cannot cite you to any authority requiring that a defendant be personally served with discovery prior to his appearance in the action, but it just makes sense. By way of analogy, if you personally serve a complaint, and then amend it before the defendant appears in the action, the amended complaint must be personally served. But once the defendant appears in the action, then you can serve an amended complaint at the address he, she or it sets forth in that first court document. To me, the defendant “agrees” to be served at the address he specifies in the first appearance document, and you don’t have that authorization until then. If you have actual authority one way or the other, please let me know.
[UPDATE:] Thanks to attorney Eric Zeiger, who took up the challenge and offers these thoughts:
C.C.P. §1013 subsections (a) and (c) reference the proper way for a party to serve documents via mail and express mail. In both sections, the Code states that the papers shall be deposited in a post office (and the like) and must include the following: (1) “addressed to the person on whom it is to be served,” (2) “at the office address as last given by that person on any document filed in the cause,” and (3) “served on the party making service by mail.”
In reviewing the plain language in (2) as mentioned above, if a party has not yet appeared in the case, there is technically no “office address as last given by that person” nor is there “any document filed [by that party] in the cause.”
6. Objecting to an amended complaint filed after service of a demurrer.
This one doesn’t happen very often, but I still see it occasionally and this embarrassment sometimes ends up in front of the court. I serve a complaint, the defendant files a demurrer, and after I review the demurrer, I decide the points are well taken and file an amended complaint instead of opposing the demurrer. I have actually received letters threatening sanctions for filing an amended complaint without leave of court, and have seen attorneys file a reply, outraged that I thought I could get away with just filing an amended complaint in response to a demurrer. My favorite was the attorney who wrote in his reply, “is it counsel’s plan to simply file an amended complaint every time we file a demurrer?”
Yes, you can file an amended complaint (once) without leave of the court at any time before opposition to the demurrer would be due. Here’s a very effective tip. If I file an amended complaint in response to a demurrer, I file a one-page “opposition” to the demurrer, just explaining that I filed an amended complaint, and citing the authority for doing so, hoping opposing counsel will read it and not do anything crazy. This should not be necessary since the filing of the amended complaint moots the demurrer, and the court will automatically take it off calendar, but a court once worked up a demurrer because it failed to see I had filed an amended complaint, and this procedure of filing an “opposition” avoids that.
The flip side of this is I see a lot of attorneys fighting clearly valid demurrers, when they should just amend the complaint. If the demurrer is well taken, just amend and don’t fight for the sake of fighting.
7. Failing to amend well in advance of demurrer hearing.
T
his one I see far too often. The other side files the complaint, I demur, and the opposing counsel files the amended complaint the morning of the hearing. Technically that is permitted [Not any more! See below.], but it is extremely jerk-like behavior. You forced the court to read and work-up the demurrer for no purpose. Don’t be a jerk. File the amended complaint on or before the day your opposition to the demurrer would be due. If you are pressed for time and unable to file the amended complaint before then, file a one page opposition stating that you are going to file an amended complaint. That will at least put the research attorney and/or court on notice.
[UPDATE:] The California Legislature agreed with me, and added an “anti-jerk” provision to CCP § 472. Effective January 1, 2016, any amended complaint or cross-complaint must be filed by the date the opposition to the demurrer is due, or the ability to amend without leave is lost.]
Even with motions other than demurrers, always keep firmly in mind the fact that the judge must actually read (although in some courts it appears that they don’t) and decide motions. Be sure to notify the court when the need to do so has been mooted.
In one of my cases, I filed a very detailed motion and the defense responded with an equally detailed opposition. As is my practice, I took out a legal pad, drew a line down the middle of the page, and went through the opposition, setting forth each point and counter-point, in preparation for drafting my reply.
I worked my way through the entire opposition, which concluded with this language:
In the interest of preserving the record, it was necessary for defendant to show the fallacy of each of the points raised by the motion. However, defendant does not oppose the motion.
I filed a reply to point out to the court that the motion was unopposed, hoping it would not unnecessarily go through my motion and the opposition. I had attended a seminar where a judge had explained that he works up motions by first reading the reply and working backwards. I was hopeful this judge would follow that practice.
When the tentative ruling was posted online, it stated only, “The parties must appear.” The judge wanted defense counsel there so he could explain to her that he had read and researched my motion, and then read and researched the cases raised in the opposition, only to then reach the conclusion and realize the motion was unopposed. He was not happy.
Don’t be a jerk with the court.
8. Objecting to “after hour” faxes and emails.
Our court rules require that notice of an ex parte hearing be given no later than 10:00 a.m. the day before the hearing. Sometimes, if I have something going on the next day, I will fax and email the notice before I go home the night before. If I’m working late, that notice might go out at six or seven o’clock.
That process sometimes generates letters and emails from opposing counsel, screaming how I sent out the notice “after hours”, and stating that I am never again to send notice by fax or email given my outrageous behavior.
Think before you type, counsel. I wasn’t required to give you notice until 10:00 a.m. the following day, but ever helpful, I gave you more than 12 hours of additional notice. In this world of mobile email, if you get my message, you have an additional 12 hours to adjust your schedule and plan your opposition. Absolute worse case scenario, if you don’t get the message until you arrive in the office the next day, I’ve probably given you a couple of extra hours of notice. You have lost nothing and gained everything by my “after hours” notice. If you are going to send me a letter, it should be to thank me for the extra notice. Heck, a fruit basket would be appropriate.
So fine, counsel, you just sent me a letter demanding that I never give you any more notice than is absolutely required under the statute. You like emergencies, and damn it, I’d better not do anything to keep this from being all the emergency it can be. Hey, no problem. My email lets me set the outgoing time. By all means I will take you off my courteous list and make certain you get those notices at the last possible moment.
Don’t immediately assume that everything opposing counsel does is for some nefarious purpose. Many years ago, I was co-counsel with another firm on a big case. We obtained a very large judgment for our client, and afterwards I got a call from the opposition, asking for the total amount with costs, attorney fees and interest, so the defendant could write a check and avoid the cost of those additional motions. When I called co-counsel, excited with the news, she said, “Don’t give them that information; they’re up to something.” She wanted to fight getting paid, because she immediately assumed opposing counsel had to be up to something. I was lead counsel, so I used my veto and gave opposing counsel the requested amounts, which they paid. The only thing they were up to was paying the judgment.
On the topic of ex parte applications, allow me to vent for a moment. Rule of Court 3.1206 provides as follows: “Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity. Absent exceptional circumstances, no hearing may be conducted unless such service has been made.”
Our local rules require that ex parte papers be filed the day before the hearing. Thus, once the papers are in sufficient shape to be filed, that by definition is “the first reasonable opportunity” to serve them. There should never be a situation where I don’t receive the application until the time of the hearing, unless permitted by the local rules.
9. Objecting to too few discovery questions.
Yes, attorneys really do write to me, objecting to too few discovery requests. Oh, they probably don’t realize that is what they are doing, but that is the result.
Here is how it comes about. Most attorneys think it is intimidating to serve 400 interrogatories and the like, as though you and your client will cave when faced with so much work. In reality, it just puts the judge on notice that you are an unreasonable attorney when I go to court and get a protective order that your client pays for.
The far better discovery method I use is to serve small sets of discovery, either based around a particular factual issue, like formation of the contract, or just as issues arise during the litigation. One of the big advantages to this approach is I don’t have to wait until I have a big block of time to draft all the discovery I want to propound. I can bang out a quick set of ten document demands to get the information coming in, and then follow up with additional sets later as the issues of the case begin to flesh out.
I don’t do this to make life easier for opposing counsel, but it does have the effect since he or she has to only answer a few discovery requests at a time. I’m okay with that because I’m generally a nice guy, but more importantly it has the benefit of keeping the matter in front of the opposing party. Those attorneys who think they are being clever with a massive set of discovery requests fail to realize that, once completed, the party won’t have to think about the case again until their deposition or trial.
So the attorney gets a set of interrogatories today, ten days later receives my document demands, and ten days after that gets requests for admissions. I have actually had attorneys complain to the court that I am harassing their client with multiple, small sets of discovery. How do you think the court is going to respond? “Mr. Morris, would you please hold back and send one large set of discovery to Mr. Jones, rather than sending smaller sets. Apparently Mr. Jones is having trouble keeping your discovery organized.”
10. Claiming the parties are not permitted to communicate with one another.
This is another one that happened just this past week. Unbeknownst to me, my client, the defendant in the action, decided to contact the plaintiff to see if the matter could be resolved informally. The meeting was actually pretty productive from what I have seen, and we are talking settlement. But I got a letter from opposing counsel informing me of this meeting, and instructing me to immediately notify my client that the parties to the litigation are not permitted to communicate.
This is not the first time this has happened. How do attorneys get this so wrong? An ATTORNEY cannot communicate with a represented party, but the parties can continue to communicate to their hearts’ content. The cynical part of me thinks that I get these letters specifically because the attorney is fearful that the matter will be resolved if the parties talk it out. Don’t make the false claim that the parties cannot speak.
This is different than a situation where one party does not want to talk to the other party. If you get a letter from the opposition stating that their client has requested that your client not contact him or her, of course you should ask your client to honor that request.
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Not sure if you still read this, but I’m wondering, if you are filing a motion to quash service for an unlawful detainer, would you file the document first to get the court timestamp, serve that via mail, and then come back to file the proof of service? Or would you serve the unstamped motion and then file the motion and proof all at once? If the latter, could you serve the day before filing?
Filing and service normally occur at the same time. Back in the old days, court documents were actually printed, with two printed copies going to court — one for filing and the other to be stamped and returned for the file — and the other going into the mail for service (with an UNsigned proof of service). Now most everything is filed and served electronically. You save the document as a PDF, and electronically file it with the court. During the process of filing the document, the portal also provides the opportunity to electronically serve the other side, so they are provided with an identical copy of what was just filed with the court. Now, the cynical among you might jump to point out that by this method, the opposition was served with a SIGNED proof of service, contrary to what I just explained. But the circumstance is different, since the document is being served electronically, and is not being mailed. You can attest in the copy that goes to the opposition that it was electronically served, because it was. Technically, when you created the PDF and dropped your signature into the proof of service, attesting to service, it had not yet been served, but I guess the courts are OK with that slight prevarication since they offer this joint method of filing and service, and the copy that goes to the court must be signed.
But back to your question. No, there is no need to take the extra steps you describe. I don’t do UDs, but in every area of law I have experienced you serve an unstamped copy when you file. And there is nothing wrong with serving the document in advance of the filing, so long as you accurately reflect the date of service on the POS.
I haven’t finished reading this, because I stopped short at the section about unsigned proof of service.
I am not a lawyer. I have, however, had to occasionally represent myself in some proceedings, and I was always baffled about the proof of service, since it seemed like I had to signed I had mailED it before I. . . mailED it. I always signed but felt squeamish about it–what if something happened and my car overturned en route to thee PO and everything blew away in the wind?
I’ll go back and finish the article now.
If you’ve been ordered to pay sanctions on a discovery motion within 30 days, and don’t have the money, what will or could the judge do about that at the next hearing?
The case of Newland v. Superior Court (1995) 40 Cal.App.4th 608 should answer your question. In that case, the trial court struck the defendant’s answer because he was three days late in paying the discovery sanctions. The judge’s order was reversed on appeal, with the court holding that “a terminating sanction issued solely because of failure to pay monetary discovery sanction is never justified.”
As the case goes on to say, “a terminating sanction is not necessary in order to enforce a monetary order. Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws.”
Bottom line: If the judge follows the law, nothing should happen for failing to pay a discovery sanction, beyond having the amount collected through normal collection methods.
So if a defendant who’s represented by an attorney responded to an email from the petitioners attorney (it was a early settlement offer ahead of the hearing) can the petitioners attorney use what was said in the email or the email itself as an exhibit at the hearing? TLDR they are using the email to prove that the email address is the defendants personal email
I’m not sure if you are focused on the settlement discussion aspect, or the representation aspect. I suspect it is the latter.
Interestingly, I just had something analogous occur on one of my cases. I received an email from the opposing party, intended for his attorney. As soon as I realized what it was, I stopped reading and informed opposing counsel. I did a little research, and the law does impose on attorneys a duty to protect attorney client privileged even for the opposition. I would not be permitted to use the information in the email.
Your facts are different, because the disclosure was intentional, but I would think the obligations are the same. The email was improper, because the party was represented, then the attorney was required to turn a blind eye toward it. How could he or she use it for another purpose?
Looking at it from the angle of the Evidence Code, very interesting question, and one that I have debated with judges on occasion.
California Evidence Code 1152 provides: “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”
The kneejerk reaction to any effort to bring in evidence from settlement discussions is that it is inadmissible. But look at the last phrase of the above quote: “is inadmissible to prove his or her liability for the loss or damage or any part of it.” If it’s not being offered to prove liability, then why is it inadmissible?
For example, in White v. Western Title, the defendant insurer had sent two settlement offers to plaintiff. At trial, over objection of the insurer, those two letters were admitted. The Court of Appeal found no problem with the admission of the two settlement offers, on the grounds that they were not being offered to prove liability under the policy, but instead to show the bad faith of the insurer.
In your case, if the email address is a point of contention, and the exhibit shows the email address, it should be admitted for the purpose, even if it was in conjunction with settlement discussions.
I think it is kind of funny that attorneys make mistakes under their procedural rules. When I think of an attorney, I think of someone who always upholds the law. So seeing them make mistakes and such seems ironic.
https://antibadlawyersandjudges.com/
Even worse when it’s the judges that don’t follow the law. I was retained to bring a motion for new trial, and the judge’s tentative ruling showed that she was going to deny the motion as being untimely. She was relying on the standard law and motion timeline, instead of the rule that applies to new trial motions. When I showed up to orally argue, she responded, “If you’re just here to tell me I’m wrong, I don’t see what that will accomplish.”
In section 5 above “Objecting to discovery propounded before answer filed.” You write in your update that “No, I cannot cite you to any authority requiring that a defendant be personally served with discovery prior to his appearance in the action, but it just makes sense”
CCP 425.11(d)(1) seems to perhaps be supportive your argument. The statute is on plaintiff serving statement of damages on defendant prior to a request for entry of default. It states that “If a party has not appeared in the action, the statement shall be served in the same manner as a summons”
This code section basically saved my ass. I (quite stupidly) failed to answer a complaint filed by the Plaintiff (my ex). It really needed to be a cross-complaint to the lead case I had prior filed on her, not a new complaint (I did succeed in getting her complaint consolidated). Anyhow, she personally served me with said complaint (at a custody exchange) then later served me with default notice and statement of damages by another means which I did not receive for a long time. The default was vacated in part because she failed to follow this rule.
Thank you for the additional support.
I recently made entertaining use of the rule requiring that the statement of damages be served before the default is taken, which I wrote about in another article. I was retained to bring a motion to vacate entry default after the client failed to answer a complaint. The plaintiff was seeking millions of dollars in damages. For reasons not important to the story, I was pretty confident that the judge would not grant my motion, but I wanted to make sure he understood that he could not award any damages by way of default judgment because the default had been entered before the statement of damages was served. As anticipated, he denied the motion to vacate, but ordered the plaintiff to show how he could award damages given the authority I had cited. Plaintiff could not do so, so the judge dismissed the action. Plaintiff’s counsel would have been far better served by recognizing his error and stipulating to vacate the default. Instead, he fought to keep it in place, and left himself with no out.
Mr. Morris, thank you for an excellent summary of these common friction points. Pertaining (once again) to the #5 parenthetical about the necessity of personal service of discovery upon defendant prior to defendant’s appearance, I read (phonetic: reed) the portion of CCP 1013(a) that you cite less divisively. In your most recent update to #5, you list 3 requirements for valid mail service (i.e., the language after “must include the following”). This was surely for the purpose of emphasis on your part (and quite reasonably so), but I was initially confused as to what the third element referred to (i.e., “served on the party making service by mail”). Reading 1013(a) anew, it seems that the code is referring to a document that has BOTH been filed by the defendant in the cause AND served on the party wishing to make service by mail. If this is taken literally, one might argue that the defendant’s appearance alone (via filing) does not suffice to effect service of discovery by mail upon them (if, for example, they do not serve their answer, demurrer, motion to quash, etc., upon the opposing party, which would in itself be quite the blunder). Nevertheless, I would take it that such an argument would be rejected by the court as (con)textually unreasonable, given the situation arising.
Your thoughts? Thanks again!
Hi Aaron – If you happen to still be monitoring this blog, I have a question. Defendant was personally served with a Complaint, and after 10 days we served discovery by mail to the Defendant. Following that, defense counsel filed a Motion to Quash Service of Summons (on grounds of allegedly improperly naming DOE). Hearing took a long time to get on calendar, but when it was finally heard, the Motion was denied. Defendant has now filed an Answer. We are preparing to send a copy of the previously served discovery to defense counsel to ask that they answer the discovery. My question is, are defendant’s discovery objections waived under CCP 2030.290 since they’ve never responded to the discovery? If not, do they automatically have 35 days from the time their Motion was denied to answer the discovery before objections are waived? Or does the discovery have to be re-served? What do you think?
My position is that until the defendant appears in the action, any discovery has to be personally served. So, under my interpretation, your mail service was never effective service. And I think your fact pattern serves to strengthen what I have always said. Here is my new argument.
When a defendant is served, they might have any number of reasons to claim the service was ineffective, and a motion to quash is the solution. It would be a strange circumstance indeed, if you could personally serve someone, and that person is allowed to specially appear to challenge service or jurisdiction, yet, while that is going on, a party would be free to serve them discovery by mail and start the clock ticking for a response.
So, I don’t think anything has been waived because the discovery was never properly served. In fact, until the defendant appears by answer, I think you are still required to personally serve any discovery since the motion to quash was only a special appearance.
Aaron, can you, please answer my question? When notice of rule form is filed by the clerk of court, are all lawyers listed on the form notified by clerk, or is it someone elde’s responsibility (Louisiana District Court)?
Sorry, I don’t check for comments every day. I can’t answer a case specific question from another state, given that it might be taken as legal advice.
My lawyer has filed a petition to annul legacy based on undue influence in the state of Louisiana. Me ex wife unduly influenced my Mother to leave half of her estate to my son. The attorney that represents my son in the matter is also representing my ex wife in financial matters concerning co-owned property and an heirloom diamond that was given to my ex wife by my parents. As executor of my Mother’s estate I am trying to argue that the property in question still belongs to my parents estate because we only made seven of 360 payments on the property. I am also arguing that the diamond should also be part of the estate (both of which would benefit my son), but she keeps arguing that the property and diamond are not part of the estate, benefitting my ex wife. The opposing council is keeping the petition to annul from going forward due to her wanting to protect the interests of my ex wife.
Is this a conflict of interest for which I can ask that the opposing council be removed? If so, could I make this petition to the court at an upcoming status hearing?
If the attorney of record is fired from her job at the firm, and notice of is provided to all parties which includes the naming of an associate in the firm as attorney of record replacing the fired attorney of record, can a third member of the same firm, such as a managing attorney for the office, file briefs in the case prior to giving notice and without written approval of the court naming the managing attorney as an attorney of record? Does the associate that was named as attorney of record need to first file with the court a motion asking to have themselves removed as attorney of record in concert with the managing attorney? ORS 9.320 can be read such that the stand-in associate will be the attorney of record until removed or replaced by the court. Does this mean that until the associate gets the court to remove themselves, officially, all filed briefs must be signed by that associate? So confusing, any insight will be appreciated.
I’m guessing “ORS” refers to an Oregon statute, and since I’m not licensed in Oregon, I can’t speak to your specific issue.
Here in California, the firm represents the party. Any attorney at the firm can sign a brief. If the lead attorney on a case leaves the firm, it would certainly make sense to notify the court and other parties so future documents are not directed to the former attorney, but there is no prohibition against another attorney filing a brief before that is made official.
Greetings,
Much appreciate the article. I am pro se in two cases surrounding the same minor child. Custody and visitation ( via mediated parenting agreement) and child support (interstate case). I understand you do not do family law…please switch over 🙂
Thanks for the advice about being mindful about where to focus my energy.
My opponent failed to appear via phone at our settlement conference for the custody and visitation case but his counsel was present. The conference resulted in
*Appointment of a BIA for our son per my request w/ $2,500 fee for each party
*Order for Custody Mediation NLT 7Jan 2019
*Show cause order for failure to appear
*Judge advised opponent’s counsel to encourage father to contact child – no contact to date [even on our son’s bday 🙁 ] – but stated she could not enforce the contact schedule in out agreement
*requirement to propound discovery by 3 Dec 2019 and finish by 7 Feb 2019
Today is 10 Dec 2019.
I served other party and his counsel my
Interrogatories and RPD after meeting with a lawyer in the self help section of the law library on the same day of the scheduling conference 19 Nov 2019. Nothing to date from the other side.
The mediator’s office reached out to me for times and dates. Then they reached back out asking for new dates since as my opponent said he was unaware of the mediation requirement. I also did not receive discovery requests from the other side yet. I emailed my opponent’s counsel asking him to advise on if my opponent is aware of all of the above but did not get a response.
Should I take any action regarding no discovery documents from the other side? I saw the info about lawyers complaining about “too few questions” I’m fine with no questions, but could that be to their advantage somehow?
Thank you for your time.
>> Should I take any action regarding no discovery documents from the other side?
Not sure I followed all that. If you requested discovery and received no reply, you should absolutely do something about that . But since you set forth the deadlines, I think you are saying that the other side has propounded no discovery on you. No, you should not do anything in that regard.
Aaron. Question: Who is a “defendant” for the purpose of propounding discovery before an answer or demurrer is filed? I have just objected to discovery propounded by an attorney who self-identified as “real estate attorney” for defendant-not trial counsel or litigation counsel for defendant. Discovery wasn’t signed by defendants and defendants have another attorney who represented that she represented defendants and has threatened to sue my client. Its been more that 3 weeks since I got discovery request, still no answer. Am I a jerk? Go ahead and be brutal.
The defendant is whoever is identified as defendant in the pleadings.
A strange situation. Normally there is no question as to who represents the parties. I fear that you are maybe being hyper-technical. The discovery should bear the name of the party being represented. But if you check the docket and that firm is nowhere to be seen, and this is truly a case where an attorney who does not yet represent a party in the action took it upon herself to send discovery, then you would be justified in objecting on that basis.
Great blog and article! I find it amazing how seldom you encounter another “by the book” practitioner in the real world. And honestly, how often courts allow conduct which violates the particulars of the CCP and CRC… Any practical advice on getting judges to follow the laws as well would be a great follow up. Cheers
>> Any practical advice on getting judges to follow the laws as well would be a great follow up.
Just keep pointing it out in your reply papers. If I wasn’t properly served, or some other rule wasn’t followed, right after the summary I include a section addressing the failure of opposing counsel to timely serve or whatever, for what it’s worth. Often, if you weren’t served on time and point it out to the court, the judge will respond by offering you more time to respond — after you already rushed to prepare a response and drove to court. Why would you want to go back to court a second time?
In the past, in particularly egregious cases, I have persuaded the court to impose a special notice requirement. For example, the court will require the opposing party to serve both by email and mail, then attach the email transmittal to the proof of service.
Regarding proof of service: How does one prove that an attorney didn’t actually provide the documents to the opposing party? — I was unrepresented, obviously, when I got served divorce papers. Before my attorney filed my counterpetion and was on record for me, my husband’s attorney filed several items to include financial records. I never received them. I eventually got acces to the court filings and my husband’s attorney filed a Proof of Service on each item saying that the documents were mailed to me. But if I had remained unrepresented, he would have continued to file documents and lie about serving me with them. This is clearly unethical, but what can be done about it? I can’t be the only person the firm or attorney has done or is doing this to. – My attorney doesn’t want to be bothered with what she says are trivial matters. I don’t think lying to a court is a trivial matter. I expected lies and financial concealment from my husband, but his attorney seems to be just as dishonest.
Service of documents, in large part, still works on an honor system. But it is an obvious source of abuse.
Thankfully, with the advent of court dockets being available online, much of that abuse can be spotted and addressed. We routinely check the dockets for all our active cases, and there is seldom a week that goes by that we don’t find a document listed on the docket that we never received. Being the trusting sort, I like to think that in most instances it was just an error, but patterns soon emerge and it becomes clear that some attorney just don’t serve their documents. I make note of it in every response, but the courts seldom do anything.
Great article! I just stumbled across this online, and have probably encountered 90% of these issues. I’m always arguing with opposing counsel (and sometimes my own staff) about not signing proofs of service before mailing, spot on.
Sorry to hear that, but thanks!
Hi Aaron,
I am going through a divorce and have a MSC date set for 9 May 2019. She has been representing me for 3 years. I have an outstanding balance and now wants a retainer for the MSC prior to 9 May. I am unable to come up with that kind of money at this point. I told her I would withdraw from my TSP but it wouldn’t be available that quick because my soon to be ex will have to sign. Her paralegal replied and said either I pay or sign the attached substitution of attorney leaving me representing myself. She already put my name on the form. Can she really do this 8 days before my court date??? (BTW, I live in CO and have to travel to CA for the MSC). Don’t I have a right to seek new counsel? Can I request for my date to be moved because if I am able to get new counsel or have to represent myself, she has not given me a adequate time to prepare. Please advise.
Sorry I didn’t see your question sooner. I hope you worked it out.
I’ll answer it anyway because this is an important topic that others may find helpful.
Once an attorney has appeared for a client in any type of litigation, that attorney remains the client’s attorney of record until (1) the client signs a substitution, or (2) the attorney files a motion to be relieved, which is granted. This is true even if the client is unable to pay. Even though the attorney will be miffed that the client is not keeping up with payments, they must continue to represent the client, at least to the point that it doesn’t prejudice the case. For example, if a deposition is scheduled, the attorney could take it off calendar so long as there is sufficient time to reschedule it with any new counsel.
So, if the facts are exactly as you have summarized, the attorney was bluffing. She cannot simply fail to show at the MSC, and will be subject to discipline if she does. I have on a number of occasions seen courts deny an attorney’s motion to be relieved as counsel, if they wait too close to the trial date. Clients and their counsel will sometimes conspire to get a trial continuance by bringing such a motion on the eve of trial, assuming the judge will take pity on the unpaid attorney and agree to continue the trial date so the client can find new counsel. But some judges, especially if there have been prior continuances, handle the problem by simply forcing the attorney to stay on.
And now the part I wanted to discuss. Absent some extraordinary circumstance, a client should never force an attorney to bring a motion to be relieved as counsel of record. Every fee agreement I have seen specifies that the attorney may withdraw at any time, and the client agrees to execute a Substitution of Attorney. By failing to do so, you are in breach of that agreement. I have no empirical data to prove the point, but I get the sense that this puts the client in very bad stead with the judge, especially in any case where credibility is important. When an attorney brings a motion to be relieved, he or she must specify the reason for the request. If the attorney states that you have failed to pay your invoices, then the judge knows that you breached the agreement to pay the attorney, and that you breached the agreement to sign a substitution. It gives the appearance that you were trying to hold the attorney hostage. You will get the chance to respond, and if you explain the extraordinary circumstances, such as the trial is a week away and there won’t be time to get a new attorney up to speed, then you might be OK. But absent such a circumstance, I think it makes the client look really bad. When the judge is deciding who to believe, he or she may remember that this is the party that did not have the integrity to adhere to the fee agreement and tried to make the attorney work for free.
>> Don’t I have a right to seek new counsel? Can I request for my date to be moved?
Absolutely, but don’t wait until the MSC to make the request. Instruct your attorney to go to court on an ex parte basis to reset the MSC date.
Hello and thank you for your time.
I have a couple of questions and need advice.
Been going through a divorce just about 2 years now. Month ago my lawyer gave me an invoice wanting $20,000 to continue representing my case. I dont have that kind of money, so am now going through this myself.
Here are some of my questions
1) How do I file a pleading sheet.
2) a. finding discrepancies from Production of Documents.
b. incomplete copies of requested forms
c. missing bank statements
d. extra money deposited $26,000 in the year from somewhere?
e. watt’s charge
f. scheduled assets and debits form, question # 23 page 4 of 4 credit cards
the answer is marked None. I can show on bank statement there are credit cards. When do i bring a,b,c,d,e,f up?
i. I did not receive a (proof of service) or a( Notice of continuance)
from the other party’s lawyer. what should I do?
i. What do I need to do if the other party’s lawyer files with the court stating (proof of service of notice of continuing by mail on 3/19/18 as to ___ ___ , filed. That was filed as of 4/9/19.
i. Notice of continuance re: status conference filed by ___ ____
that was also filed the same day 4/9/19
Thank you for your time Kris
If you are going to go it alone (and I completely understand that sometimes finances so dictate), then you must be prepared to do the necessary research. Based on your IP address, you appear to be here in California. I don’t do divorce law, but I can see from your questions that you are struggling with some basic procedural issues. Get yourself to a law library, and find the necessary litigation guides. On the civil litigation side, attorneys and judges all rely on Civil Procedure Before Trial, published by The Rutter Group. That same publisher has a set of guides devoted to family law. Since I don’t do family law, I have no idea what form you are referring to, but I’ll bet that the practice guide for family law will take you through that form item by item.
Thanks for pointing out that a good attorney won’t shy away from after hour communication, since it allows them the professionalism to give the opposing counsel additional notice. My husband and I need to find a criminal defense lawyer to defend his brother in a case about drug distribution. I think the info you shared about bad attorneys will help us as we start to search for a good one.
Not sure if you are still monitoring this blog but I have a question about the 2016 changes to CCP 472 and plaintiff’s ability to amend as of right. Plaintiff filed a complaint. Defendant 1 reached out with objections and said it intended to demur. Plaintiff agreed to amend to attempt to address the objections, filed and served a FAC. Defendant 1 was unsatisfied and filed a demurrer. Defendants 2&3 who had previously filed motions to quash service withdrew those motions and filed demurrers without a prior meet and confer. An opposition and reply were filed in the demurrer of Def 1. Two weeks before oppositions were due for Defs 2&3 defense counsel representing all 3 defendants reached out to meet and confer. Plaintiff agreed to amend based on two specific grounds raised in demurrer. Defendants demanded to preview and approve a proposed SAC before they would stipulate to allowing it. Plaintiff takes the position that defs have no right to approve the SAC because 472 allows an amendment following demurrer up to due date of opposition. Defs argue plaintiff has exhausted his once chance to amend as of right. Your thoughts?
I think “once” means once. My understanding is that if a plaintiff has amended the complaint without leave, that is the one and only time. For example, if you file a complaint, and then decide to amend it even before service of the complaint, I don’t think it would somehow reopen your right to amend without leave just because defendant then demurs to that amended complaint.
In your case, since the defendants are offering to stipulate to something beyond what is permitted, then I think they can insist that they review the complaint before stipulating to the amendment.
Here is what Civil Procedure Before Trial (The Rutter Group) has to say about it, but it just begs the question:
“Plaintiffs can amend their complaint once without leave of court before defendant’s answer, demurrer or motion to strike is filed. (The same rule applies to amendment of cross-complaints.) [CCP § 472; see Woo v. Sup.Ct. (Zarabi) (1999) 75 CA4th 169, 175, 89 CR2d 20, 24 (citing text)]
Moreover, if defendant files a demurrer or motion to strike, plaintiff has a right to amend the complaint without leave of court up to the date for filing an opposition to the demurrer or motion to strike. Plaintiff may amend the complaint after the date for filing an opposition to the demurrer or motion to strike upon stipulation of the parties. [CCP § 472 (amended eff. 1/1/18; 1/1/21 “sunset date”); see also ¶ 6:604.2]
This enables plaintiff to concede any error or objection to the complaint raised by defendant, or otherwise discovered, and immediately draft and file an amended complaint.”
E.Amended and Supplemental Pleadings, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6-E
Assuming the complaint can be amended to withstand a demurrer, another way to handle it is to oppose the pending demurrer and ask the court to grant leave to amend. As long as the plaintiff can cure the complaint by making the required allegations, it’s an abuse of discretion for the court not to permit the plaintiff to amend the complaint.
Ken Van Arsdel
Sr. Paralegal
~Specializing in Writs of Fealous Jage
Good point.
I find it’s always a good idea to argue in the alternative in a demurrer, as in, “The defendant’s argument is nonsense, but in the event this court doesn’t find it to be nonsensical, then plaintiff would amend to include the following allegation.” This as opposed to just making the argument and hoping the court grants leave to amend if it disagrees.
Aaron:
I read your section about discovery before someone appears in a case. The discovery statutes state that a Plaintiff can serve discovery 10 days after service of the Summons. There seems to be no carve-out on the statute that says discovery can’t be served by mail before a defendant has appeared. I would think that if the service is completed by someone of adult age and a non-party, the mail service of the discovery is fine. Can you point to a statute or case law that states otherwise?
Thank you
>> Can you point to a statute or case law that states otherwise?
No, but no one has been able to point me to a statute or case that says the contrary. As explained, personally serving the complaint doesn’t mean that the person has agreed to accept future service by mail. Look at it this way. What if a defendant was served on the street, or that classic law school method where the defendant is served on a commercial flight as it passes over California. Why would mailing the discovery then become proper?
Looking at it yet another way, if you personally serve a complaint, and then decide to amend it before the defendant has answered, can you just mail the amended complaint to the defendant? The answer is no.[Engebretson & Co., Inc. v. Harrison (1981) 125 CA3d 436, 442-443.]
I’ve dealt with this issue only twice in 22 years of litigating in California. I routinely serve discovery by mail 10 days after serving the complaint, and usually the other party accepts it without objection. This week I received my second objection ever – because the mailed service was to a corporation’s agent. CCP 1013 says you can serve by mail “at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party’s place of residence.” That “otherwise” clause is key. So with individual defendants whom I have served at home with the complaint (usually after a skip trace) I believe I have statutory authority to serve discovery by mail. I agree this is still an arguable issue, but I will continue to do it just to get the discovery ball rolling, and I always grant the initial request for an extension from the defendant.
I read that just to mean that if the party has no office address, then you can serve it at their residential address, but your interpretation is just as valid. I sometimes use the same approach. It shows that you are ready to move forward with this case, even if there is an objection. As you said, worst case scenario, you just agree to a date for the responses if the defendant objects.
Very helpful. Thank you. For your statement that “The plaintiff must wait ten days after service of the complaint before he, she or it can serve discovery. (And until the defendant appears in the action, it must be personally served.) – since you wrote this article, have you since found any authority re the requirement that the discovery on defendant must be personally served before appearance is made to be effective service? Dealing with that issue right now where I just made an appearance for a defendant that had been previously served with the complaint and then later served with discovery by mail before appearance was made. Is that service effective? Plaintiff is threatening a MTC if the discovery is not answered.
No one has been able to provide more detail on that point. In most instances it won’t come up. It is unusual for a plaintiff to serve discovery before the defendant has appeared in the action. Here is how I would handle your situation (assuming opposing counsel is not open to granting an extension). If your client did in fact receive the discovery, then I’d just rush to get it done so as not to fight about the issue. If the client did not receive it (in which case I’m not sure how you’d know about it), then I would just object on the basis of the failure to personally serve prior to an appearance, agree that you will deem service to be on X date, and timely answer from that date. You’ll be answering before any MTC could be heard, so it will probably just come down to whether your objections were preserved. If it does come to a MTC, maybe we’ll finally get the answer to our question about personal service before an appearance.
I have been practicing law for years and everything you wrote here is so true. Thanks for the great blog.
Thanks!
Im currently involved with a SC case where I had tenants evicted from my house in magistrate court. Now they have appealed their eviction to the circuit court.
They served my husband and I a notice of appeal by way of certified mailing. (all it says is you are hereby given notice of appeal – does not give any grounds or reasoning) However they never served the Magistrate Judge. The Magistrate Judge has responded to the circuit courts requests for a “return” with a letter stating that they were not served a notice of the appeal and therefore will not respond to it.
The appellants lawyer has issued an affidavit from his paralegal stating she “mailed” a copy of the notice of appeal to the magistrate judge through the us mail. Her affidavit does not say she served the notice nor filed the notice just that she mailed a copy of the one that was served on my husband and I.
They do not have a certificate of service on file.
They have filed 3 notices of appeal. The notice of appeal, an amended notice of appeal, and a second amended notice of appeal.
We filed a motion to dismiss based on the untimely filing of the notice of appeal with magistrate judge.
They have asked for that hearing to be continued 2 times now because they argue they still don’t have a return from the magistrate and therefore can not properly write their appeal brief.
What is the rule about serving and filing a notice of appeal to on a magistrate .
All I know about South Carolina is that the state bird is the Carolina Wren, which replaced the Mockingbird in 1948. I guess Mockingbirds had a weak lobbyist. I know nothing about South Carolina law.
As an academic exercise, I can tell you that in California, a notice of appeal states only the judgment or order from which the appeal is taken, and does not state the grounds. Further, a proof of service would not generally state that a document has been filed. But I don’t know about the procedures for serving a Magistrate. California has no such process. Your motion to dismiss should shine the light on any defects.
I am respondent. The petitioners mother hired attorney for her son after i put him on child support. She is insulted that he has to pay so she hired an attorney on his behalf which she admitted that she hires and pays for. He has a job. We were never married. Grandma doesn’t see or call or ask for child. I think she is taking me to court for vengeance. Her son has substance abuse issues. Anyway…his mother hired his lawyer and has had private meetings with the lawyer which she is not entitled to. Can I sanction this attorney for client Confidentiality? She is third party and counsel should know you are not allowed to discuss private case issues with a third party, not involved in our case.
OK, I finally understand the situation.
To summarize your question:
>> Anyway…his mother hired his lawyer and has had private meetings with the lawyer which she is not entitled to. Can I sanction this attorney for client Confidentiality? She is third party and counsel should know you are not allowed to discuss private case issues with a third party, not involved in our case.
The simple answer is no. I think you have some misconceptions about the attorney-client privilege. Communications between an attorney and their client are privileged, but the client holds the privilege. In other words, the attorney must not disclose any communications between the attorney and the client, but the client is free to say anything to anyone (subject to waiving the privilege).
In your case, opposing counsel owes no duty to you, and is free to talk to anyone about the case, including the petitioner’s mother, subject to the limitations imposed by the client. It is frequently the case that an action is bankrolled by someone other than the party to the action. For example, an 18-year-old driver gets into an accident without insurance, and his parents pay for an attorney. The 18-year-old will likely authorize the attorney to tell the parents everything about the case, and indeed the parents may become the primary point of contact with the attorney.
So your statement that his mother “has had private meetings with the lawyer which she is not entitled to” is a non-sequitur. So long as it is OK with the son, the mother can meet with the attorney and the attorney is free to disclose everything he or she knows about you and the case.
However, attorneys sometimes get themselves into trouble, because they forget that such third-party communications are not covered under the attorney-client privilege. Unless the attorney represents the mother in some capacity relating to the case, you or your attorney would be able to ask about those communications through discovery.
Special reply to Pro Se 2015:
“The supreme art of war is to subdue the enemy without fighting.”
― Sun Tzu, The Art of War
What if a lawyer breaks client privilege/confidentiality?
Like if opposing party counsel speaks with a third party about the case, but the third party is not part of the case?
What can be done? Sanction?
I’m not sure what you are asking.
Plaintiff’s counsel, for example, has no duty to the defendant to maintain any confidentiality. Attorneys can, and frequently do, talk about their cases, to the point that some hold press conferences to tell their client’s side of the story.
Is that what you meant?
No
On family case, plaintiff (not a minor) mother hired the attorney on behalf of plaintiff and is not part of the case. Discusses personal information with plaintiff counsel regarding case about respondent. Mother is the third party, grandparent to child in case
I’m still not following, I suppose because you are not identifying who is the aggrieved party, you are switching between plaintiff and respondent, and I can’t figure out how you’d have a plaintiff in a family case. Further, mother can’t really hire attorney on behalf of plaintiff. But it’s kind of like solving a Sudoku puzzle, so let me try.
Husband is getting a divorce, can’t afford attorney, so his mother pays the attorney. Mother is concerned about custody issues, because she doesn’t want to lose time with her grandson, little Billy, who adorably calls her “Maw Maw’. The mother/grandmother, since she is paying the bills and is concerned about custody, wants to make sure her money is being put to good use, so she discusses the case with her son’s attorney. You are asking if the husband has a beef against the attorney for discussing his case with Maw Maw? Where does the “opposing party counsel” you mentioned in your original message come in?
What kind of sanction is given to an opposibg counsel for unethical behavior/lying? I have a motion to compel hearing and wish to request to sanction opposinf counsel. If it wasn’t for her behavior, I wouldn’t have had to file this motion.
Hi Aaron. The case is in Florida. Our rules of procedure do indicate that it can not be ammended without leave of court. So, do we still stand on an invalid petition? I did file a motion to dismiss the case but the motion hasn’t been approved, or denied, yet. The family law area if the court even told me she would have to reserve me all over again. She reuses to even mail me documents. She persistently has added me to the eportal system without my authorization, or designating email form. I don’t mind that she emails me but I did ask her to mail me hard copies to my home address and she refuses to. I don’t have any copies of files she’s filed I’m court and over a month after I filed a motion to compel, she lies and says she doesn’t know why I filed it because she has mailed me all the copies like I asked her to. I couldn’t believe her dishonesty. I,on the other hand, HAVE mailed her copies of everything I’ve filed,certify mail, for proof of setvice. She, refuses to mail me. anything. I’d like to know what proof she will come up with to the judge once he requests it…oh wait, she filed a motion for telephonic hearing now,5 days before hearing lol.
I LOVE this. Thank you for posting Aaron.
I am going thru a custody case. I served my ex with child support and he is now taking me to court for equal shared parental custody. He is an alcoholic and drug addict. He has years of records, felonies, tested positive several times with cocaine, etc. I’m hoping the judge will take that into consideration along with other new evidence I have. Anyhow, he is the petitioner. For one, I believe his attorney is a friend of the family. She’s in a different county and she’s also making these horrible mistakes. His mother notarized all the documents so I asked to dismiss the case due to the now invalid notary. Opposing counsel amended the petition without leave of court. She just filed the amendment. Is this still considered valid petition? It states it clearly that a complaint cannot be amended without leave of court. She also refuses to mail me any copies of anything. When I asked her to mail me everything she’s efiled, she stated nothing will be mailed that everything is done thru the portal. I did not designate an email though she has my email and when I filed a motion to compel, she didn’t oppose to it. We are set for a hearing and now she’s emailing me stating she has mailed me everything from the beginning. I laugh thinking is this lady for real?? She clearly stated she will not mail me anything thru the mail.
J, thank you for the kind words.
>> Opposing counsel amended the petition without leave of court. She just filed the amendment. Is this still considered valid petition?
I suspect you are writing from outside California, perhaps Florida, and I have no idea what the procedures are in that state. In California if a complaint or petition requires leave of the court, and one is filed without such leave, it is a nullity. But that means nothing unless it is pointed out to the court. In my state, I would file a motion to strike the improper petition, so that later on the opposition cannot claim I obviously had no objection to the amended petition since I never did anything about it.
You didn’t ask a question in this regard, but that won’t stop me from pontificating on another matter.
Every week I receive calls from self-represented parties who are overwhelmed by the litigation process, to the point that they advocate dismantling the whole thing and starting over. But when they tell me what they’ve been doing in the case, I realize that their frustration with the system arises from the fact that they have devoted many hours to pointless activities.
Just this week, I received a call from a woman who had filed for a fee waiver, in order to avoid paying the $495 first appearance fee. The judge considered her financial situation, and denied the request. Under her interpretation of the law, the judge had no power to deny the request, so she filed an appeal. The appeal was rejected, presumably because it was from an interlocutory order, so she filed a writ instead. That too was denied, so she filed another writ with a different request for relief. She explained that she was confident that the Court of Appeal would this time grant the writ, but she wanted me to begin getting up to speed on the case in the event it became necessary to take the issue of the fee waiver to the Supreme Court. She explained that she was devoting hundreds of hours to the case, what with the appeal and repeated writs, and that it was ruining her health. But her misery was all self-inflicted. Nothing she had done to that point was necessary to the case.
Procedural objections have their place, but always keep reality in mind. Some self-represented parties approach litigation with the belief that they can avoid the merits if they can just catch the opposition in some procedural screw up. I’m not saying this applies to your particular situation, but let me use the example of the notarized documents as a hypothetical to illustrate my point.
A document is notarized just to confirm that the signature on the document is really from the person who purportedly signed it. So along comes a party who realizes the other side used his own mother to notarize the documents filed with the court. They do a little research, find out that a notary is not supposed to be related to the party or hold any conceivable interest in the matter at hand, and on that basis declare that the notary process was invalid and move to dismiss the case on that basis.
But what is the reality? Is there some reason to believe that the documents were not really signed by the person who claims to have signed them? If that issue is genuinely in dispute, then challenging the notarization might be appropriate. If not, then doing so is likely a waste of time.
The amended petition is another such example. In California, the courts are required to freely permit amendments to pleadings. I recently had a case where opposing counsel took a remark by the judge to mean that he could file an amended complaint with no leave to do so, which he did. I could have moved to strike, but to what end? He would have simply responded to my motion with a motion to amend, which the court would have granted. Instead, I just stipulated that the amended complaint was invalidly filed, but could be accepted.
Two questions. What is considered burdensome as far as discovery? I am a pro per in a medical negligence case. Didn’t want to be, but I have no choice at this point. I lost the last year of my life to a pharmaceutical as well as all my savings. Also, I filed a request for default against one of the defendants and a few days later got the discovery requests. Should I answer it or wait until after the motion to set aside the default, which I assume they will ask for and get? (Which would put me past the 30 days.) What they are asking for would take weeks and voluminous amounts of paper (in addition to depo and interrogs, 53 items to produce, each one entailing dozens of pages….
>> What is considered burdensome as far as discovery?
It just comes down to a reasonableness test — is the requested information admissible or likely to lead to admissible evidence? To be absolutely precise, C.C.P. Section 2017.010 sets forth the relevance standard as follows:
“Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”
Some plaintiffs (especially self-represented plaintiffs) file actions and then feel that their cause is so just and apparent that they shouldn’t have to produce any evidence. Remember, the defendant gets to use discovery to explore ITS version of the case. But if you feel that discovery is being used for an improper purpose, bring a motion for a protective order. I will tell you, though, that 53 document requests is NOTHING in a medical negligence case.
>> Also, I filed a request for default against one of the defendants and a few days later got the discovery requests. Should I answer it or wait until after the motion to set aside the default, which I assume they will ask for and get? (Which would put me past the 30 days.)
If the court defaulted the party, then they are no longer permitted to participate in the action, and that would included discovery. You have no duty to respond to the discovery until the motion to set aside the default is decided. But if you are confident the motion will be granted, treat it as a gift of extra time to begin preparing your responses.
Hope this helped, but please don’t take it as legal advice.
Thank you.
I really liked your article. I clicked on it because I filed a restraining order and opposing counsel is an idiot. The first papers he sent to me had his clients names wrong. He has listed himself as counsel for the plaintiff (that would be me). Now he filed a motion…..for…the plaintiff (again…still me). I am trying to figure out if I can withdraw the motion. I didn’t file it, but it’s filed under my name. I don’t want to get myself in trouble and I can’t find anything about this type of situation.
Stephanie,
I like the way you think.
I once had a case where a corporation sued my client, but the corporation was suspended by the Franchise Tax Board (I’ve had many such cases; that’s why you should always check the status of the opposing corporate party). I brought the usual motion to strike, and while we were waiting for the hearing date, my client, without checking with me, paid to revive the corporation and took some other steps he felt would make him the new owner of that corporation. He reasoned that if he in essence BECAME the plaintiff corporation, he could then dismiss that corporation’s action. Clever, but such technical shenanigans generally don’t withstand scrutiny.
Take your situation. Is the opposing counsel REALLY bringing a motion on your behalf? If I looked at the notice, would it say, “Plaintiff Stephanie hereby moves [to do something the plaintiff in the action would logically do]”? Or is it a situation where opposing counsel is just confused about the parties, and is using your name where defendant’s name should be, but is moving for the sort of relief the defendant would seek?
If the type of motion makes clear that it is being pursued by the defendant, then yes you would get in trouble if you tried to use the mistake in the name to withdraw it. You don’t identify the motion, so let me use a hypothetical. If you filed a complaint, and opposing counsel was so confused that he filed notice stating that “Stephanie demurs to the complaint . . .”, it would be clear that it is the defendant who is demurring.
But if he is genuinely so confused that he is actually bringing a motion on your behalf — the sort of motion only the plaintiff would bring — even then I think you’d get in trouble if you tried to withdraw it. The judge would wonder why you didn’t just pick up a phone and say, “Dude, you don’t represent me. Withdraw that motion.”
It has never happened to me, thankfully, but I do on occasion see situations where the attorney-client relationship isn’t very good, and the client actually does file something with the court, taking exception with a motion the attorney filed or the statement of facts. In those cases, the court ignores the papers filed by the client, because a represented party can only speak through the attorney.
Bottom line. While I appreciate your out of the box thinking, do not try to withdraw a motion filed by opposing counsel. If the identification of the parties is a scrivener’s error, point it out in your opposition. And if the attorney really is bringing a motion on your behalf, call him and tell him to withdraw it.
Of course, none of this is legal advice. Like opposing counsel, I don’t represent you.
They filed a motion to substitute the judge. On thier header, they refer to themselves as “attorney for petitioner”, but in the motion itself, there is no reference to petitioner or respondent. I am really at a loss. I feel like because I have so much evidence against them they are just trying to make this as difficult for me as they can so I will drop it.
I found your article to be very interesting!
At a court hearing, my attorney and the other attorney stepped outside of the courtroom to discuss my objection to the amount and timing of the payment as per the judge’s instruction. I tried to join them but I was told to go back in the courtroom. The other attorney said that he would not allow me out there without his client present. His client was in the courtroom so he could have joined us. I do not understand why I would not be allowed to listen to their discussion. Is this misconduct?
Jennifer,
I’m glad you found the article interesting.
You gave a lot of specific details in your comment, so I edited it down to just the set-up for the question.
No, it is not at all misconduct to exclude the parties from a conversation between the attorneys. I tell attorneys to always be mindful of the impression they are creating with their clients. Clients often view the opposing counsel as evil. This is the attorney who is representing the other side — the side that is attempting to deprive the client of money or some right — and yet the client sees their own attorney yucking it up with the attorney who is representing evil. Similarly, a client can be left with the impression that the attorneys are somehow colluding if the client is excluded from conversations.
But with that said, it is often essential for the attorneys to talk without the clients present. In your case, opposing counsel did not want to create a situation where his client was left to wonder why the three of you were talking without him being present. And even if the other party didn’t care if they were included in the conversation, it is often awkward to try and have a conversation with opposing counsel if the other party is present. A lot of useful information can be gathered during conversations between counsel, so if such a conversation can only occur without you being present, you should not be offended.
Wonderful article Aaron! Have you ever had a situation where the Judge does not rule on ‘leave to amend’? I had a horrible judge dismiss our complaint and didn’t state whether we had leave to amend. He didn’t even use ‘with or without prejudice!’
Thank you for the kind words.
I can’t reconcile some of your terminology. You state that the horrible judge dismissed your complaint and did not state whether you had leave to amend. A dismissal is a dismissal. It ends the action. There is no circumstance where a judge would or could dismiss a complaint with leave to amend.
Let me provide a couple of scenarios that might have arisen in your case, given the terminology you are using.
A judge will sometimes dismiss a case on his or her own motion, often because the plaintiff is not showing up for hearings. Typically the court will set what is called an order to show cause (OSC) re dismissal as a last chance, and when the plaintiff fails to appear, the case is dismissed. That dismissal is almost always without prejudice, meaning that the plaintiff can re-file the action (assuming the statute of limitations has not passed).
But it sounds like you may be referring to a demurrer situation. You state the judge “did not rule on leave to amend.” When a defendant demurs to a complaint, it is like an objection to the complaint, and the judge either “sustains” or “overrules” the demurrer (most will refer to the demurrer as being denied or granted, but that is not technically proper). If the judge overrules the demurrer, the case proceeds. If the judge sustains the demurrer, that means the complaint was improper in some way. The judge can sustain with leave to amend, which gives the plaintiff the opportunity to file an amended complaint, or the demurrer can be sustained without leave to amend, and then case is then over (if the demurrer dealt with all the causes of action).
The only way I can reconcile your use of the words “dismiss” and “leave to amend” in the same sentence, is if this was a demurrer situation. If this was a demurrer hearing, and you left the hearing with the impression that your case had been dismissed, then it sounds as though the demurrer was sustained without leave to amend, ending your case. You should get a copy of the minute order from the hearing to confirm what occurred.
Of course, none of this should be taken as legal advice, especially since I am totally speculating as to the circumstances of what you perceived to be a dismissal.
I hope this helped.
If all defendants are represented by one attorney, is the notice to the attorney recognized as service if I can’t find one of the named defendants?
I don’t know what you mean by “notice to the attorney” or, for that matter, “represented by one attorney.” Represented in what way? For example, say I send you a letter, stating that I represent Joe Dokes, and demanding that you pay $10,000 for a breach of contract. You quickly prepare your own complaint against Joe Dokes, and send it to me. That would not be valid service. Even though I “represent” Joe Dokes for purposes of my demand letter, that does not mean I will represent him in litigation. You’d still have to serve him personally unless and until I agree to accept service on his behalf. But your use of the word “notice” concerns me. Once an attorney has appeared in an action on behalf of a party, then you may serve the attorney for all purposes. There generally would not be a scenario where you would be serving any of the defendants who is represented by an attorney. So, if the attorney represents multiple defendants in an action, in the sense that he has appeared on their behalf, then yes the notice to the attorney is proper service. But your question doesn’t make any sense in that context, because you are implying that you are searching for a named defendant. If you clarify the question, I’ll try to give a better answer. Of course, as always, none of this is legal advice.
Hi Aaron,
Similarly in SamE’s question, I filed 2nd amended complaint and served defendants’ counsel electronically (via email), and we have exchanged documents like that before. This time, she waited 2 days later and said: “We did not consent or stipulate to accept service of the second amended complaint on our clients’ behalf”. This is unlawful detainer complaint and I was able to get temporary restraining order to get the husband out of my house. But the wife is still at my home. We have had hearings on demurrer and ex-parte applicatio where opposing counsel’ appearance have been confirmed on record. Is she trying to play dirty game with me?
>> Is she trying to play dirty game with me?
Probably. The argument is really stupid, and I don’t know why some judges buy into it. I’ve written here before about a judge who concluded that my service was defective because, even though I properly served by email, I had also sent a courtesy copy by email. The judge apparently thought that an emailed copy somehow cancels out the mailed copy. When a client wants to spend time and money on a motion to quash, based on some perceived lack of proper service, I respond, “So you want me to stand in front of the judge and argue, ‘Your Honor, my client was not properly served with the complaint that I have right here in my hand.'”? Objecting to service by email is much the same. “Stop emailing me documents that I am obviously seeing because I’m sending you an email to stop sending me documents in that manner.” But with all that said, best not to serve by email without the necessary authorization, lest opposing counsel try to use it against you as in your case.
I filed a civil case in pro per I did not answer the demurre in time, however, the judge sustained the demurre with leave to amend. I have not a clue as to what the judge said in the hearing once I file the amended complaint will I have to file another answer when/ if they respond
Also if I can’t find one of the defendants named in the suit is the notice to the attorney enough? One attorney is representing all the defendants
I fully understand that sometimes people don’t have the resources (or desire) to retain counsel, and have to go it alone. But if you go that route, you have to put in the time to research the applicable law and procedures, so you don’t get run over by the system.
So, I understand that you filed a complaint and the defendant demurred. You missed the deadline to respond to the demurrer, but thankfully the judge granted you leave to amend. This is not uncommon, but the judge is only going to give you one or two more chances to get the complaint right. Be very precise with your use of legal terms. You ask if you will have to “file another answer” when they respond. You are the plaintiff. You don’t file answers. What you probably meant is whether you will have to respond if the defendant demurrers again. The answer is yes. You must file an opposition (on time this time) to the demurrer. If your amended complaint did not address the points raised in the first demurrer, and is still deficient, the court may sustain the demurrer without leave to amend, and your case will be over. If defendant does demurrer again, take a very careful look at the grounds for the demurrer, and determine if they can be fixed in another amended complaint. In your opposition to the demurrer, explain to the judge how you can address the deficiencies of the complaint. The judge may give you one more chance to amend if you can explain how you will fix the complaint. Understand, though, that many self-represented parties (and attorneys for that matter) file complaints under theories that just won’t pass muster. It may be that your complaint can’t be saved.
Of course, as always, none of this is legal advice.
Aaron great article. I have a question, regarding question 9 Objecting to too few discovery questions. (Brief description of my case) I received discovery and interrogatories for a child support case. I responded 2 times the second time after I spoke to opposing counsel were they claimed I did not provide all documents. I complied to further requests, the entire time counsel suggested filing a motion to compel. I was served on 7/27/15 for original discovery I gave response in the allowed time for both the 1st and 2nd request. 2nd request was made over the email. Still no motion to compel it is now 10/1/15. On 9/29/15 I was served with 5 subpoenas (via usps mail) 2 of the subpoenas requested are items that should have been requested along with credit card statements in part of the discovery which where given to counsel (credit card statements).
Now my question: Is there a discovery period or does counsel have a right to continue by way of subpoena?
Nothing I say here should be construed as legal advice, and that is doubly so in your case since I don’t do family law. There may be family law rules of which I am unaware, but I will respond from a general civil litigation viewpoint.
I’m a little unclear on the nature of the subpoenas of which you speak. There can be subpoenas to third parties, and you can serve a subpoena to a party, but that is normally only done for trial.
I also don’t understand what you mean by “the subpoenas requested are items that should have been requested along with credit card statements”. There is no “should have been requested” standard in discovery.
Here is all I can say, that will hopefully cover what you are asking. If I serve document demands that asks for your credit card statement for the month of January 2014, and you never provide that document, after the time has passed for me to move to compel you to produce that document, I can’t just send you another document demand asking for your credit card statement for the month of January 2014. But the case law is very clear that I am still free to use other forms of discovery. I could, for example, set your deposition, and include a demand for production for that credit card statement. I can also serve you with a subpoena, demanding that you produce that document at trial. (More commonly, I would just serve you with a “Notice to Produce”.)
I hope this answered your question.
I enjoyed your article although I did not understand half the terms :). I recently filed a motion to compel my landlord to evict upstairs nuisance neighbor synonymous with filing small claim tort against said neighbor. Landlord called me to let me know his lawyer advised they wait until after the outcome of my small claims suit to take action. What does one have to do with the other? Anyhoo, I digress. Great article!
I don’t really see the connection either, but I imagine your landlord was hopeful that your small claims action would somehow resolve your issues with the neighbor.
This is nice. I’ve always had an issue signing a cert of service and filing it on same day; i.e. I know I’m not certifying to the opposing counsel I served…they have it in their hands! Only the court cares. But lots of offices insist it’s “best practice” to sign and serve the signed version. I ran into one attorney who basically said he wasn’t served by email as my cert said he had been (allowed in Texas)…and his response that he wasn’t was in in the email chain with the copy attached. Whee.
keep writing!
OK, I will! Thanks for the kind words.
Hi Aaron
I currently have full legal and physically custody of my children, after 3 months, father has filed for modification of custody and visitation however failed to serve me timely. His “paralegal” sister demanded that I accept service at a time convenient to her and indicated that there were no process servers available to serve me. I provided a service address (my employment) and told her the specific hours I would be there. She then responded that she could not make it to serve me because she works late and that the process server was unavailable. She now demands that I meet her at a later time in the evening 9pm or later and I cannot do so. I have 2 small children under 20 months that I will not pack up and drive to meet her late at night. I might also add that I have a restraining order against dad for 1 year and am not required to provide my home address. She began threatening that she would do whatever steps appropriate and accordingly due to my behavior and lack of “wiggle room” her exact terms. Mind you they filed these documents 4 weeks prior to deadline for service. Can the judge reprimand me for not wanting to meet late at night or waive the service deadline?
I had an attorney substitute in on my pro per case; later the defendants mailed demurs to me in regard to the amended complaint (I was ordered to do adding another party who later asked to be dismissed). The defendant has never served these demures to my attorney. As this is an FDCPA violations case a)isn’t this another violation of of the FDCPA by contacting a party with an attorney and b) can we request to have these dismissed because of lack of proper service and what is the correct code regarding service.
Have you ever heard or talked to one of those people who claim that dollar bills aren’t legal currency because there is an eye above the pyramid, which is obviously a secret message to the Freemasons, making the dollar bill a violation of the separation of church and state? (Those are the people I always get seated next to on long flights.)
While that may all be true, Starbucks still accepts dollar bills, so claiming that it is not legal currency is an abstract argument at best.
In litigation, always make sure you are not making a dollar bill argument. I see this a lot with motions to quash. “Your honor, service should be quashed, because I was never served and therefore have no knowledge of the complaint . . . that . . . I am holding . . . here in my hand as I make this argument.”
Most attorneys create a Proof of Service (POS) in the directory, and when they serve future documents, they pull up the POS and change the date and name of document being served. When a new attorney subs in, sometimes the attorney or their staff don’t remember to go change the POS, and the next document served goes to the old attorney (or here, the self-represented party).
The situation is resolved with a letter or email to the attorney, politely stating, “hey dummy, fix your POS.” Attempting to make something of it would result in that moment before the judge, where your attorney would be arguing, “Your Honor, I want these demurrers rejected, because I never received the demurrers, that . . . I’m . . . holding here in my hand.”
Nothing I say here can or should be taken as legal advice, and that goes doubly so in your case since I don’t do family law.
This might be some weird family law procedure of which I am unaware, but I can’t imagine that the law requires a party to meet the other side in order to accept service of a court document. Perhaps it’s because you got the judge to agree that you don’t have to provide your home address, but you said you provided your work address, so what’s the issue?
But in answer to your specific question, a judge can reprimand you for anything, warranted or not, so all you can do is all you can do. As long as you act reasonably, you should be fine, and I think it is entirely reasonable to refuse to jump through the hoops being proposed for your service.
Defense atty. filed demurrer, set a hearing date, sent me a copy of the demurrer with proof of mailing. I opposed and appeared in court for the hearing. Court informed me the date was a month later, and gave me copy of court stamped filed, which showed a different date then what my did. the proof of mailing on court record is dated same as mine, but two diff. dates. .hearing date is over 60 days from the date of mailing ( 35 day rule CRC 3.1302(a)
should I raise objection on those grounds
William,
The section you cite, CRC 3.1302, has nothing to do with what you are discussing. You probably meant CRC 3.1320, which as of 2016 contains a number of new rules as relates to demurrers, including a provision that the hearing on a demurrer has to be held within 35 days (instead of the prior 45 days).
That section does not require a hearing within 35 days if the court has no available hearing dates within that time, which is usually the case with most courts. I file a lot of anti-SLAPP motions, which are supposed to be heard within 30 days, but I’d estimate that fewer than 20% of courts can accommodate that requirement.
My practice, when opposing counsel fails to comply with procedural requirements, is to start the opposition papers with a section outlining the violations. I put it up front because, if the research attorney is looking for a way to avoid working up the motion, it gives him or her an easy out. Generally, though, the court won’t deny a motion on technical procedural grounds unless there has been prejudice to the other side. Here, you actually had the opportunity to take more time to prepare your response, but you could argue that the hearing date (if it was not necessitated by the court’s docket) prejudiced you by taking longer to resolve any issues with the complaint.
Tanks for your insight to my question. Why do you suppose they even have a 35 day CRC, when it is never enforced or used
As a goal. Some courts are able to comply, and when the economy gets better and case loads lessen a little, some judges who actually strive to follow court rules will do so.
Hello. Could you clarify the following. Staring 1/1/2015 California passed code 218 stating that with any postjudgment motion, Discovery is immediately reopened. But… do time limits still apply? Does respondent to Discovery still have 30 days to respond? And if so, since most motions take place 30-45 days out, it is not even possible to timely serve Discovery, right? So it is enough to just claim it is untimely.
Wish I could help, but that’s a Family Code section. Not one of my practice areas.
My mom passed 3 years ago and legally put me in charge of my mother’s estate. I have 2 sisters that have been taking me to court to gain control. Three times that her and her lawyer petitioned the court to appear in front of the judge to try and have him over rule this they did not inform me, my lawyer (of the estate) nor my third sister who is also apart of the estate. How can I show proof that her lawyer messed up?
I don’t know what you mean by “lawyer messed up”. If the opposition in a case fails to give proper notice, you inform the court of that fact as soon as you find out.
Great Article, I am a pro se litigant, and the defense council just answered to my first amended pleading , denying every allegation in it. However, they ignored my second amended pleading that was filed with the court and served to them shortly there after. I would think that since they did not answer my second amended pleading that they admit or agree with everything stated in that pleading, would I be correct in thinking that? I feel that their mistake or oversight is to my advantage. Am I right in thinking so?-
As long as you promise not to take this as legal advice, I’ll give you my thoughts. So stipulated?
If you filed your complaint and the defense counsel answered, “denying every allegation in it” as you put it, then my first question is how were you able to file an amended complaint? Once defendant answers, then you can’t file an amended complaint unless you request leave to do so, and that leave is granted. If you filed an amended complaint without permission, defense counsel is not required to file a response. (Often they will bring a motion to strike just to be safe, but it is not required.)
Let’s now assume that you did have permission to file an amended complaint, and after doing so, defense counsel never filed an answer. That really means nothing (and it certainly does not mean that they agree with everything in your complaint). It is a common mistake, because in counsel’s mind, he or she has already answered the complaint, and sometimes attorneys forget to file another answer when an amended complaint is filed. Technically, if the defendant fails to respond to the amended complaint before the deadline (usually 30 days), you could file a Request for Entry of Default, but it’s not only a pointless act, it is extremely discourteous. Where I practice, the local rules specifically state that the plaintiff should first inform the defendant of the missed deadline before requesting a default. Even if you did have a default entered, the defense counsel would simply file a motion to vacate, with a mea culpa declaration, and the court is required to grant relief.
So, to summarize, if you filed an amended complaint without permission of the court, don’t expect to see another answer. If you were granted leave to file a complaint and defendant simply failed to answer, be a class act and notify defense counsel of the missed deadline.
Of course, this all assumes you are in California. (Why else would you be asking a California attorney a procedural question?)
i love this article. I have brought to my attorneys attention various ‘treats’ that my husbands attorney makes; that is not within the law and she continue to say well that attorney can just say anything. She never questions her or hold her responsible. For instance my spousal support, I have to send several emails to my attorney requesting my spousal support, my husband even bounced my check and would not pay the fees. My attorney still would not say anything, instead she talks to me as if she is my parole officer.
Great Article. Thank you.
Question please: Can Plaintiff serve Discovery when Defendant has filed a Petition to Compel Arbitration and Motion to Stay Litigation? Does Defendant have to provide the requested Discovery before the Decision on the Motion? The hearing is in 2 months and I don’t want to wait to serve discovery. Thank you.
If you promise not to treat this as legal advice, I’ll give you my thoughts. So stipulated? OK.
The ultimate determination will come down to whether the matter is, in fact, subject to an arbitration clause. If it is, then it won’t matter whether you can serve discovery. If you serve it, defendant will object on the grounds that the matter is subject to arbitration and the court therefore has no jurisdiction. You will then move to compel, and the court will decide who is right.
If your question is whether there is an automatic stay that arises just because the defendant brings a motion to compel arbitration, the answer is that I am not aware of any such rule. Go ahead and serve your discovery so that it will be in the pipeline. If defendant objects, you can decide whether a motion to compel is warranted. If defendant objects, and you don’t move to compel, and the court eventually finds that the matter is not subject to arbitration, then you’ll have to meet and confer with opposing counsel to come up with a deadline to respond to the discovery. At best, it might get you the answers a little quicker than if you hold off on discovery until the court rules on the motion to compel arbitration.
If you know in your heart of hearts that the matter is subject to arbitration, and your hope was to get a little discovery in before the court makes that determination, I don’t see that happening if opposing counsel is on the ball.
The declaration under penalty of perjury only takes effect when the document is filed with the court. So there is no perjury when you put your signature on the piece of paper, only if you still haven’t mailed the document when it’s already been filed.
I hear what you’re saying, but that’s a pretty fine distinction. You’re saying you can attest to anything in a declaration as long as you get it done before you file it. So I could send opposing counsel an ex parte application with a declaration saying I gave him telephonic notice, and when he calls to scream that I never gave him telephonic notice, I can just respond, “it’s OK, I haven’t filed it with the court yet.” I like that it would be a great way to drive opposing counsel crazy, but I think I’ll stick with the policy that when I sign something under penalty of perjury, it needs to be true when I sign it. After all, I’m attesting that “I declare under penalty of perjury that the foregoing is true and correct”, not “I declare under penalty of perjury that the foregoing is true and correct or will be by the time I file this with the court.”
Exactomundo. A signed proof of service attached to the document being served is, in reality, a statement of intent.
I loved this article. So true!
Hi Aaron
My PIA lawyer withdrew from my case and said he would send my file ,Medical reports SSN etc, He also said he would send my wife’s and indeed that arrived but mine never did so they sent out a replacement file. The replacement included a document from another of their clients . They had said in an E-mail to not contact them again by any means so I called the man whose paper I had, gave my name and he said he would call the lawyer.
I got another E-mail saying I must return the document and I responded that I would after I had legal advice. They got angry at this and said I could not share the document with anyone.
The way I see it is I have a strangers stuff someone else may have mine so in a way there is a connection.
Should I return it or not
Steve
You should return the document.
Seriously? What kind of odd reasoning is that? Return the document.
Thank you for the article.
Question related to your 7. Failing to amend well in advance of demurrer hearing.
I have recently faced interesting and unusual situation. I demur, and the opposing counsel serves Notice of Election to File Amended Complaint. I.e. he places the court on Notice as you recommend. The Amended is never filed. Subsequently, however the court (I suspect the Opposing dropped the Notice to the department without filing) took the demurrer off the calendar. Three days later neither the Notice, nor the Amended Complaint are still being filed. Is this example of jerk-like behavior where smart counsel fooled around the court and I? Or I did not get something? What should I do (what motion should I file if any) if the amended complaint never shows up through service and/or filing?
Assuming the best, I think opposing counsel intended to file an amended complaint but just failed to do so. The court should not take the demurrer off calendar until the amended complaint is filed. I would respond by calling the clerk and getting the demurrer back on calendar, and if that doesn’t work, just re-notice the hearing.
The Notice was one page accompanied with full version of 1AC and even proof of service. So it was easy to overlook that this is not the 1AC but only the Notice (of intent) as the judge did. I called a few days later the other side and left polite message. asking when they going to file and serve me with 1AC. I asked that attorney to call me back. He did not. But coincidentally the 1AC was filed the same noon. This is very experienced attorney. Hard to believe that he “forgot” filing 1AC, I guess this is one of the tricks he use to derail a demurrer without a lot of effort and without engaging into full size opposition. Smart!
Another development in this case showing a high probability of jerk-like counsel behavior. I filed demurrer. Professional service company serviced the package to other attorney office and personally yo him. Two days prior to hearing the attorney filed Objection saying that they did not receive moving papers. Even though my proof of service was filed with court, the judge noticed only the declaration “under perjury” of other party’s counsel. I inquired w service company and the runner remembered details – office was locked, he rang the bell, the counsel himself opened the door and accepted the service. Runner provided physical description of that counsel. I found picture of the counsel online and runner confirmed that this was him who personally accepted the service. Runner is willing to sign supplemental declaration. What kind of motion can I file, action should I take to bring to court attention that it is not I who does not know the process (like other party alleged in their Objection), but the other party’s counsel who is abusing the process. My demurrer is postponed for another month again.
So, I am in Placer county and going through a custody fight with my ex-wife. I have full legal and physical custody (with a signed order I might add). The kids were physically abused by mom and mom is an alcoholic to boot. Mom was ordered to complete 8 random alcohol tests and not drink while around the kids. Mom called and explained how she completed testing, has stopped drinking and wanted to spend time with the kids. Me being as trusting as I am, allowed it and now that a month of this has gone by she shows up to our court date represented by an attorney. Which keep in mind, she is months and months behind in support owed to me and cries to the judge EVERYTIME about how she’s unemployed and broke!
I am out of the country and appeared by telephone and had no clue she was now being represented by an attorney. Well today is Friday and during court yesterday the attorney said she will be filing an exparte hearing for emergency custody on Monday. Well, I’m out of the country until 1am Monday morning.
So, to finally get to my question, how is she legally going to serve me for Mondays exparte being that I do not have cell service here and will not be able to check phone messages until 1am Monday morning?
“Ex parte” is Latin for “from (by or for) one party”. A true ex parte hearing is one without the other side. It is not unheard of for hearings to go forward with no notice to the other side.
I don’t do family law, and the rules may be different, but when making an ex parte application without notice, the court considers all the factors including whether the other side could have been reasonably notified. You state in your summary that you appeared by phone on Friday, where opposing counsel said she would be bringing an ex parte motion on Monday. So the conversation will go something like this:
COURT: “Ms. Jones, I see from your papers that you could not locate Mr. Smith to give him notice of today’s hearing?”
OPPOSING COUNSEL: “Yes your Honor. I did leave him a voice mail, but he was apparently out of the country when we tried to give him notice. However, as you will recall, Mr. Smith attended Friday’s hearing telephonically, and I stated during that hearing that I would be moving ex parte on Monday, so he was aware. I don’t know why he elected not to appear today.”
The judge can then decide if that was sufficient notice.
Of course, none of this is legal advice.
Terrific Article, thank you.
re: peanut gallery, my experience is that family law is a wholly misandric experience, hard to imagine anyone going there and saying misogyny was a handicap, unless they had taken too many women’s studies courses.
As entertaining as it is informative! My firm does not execute served proofs of service, so we deal with number 3 on your list often.
I’ve received more response to this than any other article. Apparently a lot of attorneys make the listed mistakes.
You have a very entertaining writing style. I thoroughly enjoyed the article.
Which Firm ?
Great information and well presented. Very funny.
Thank you for this article. Could you tell me, please, if I can file third amended complaint without leave of court within 20 days after demurrer served?
Per Weil & Brown: “Plaintiffs can amend their complaint once ‘of course’ (without leave of court) before defendant’s answer or demurrer is filed.” It then goes on to explain that the amendment can be made up to the time of the hearing. You don’t explain your exact circumstance, but I would say the answer is no, since even though this might be the defendant’s first demurrer (you could have amended it a couple of times before he was ever served or appeared), you already had your one amendment.
Sometimes it is a good idea to get a complaint on file quickly (perhaps to preserve the statute of limitations), and then take some time to ascertain all the facts in order to file a more detailed amended complaint. This can all be done before the defendant is ever served. Under that circumstance, though, if the defendant responds with a demurrer to the amended complaint, the plaintiff would have to fight it because the “free” amendment has already been used.
Note, however, that the rule applies to each defendant. Say a plaintiff sues defendants A and B, who are served at different times. Defendant A just answers the complaint, but three weeks later defendant B appears by way of a demurrer. In that circumstance, plaintiff could still file an amended complaint without leave of court even though one defendant has already answered.
THANK YOU SO MUCH!
What is the outcome when a lawyer does not tell opposing counsel that he or she won’t be in court and all parties on opposing side are present.The judge said that the attorney had a case that took presidence over this current one. The wife who knew the childrens attorney was not coming and said nothing to the soon to be ex husband who came with witnesses to support him. The judge set a new date and basically did nothing..#dragging on 7 years Is this right or fair. Is there some recourse?
You state that the judge “said the attorney had a case that took precedence over this current one.” I think that’s your answer. Of course an attorney should notify the other side when they can’t attend a hearing, in order to avoid inconvenience, and the attorney can be sanctioned for failing to do so, but it sounds as though the judge considered the circumstances and decided the attorney’s excuse was sufficient.
I recently went through a 4-year long family law case (no children involved) – I was the petitioner. The opposing counsel, my counsel and myself were all women. Opposing counsel made a number of these types of errors you outlined in this article. I endured a great deal of misogynist behavior and attitude from the female opposing counsel (Greek immigrant). It was not lost on me, my female attorney, nor our male forensic accountant. Now that all is done, I would like to write a letter to this lady – not pertaining to any legal grounds but her treatment of women. I can either do that OR write/publish an article somewhere about this strange behavior. She tried to use her biases against women as a tactic in the case. Though I recognized what she was doing, she failed this psychological/cultural/socioeconomic assault on my confidence, and failed when she presented obviously biased arguments in court. Still, I think of all the women who would be bullied by her – it’s not right.
You did not ask a question, but I’ll assume you are asking whether you should write a letter, or perhaps my thoughts on the attorney’s behavior.
You specifically state that “she tried to use her biases against women as a tactic in the case.” She was OPPOSING counsel, heavy on the OPPOSING. I think we should all be civil, even in litigation (it is, after all, called “civil litigation”), but she was your husband’s advocate, and the system requires her to be a zealous advocate. It is fair and appropriate for her to attempt to “bully” you so long as she stays within the rules, and it is your attorney’s job to act as your shield. Apparently the system worked, because you state that her bullying tactics and biased arguments failed.
Many attorneys take an angry letter from the opposing party as a badge of honor, so I don’t think that will accomplish much, plus she should not have any communication with you even if the action is over, but If you want to make other women aware of this attorney’s tactics, then by all means post a comment on Yelp or some attorney review site. Just be absolutely sure you can back up whatever you say so you don’t buy yourself a defamation action.
Thank you. I will find another way to make other women aware of her (and perhaps others’) tactics.
In other interesting news, this particular attorney sent me an invitation to connect on LinkedIn the day after I posted here. I ignored the request, but found the invite highly inappropriate. I entertained the idea that she might have made a mistake and sent the invite out to her entire contact list; however, neither my ex nor my attorney received the invite. Just me. I checked.
As an attorney, I’ve had that happen to me as well (where an opposing party has sent me a LinkedIn request). I assume that they simply e-mailed everyone on their contact list and ignore it.
You just have!
Great article, loved your tips and insight!
I filed a complaint breach of a lease, which was for unpaid rent only. I later decided to amend and add a breach for damages caused by defendant while in possession. First cause was based restated, second cause (not count) was also for breach, but for the amount in money for the damages. The second cause repled almost the entire first case, but used “property damage” as the breach, instead of failing to pay rent. Is that a proper way to plead
William,
Your question is a little too broad to answer meaningfully. A complaint tells a story. Story 1 in your case is the failure to pay the rent. Story 2 is the damage the tenant caused to the property. Both will include the same facts about when he rented the property, but the first will tell the tale of how this scofflaw failed to pay the rent, while the second will tell the tale of this awful vandal who kicked holes in the walls. I don’t see how you could tell those two stories without different allegations. You make it sound as though you changed “failed to pay rent” to “property damage” and that would likely not be adequate.
I did plead two separate causes of action.both for breach of contract bases on unpaid rent, the other breach is for damages caused by the tenant while in possession. Would that be a proper way to plead
Loved this article informative and entertaining.