Don’t be that Attorney – Ten Ways to Make Yourself Look Foolish

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.

[7-3-2014 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.

[2-15-2013 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.

[1-14-2014 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?”

[1-1-2016 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.

[7-1-2014 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. Service of a complaint by mail is insufficient, but once the defendant appears in the action, then you can serve 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.

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.

TDon't be a jerkhis 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.

[1-1-2016 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 motion, 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.

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.

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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117 thoughts on “Don’t be that Attorney – Ten Ways to Make Yourself Look Foolish

    • 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

  1. 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.

  2. 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.

      • 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.

  3. Pingback: Recommendation – Don’t Be that Attorney | Wit of Mandate

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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


  9. 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.

  10. 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.

  11. 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.

  12. 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?)

  13. 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.

  14. 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.

  15. 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.

          • 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.

  16. 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?

  17. 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!

  18. 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.

  19. 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.

  20. 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.

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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.

  26. 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.

  27. 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.

  28. 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.

  29. 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?

  30. 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.

  31. 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.

  32. I greatly appreciate the information in this article. I am acting Pro Se in a civil suit and have scoured the information available to paralegals and lawyers (online and law library e-resources) regarding communication between counsel to determine how to conduct myself in a professional manner.
    There are many opinions from a variety of sources, many of them laymen. Most propose attacking and behaving aggressively, as a professional, albeit in a different field, those tactics seem inappropriate. Having a convincing argument in court has little to do with how rude you are to opposing counsel.
    I also wanted to make sure my actions don’t harm my case by annoying the judge or disrespecting the court, not to mention I’d rather not look like a fool. Your examples demonstrate exactly the behaviors I want to avoid! Thank you.

  33. Speaking of protective orders…after I filed a motion to compel the opposing side failed to get it to my when required and gave two different excuses on different dates. Now they finally have the docs ready but are holding them until I sign an 8 page protective order they sent me. I thought protective orders came in the form of motions to the court. I am in California. Is this a proper way of doing this or is it just one more attempt to take advantage of a pro per?

  34. If you have an amended complaint filed and served on 19 September, Interrogatories and request for production filed on 28 September and have a party who is completely mute on the entire case and can’t go for default (because the other side legal without a court order doesn’t have to reply to the complaint because it is amended). What would you do in this case? Also this is no small time defendant they can afford a great attorney

    • I’m not sure I understand the question. The statement “the entire case and can’t go for default (because the other side legal without a court order doesn’t have to reply to the complaint because it is amended)” is a non-sequitur. If a plaintiff serves a complaint on defendant, and then before defendant answers serves an amended complaint on defendant, then the defendant is required to answer the amended complaint. No court order is required. On October 20 the plaintiff could seek a default, and that’s what I would do. Did I miss something?

  35. I have a lovely and well mannered opposing attorney in a divorce case (I represent myself). I did not receive a copy of the last court order he offered in court to write up for signature. I asked if he would, as a courtesy, send me a copy via email. He refused to do so and stated he’s no longer attorney of his client. I pointed out that I had not received notice of that, and as he was her attorney when the order was made, the it is his responsibility to serve me with a copy. Six emails later I am no further ahead. Can I file a OSC against the attorney for not sending a copy of the order, or is there other action I could take? I would not be surprised to learn he never sent it to me.

    • You don’t provide your jurisdiction, and every state is different, but I can tell you what would likely occur in California.

      Although all case law and rules are to the contrary, some attorneys still claim that they no longer represent a client if the client is behind on their bill or there has been some other breakdown in the relationship. But it doesn’t work that way. So long as the attorney is the attorney of record, he is required to perform whatever services are mandated by the action. Thus, if the attorney is still the attorney of record, and was required to submit a proposed order, then he must do so and I suppose you could force his hand with an OSC. That would be a very unusual circumstance, however. I frequently end up preparing and filing orders and notices of rulings after opposing counsel was ordered to do so, simply because opposing counsel is taking too long. It is far simpler to prepare such a simple document and file it myself than to bring a motion to compel opposing counsel to do so. Indeed, if I did bring such a motion, I’m sure the court would ask why I didn’t just file it myself.

      I have to note that your statement “I pointed out that I had not received notice of that, and as he was her attorney when the order was made, the it is his responsibility to serve me with a copy.” is inaccurate. Let’s assume that the attorney really does not represent the client. On Monday he represented to the court that he would file a proposed order, and on Tuesday he substituted out of the case. Even though he was the attorney when the promise to the court was made, since he is not longer the attorney, he has no ability to do so.

  36. I’m plaintiff (unrepresented) in a California civil action. I received a demurrer accompanied with discovery requests. The proofs of service for all are signed, however my question goes to this:

    The POS states the following, in relevant part:

    “On [date] I served the within [doc name] on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

    “I am readily familiar with the firm’s practice of collecting and processing correspondence for mailing. Under the practice, it would be deposited with the US Postal Service on that same day with postage thereon fully prepaid at [location] in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.”

    It then provides the following:

    “[ ] I faxed such document t the fax number listed above and such fax was complete without any transmission errors.

    “[ ] (BY OVERNIGHT MAIL) I sent the envelope containing the above-referenced documents by priority mail reasonably calculated to ensure delivery to the persons or entities named above not later than the close of the next business day after the time the documents are filed. (C.C.P. s1005(c)).”

    followed by the penalty of perjury statement.

    Each paper, including the demurrer has the exact same language and the postage is not cancelled.

    I don’t believe service is proper. I am aware that there is a procedure stated under Carlton v. Quint (2000) 77 Cal. App. 4th 690, 697-698 to handle improper service, but I believe this is well beyond “defect” or “insufficiency” of service.

    So, would I be taking a risk in not responding to the discovery requests for failure to serve? As well as moving to strike the demurrer on the ground that it wasn’t filed in conformity in that it was not served in accordance with the CRC, and CCP? Or will the court see it as harmless error?

    • I use this example often with callers, and I apologize if I’ve used it here already.

      Some people think that a dollar bill is not legal tender because there is an eye floating above the pyramid on the back. I don’t recall the exact theory, but I think it has something to do with that being a Masonic symbol. Yet, a dollar bill will still buy a drink at McDonald’s (when they’re running the $1 drink deal).

      Some people view the law that way, and think it is a contest of rules. On occasion it is. For example, the deadline to file an appeal is jurisdictional, and that is a situation where you can defeat the appeal by showing it was filed one day late. But in most regards, the law is just common sense. I get calls all the time from people wanting to move to quash service of a complaint on the grounds that the process server didn’t state the nature of the papers or left the papers on the stoop when the defendant refused to open the door. But as I explain, that means you will end up in front of a judge, arguing, “Your Honor, I was never properly served with the papers . . . I have . . . right here in my hand.”

      Most judges will only be concerned about whether you were prejudiced in some way. If you don’t respond to the discovery, the other side will bring a motion to compel, and then you will have to spend time opposing that motion. You will attach a declaration explaining that you were not properly served, because the POS was signed, or undated, or whatever your argument is. But in that same declaration, you will presumably have to state when you received the papers as part of your statement of facts. Upon realizing that you failed to answer discover that you received because you felt the POS was not proper, the judge will likely look at you and say “are you kidding me?” and then sanction you a thousand bucks.

      I always want the judge to think of me as the reasonable attorney in the case (which is not much of a challenge because I can almost always rely on the other attorney to be unreasonable). Most judges have a staggering law and motion calendar. For the remainder of this action, do you want to be remembered as the party who is so unreasonable that you brought a motion to strike a demurrer that you timely received?

      The better way to handle it is to devote the opening argument of your opposition to the demurrer to explaining why service was improper. In that way, you put the court on notice that the other side is not following the rules, and occasionally you’ll get a strict judge who will agree with your technicality and will overrule the demurrer on that basis.

  37. OMG, I laughed so hard reading your article! I’m a paralegal and a former court clerk, and the unsigned proof of service issue becomes soooo blown out of proportion sometimes that your article had me cheering and clapping at your clever writing! Thanks for sharing it and all the other jewels.

    P.S. I might add on the parties communicating, communication between an attorney and represented party is governed by the Professional Rules of Conduct (the rule # escapes me right now) but I believe the Professional Rules of conduct also specifically address that it is not intended to limit contact in any way between the parties in the “discussion” section of the rule.

    Thanks again!

  38. Thank you for your article. I desperately need to know if it is legal or ethical for an attorney to forewarn their client via email to avoid being served for an upcoming contempt hearing. As an officer of the court I believed this behavior was frowned upon. I need a basic answer. I’d like to go directly to the judge in this case.

    • I know an attorney who was asked by his client how he could avoid collection efforts, after he lost his case. The attorney simply stated that if the plaintiff was aware of any bank accounts where the client kept his money, then the client should probably transfer his money out of those accounts. When the client was later subjected to a judgment debtors exam and was asked why he had emptied his bank accounts, he responded, “that’s what my attorney told me to do.” The attorney was then named in the fraudulent transfer action.

      The point of this story is that there can be a fine distinction between informing a client about the realities of litigation, and assisting in frustrating the system. Sometimes parties and their attorney get caught up in the “game” of litigation and lose sight of its purpose. The advice by the attorney was determined not to be a conspiracy to fraudulently transfer, because money is traceable. At best, transferring the money from one account to the other would simply slow down the collection. If the client answered truthfully at his judgment debtors exam, then when asked what happened to all the money he had in his Union Bank account, the answer would be that he put it all into a Wells Fargo account. The money could then be seized there.

      Your situation presents the same sort of ethical considerations. There is no requirement that a party submit to service of process, and there is no prohibition against making the opposition jump through any available hoops. Attorneys are frequently asked to accept service on behalf of their clients, and are free to refuse, even though that makes the other side go to the trouble of tracking down and serving the defendant. If the defendant is difficult to locate, the attorney’s refusal to accept service could slow down the process by months, while plaintiff’s counsel serves by publication. Would you contend that is unethical, since it slows down service? The fine distinction in your case is whether the attorney simply told his client that he was about to be served for a contempt hearing, which would be completely appropriate, or told him to head to Jamaica to avoid service, which could be viewed as interfering with the process. I have no definitive answer as to whether the facts you describe would be frowned upon, but the attorney is required to zealously represent the interests of his client, and it might be that the attorney determined that delaying service provided some advantage (such as affording more time to address the alleged contempt). I suspect the judge will take no action if presented with the email.

  39. I enjoyed your article.. Im representing myself in a Partitioning compliant,and just got a letter demanding I sign this form and return to his office in 3 days…He had failed to inform me of a hearing on the compliant an amended complaint.. and ordered that partition of the property be made by the appointed commissioners and Oerdered the Writ to the Sheriff.. The judge had signed it.. When we had the next hearing the Lawyer talked to the judge and walked out and gave me an offer to hand over the deed… I had him return to the judge and do the hearing and put this on the record… once in the hearing the judge found that I wasnt notified and told the lawyer to make sure he notifies me.. The judge said sorry he missed it and asked if I had questions. I told him I on record rejected the Plaintifs offer to hand over the deed. I also asked about my ex half of property Tax and her half of mortgage payments due me $22000 and her lawyer stood up and yelled at me saying she filed bankruptcy and owes you nothing. After the hearing I went and pulled up her bankruptcy petition and found out she committed perjury by signing a $20000 2nd mortgage on 17 Apr 2015 and then filing bankruptcy on 20 Apr 2015 failed to put that on her petition and stated that the first mortgage was not recorded because her father is the mortgage holder. She lied both Mortgages are recorded and on file.She also filed to list me as coowner and stated that she intended to surrender property because it was in poor condition.. On the petition she even listed the property as having only a 2nd Mortgage from 2009 and listed a $20000 nonsecured personal loan from her father in 2009, the trust did have an issue with the non reported mortgage but it was discharged in Sept 2015 and the property was Abandened… How would I report this to the judge for the partitioning case… I also plan to contact the Trustee for the Bankruptcy, I have all docs to prove everything also because her father is the Mortgage holder should I report him to the Tax fraud dept Im sure he claimed the losses on his return… BTW He is the one that gave me the offer to hand the deed to him…. What do you think??

    • I really can’t respond to such a detailed question without the documentation and a better understanding of the facts, especially since it appears from your IP address that you may be writing from Kansas, and I am not familiar with Kansas law. But as an academic exercise I can tell you what I would do if this case was in California. If all the deeds and mortgages have an impact on the partition action, then I would bring an appropriate motion that puts that information in front of the court, or use that information at trial. If all the deeds and mortgages have an impact on a debt she owed to you but purportedly discharged in bankruptcy, then you should retain bankruptcy counsel to seek to negate the discharge. Sorry I can’t answer in greater detail.

      • Hi thanks for replying, Im actually from Ohio. Im on Hughesnet sat for internet.. What motion would I use to suspend the Partition action, if I was going to submit it to the Bankruptcy Trustee for action? The house has 2 mortgages appraised by the court for $60000.00, She is trying to force sale because it cant be partitioned. I was thinking Motion to continue and motion for Abate….

        • Again, as an academic exercise, in California the two actions would be unrelated, unless your bankruptcy somehow reopens the bankruptcy, which might have stay consequences. I would have no knowledge as to what motions are available in Ohio.

  40. As a Plaintiff, I just prevailed in a Motion to Dismiss my complaint that consumed about 6 months of calendar. Now, we are one week out from the Discovery deadline and the Defendants are asking to extend discovery 4 or 5 months. They have done nothing to propound any discovery, have provided no documents in initial disclosures. What if I say No!

    • It will come down to the nature and theories behind the Motion to Dismiss. For example, if the Motion to Dismiss was based on lack of jurisdiction, then it would have been rather inconsistent for the defense to be propounding discovery in a case over which they were claiming that the court had no jurisdiction (unless the discovery was limited to jurisdictional issues). Under that scenario, the court will likely extend the discovery deadline. Conversely, if the Motion to Dismiss was based on a failure to state a claim, then the judge will likely be far less forgiving of the defense’s failure to conduct discovery while that was being decided.

      If it benefits your case to limit discovery, then I see no harm in fighting any discovery continuance. At a minimum, if you argue for zero months and the defense argues for 5 months, the judge will probably agree to something in the middle.

  41. I filed in court and I got a response for sanctions. Her lawyer gave her the paper after he wrote it and she just handed it to me. There was no proof of service undersigned. Wondering if this means the motion will be voided. However my question is what if he files it and send me a second copy that’ has proof of service and I got two copies. I am carious how to go about it. A little nervous to file an objection.

    • Sorry I was slow to respond, but my site got hacked by Russians. I feel so important. In any event, I don’t understand your question. “I filed in court and I got a response for sanctions.” You filed a complaint and were sanctioned? You were seeking sanctions with a motion and the other side responded? I just don’t know what you mean. But if your concern is that he handed you a court document with no proof of service or with an unsigned proof of service, that is really not an issue. As I explain in the article, the POS sets forth how service was effectuated, past tense. If an attorney goes to court intending to serve a document on the other side by handing it to them, obviously there can be no POS attached, because it hasn’t occurred yet. (The attorney could attach an UNSIGNED!! POS in anticipation of personally serving, but there is no such requirement.) The attorney is then free to file the document with a signed POS with the court. He should send you another copy with the POS, but it really doesn’t matter since you received the document. The motion won’t be “voided” as such unless he fails to file a POS with the court. If the judge does not see a POS attached to the motion, he or she might refuse to consider the motion.

  42. I am truly overjoyed that a crusader like you exists. Your usage of words breaking the topic down to bear bones has helped me beyond defend the one I
    Love. My fiancé’s ex had almost financially and psychologically devastated her, I kept reading and picking out the most useful info to teach myself how to defend her. I sold everything and just immersed myself watching the attention to detail you described, and would research the civil codes in my home state so much so that even his lawyer was now backing off. Finally, the divorce decree was signed and my fiancé hoped for the best; but I knew better. A full year has passed and I just entered a motion and order to show cause for her. I thank you greatly for all your passion towards the legal field, you have shown me enough to protect her from this bully and his lawyer. My question is: How do I reopen the divorce Decree to prove to the Judge that his lawyer intentionally reworded, and left out the account number premeditated? If it was up to them we’d be homeless and have nothing. The judge ordered he pay her back money and sign the quitclaim deed within 3 months of the decree as of March 2016. We honored our parts cause I made sure, but after she had to obtain a PO he only made life worse for us financially. The lawyer felt no need to compel his client to comply, we lost 8 buyers on the house; so I cashed out all my savings and my fiancé cashed out her 401k. I don’t care about my money, but this was her retirement: in taxes alone it was 14k for her not to mention what he still owes her. Plz point me in the right direction as you have in the past…. Utah

    • Thank you for the kind words, and sorry that I’m so slow about checking for comments.

      Unfortunately, I don’t do family law and I don’t practice in Utah, so I can’t offer much direction. By way of generalities, however, I get this question often, and the answer is pretty simple. People write to say that the judgment prepared by opposing counsel does not match what the judge said.

      Sometimes that arises from a simple misunderstanding. Two people can hear the same words and come to completely different understandings about the meaning. Additionally, it is often the case that the judge does not specifically address all necessary issues, so the attorney prepares a judgment that fills in the blanks.

      Just making up an example to illustrate the point, let’s say that plaintiff sues defendant under five different theories, and defendant cross-complains under ten claims. Then the judge awards damages to plaintiff, and awards no damages to defendant, but makes no mention of some of the claims in the cross-complaint. When the attorney prepares the judgment, he or she will likely state that the court found in favor of plaintiff on all the cross-claims, as evidenced by the fact that defendant was not awarded any damages.

      In California, the defendant would usually have ten days to object to the proposed judgment, explaining to the court why the judgment is wrong. After that, a motion can be brought if the judgment fails to conform to the verdict.

      I have no idea what the procedure is in Utah or family court, but the obvious answer to the question, “what can I do when the judgment needs to be changed?” is “tell it to the judge.” In your case, it does not even appear that you are attempting to change the decree; only to make it more specific. A local attorney should know the proper procedure for getting clarification by the court.

  43. Pingback: To Sign or Not to Sign Your Proof of Service | Resolving Discovery Disputes

  44. Mr. Morris, I simply love your articles and have learn SO MUCH! Thank you. My limited civil was demurred and I amended and the demurer was moot. However, for reasons I am not sure of, the defendants attorney decided to demure again for the same reasons and this time sent an entire stack of paperwork to support his demure. My claim is a simple 4 page tort that clearly shows a valid claim. My understanding is that it need only show a valid claim? The amount I have asked for is based on what I believe I will get based on the evidence that I have. Does one need to prove down to the penny why one has asked for a certain amount in a limited civil? I believed that I could ask for the allowable amount of 25k. Please tell me your thoughts kind sir

    • I’m glad to hear you have found my articles helpful.

      >> My understanding is that it need only show a valid claim?

      Not as such. When defendant demurs, all allegations of the complaint are taken as true. To defeat the demurrer, you must show that you have properly STATED a claim. Whether the claim is “valid” will later be decided by the evidence.

      >>The amount I have asked for is based on what I believe I will get based on the evidence that I have. Does one need to prove down to the penny why one has asked for a certain amount in a limited civil?

      Are we still talking about the pleading stage? Again, when considering a demurrer, all your allegations are taken as true. So if you alleged you suffered $24,999 in damages, that would be taken as true, and you would not have to “prove” anything. Conversely, your allegations must set forth a valid basis for damages.

  45. My lawyer failed to file an amended complaint to add a retaliation charge before our deadline to amend the petition despite my numerous email reminders. Now the deadline to amend has passed, is there anything I can do. Please help.

    • I’m wondering if you are writing from outside California, because I can’t match your terminology with our procedures. “Retaliation charge” sounds like an employment matter, but that would not involve a “petition”, nor is there a deadline to amend. So I guess the only answer I can give is that unless the deadline is jurisdictional, there is always a means to ask for relief.

  46. I really valued this article. Can you give any advice as to our issue below??

    We filed a complaint against a business in federal district court. Summons and complaint never served because my wife’s mother became gravely ill & later died and threw a wrinkle into everything in our lives. But we knew we had 90 days to serve. We also desperately needed to amend our complaint before serving after uncovering other important information. But in a mere 3 weeks, after arriving back home, we found the defendant had learned of the complaint, taken it upon themselves to waive service and had filed a Motion to Dismiss. We realize we can ignore the motion and file an amended complaint within 21 days (per Rule 15), but we need more than the 21 days permitted under the Rule and we don’t want to use our “once as a matter of course” amendment just because the defendant “jumped the game” so to speak. We presume the court rules must permit a defendant to do this. Do we have any other recourse? By the way, what’s involved in this case does not warrant paying the heavy cost of a lawyer. We are worse off now than before my mother-in-law died w/o insurance. We really only have 13 days to amend since the dismissal arrived while we were away. Would appreciate any input.

    • This is not legal advice, since there are too many unknowns in your brief description, but generally speaking amendments are freely granted in Federal Court so long as there is no prejudice to other side. I can’t imagine why it would take you more than 21 days to amend, but if it were me I’d take the freebie and then amend again later if necessary.

  47. Love the article. I’m a pro se litigant going through a divorse against a VERY adversarial attorney representing my wife. She sounds like the character you use in your examples of “yelling, arms wailing about, ridiculous posture, etc.”, so its a bit humurous on top of informative.
    Just fyi, here in Las Vegas (Clark County), the court allows an additional 3 days instead of 5 for service by USPS. Maybe because the small size of our city I guess. Just wanted to share my small, insignificant bit of legal knowledge.

    Anyway. Thanks again for the great article.

    Take care.

    B. South

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