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Default Law in California

Civil Litigation, Dental Malpractice, Internet, Medical Malpractice0 comments

calendar-1192688If you are served with a lawsuit, and, then you or your attorney fail to respond then the other side is likely to take a default against you. Once a default is entered a party is unable to make any kind of appearance to contest a case on the merits.  Thus, it is critically important to never let a default get taken against you.

If, for some reason, a default is entered against you, there is a motion that can sometimes set aside the default.  Specifically, Motions to set aside a judgement in California are brought under California code of Civil Procedure 473.  473 provides that a default may (not shall) be set aside if you can demonstrate that the default was taken because of: mistake, inadvertence, surprise, or excusable neglect.

Really what these boil down to is a legitimate reason why an answer was not filed:  your lawyer was hit by a train and was in the hospital.  The copy of the lawsuit that was served was illegible, so, you could not actually tell where you had to file your response.  Generally, “I forgot” is not a valid excuse.

Needless to say it is far, far, better to have to avoid trying to fill one of these kinds of requirements, than to have to spend the time money, and extra effort to file such a motion. Thus, the bottom line is that when you receive notice form a lawsuit.  Reach out to an attorney immediately.  Ask that attorney when you need to respond by, mark this date on your own calendar, and make sure a response is filed by the appropriate day.

The San Francisco based bay area attorneys of Jones & Devoy provide experienced attorneys who can help make sure that you avoid pitfalls before they happen, or, if such a disaster has already occurred, they will provide practical advice on how to approach the problem.

Terminating Parental Rights for an Adoption in California

Adoption, Civil Litigation, Family, San Francisco, San Francisco Family Law0 comments

In CalThe Handsome Familyifornia one can have at most two parents.  This means that, for most step-parent adoptions to go through, one of the biological parents’ parental rights must be terminated.  There are multiple ways to terminate parental rights depending on the exact circumstances (for example whether a father is a presumed or alleged father).

California Family Code Family Code Section 7820 provides that a prospective adoptive parent may file a petition to terminate parental rights so that the adoption may take place.  A petition to terminate parental rights under 7820 can occur for multiple reasons such as: child abandonment or mental disability.  When bringing a petition of this nature however it is important to know that California courts have determined that parents whose rights are to be terminated can be given a free lawyer.  So, such petitions must be filed with care.

The complexity of terminating parental rights puts extra emphasis on the importance of properly conceiving through artificial insemination in California.  California Family Code 7613 provides for a way for a child, who is conceived through artificial insemination, to have only one parent upon birth.  This substantially shortens and simplifies the process  for a step-parent adoptions, and so, should be considered whenever possible.

From Sonoma to San Jose the San Francisco based bay area attorneys of Jones & Devoy have experience in all aspects of adoption and family law including Petitions to terminate parental rights.  They can not only help you avoid possible pit falls, but, can provide sound advice on the best way to meet problems that are already present.

What is an Ex Parte Application?

Civil Litigation, Family, Medical Malpractice, San Francisco0 comments

ProtectionEx Parte literally translates to “with the interests of only one party.”  Legally, it is a situation where one party submits an application that requests orders from a judge on an extremely expedited basis (ie. a wait of only 25 hours instead of the usual weeks or months to get a ruling), and, sometimes that the other side not be given an opportunity to be heard on the issue.

As you can imagine, to most non-lawyers, such an application sounds pretty nice: it is fast and the other side either does not get to respond, or, has very little time to respond.  However, legally speaking, in California an Ex Parte application is much more difficult to get granted than your average motion.  This is because judges are extremely cautious about making orders when all of the facts are not before them, or, the opposing side does not have a chance to state their case.

Thus, Ex Parte orders are usually only granted in very extreme and emergency cases.  This includes cases where domestic violence or other imminent physical harm is present.  Or, cases where if immediate orders are not made then permanent and irreparable harm will be visited upon the party.   Permanent and irreparable harm means that money could not compensate someone for the loss later on down the road.  Moreover, each county in the San Francisco bay area (from Santa Clara to Alameda to Marin) has their own process on the intake when handling an Ex Parte Applications adding further difficulty to the process.

That said, Ex Parte applications may be filed in almost any kind of case, from Real Estate disputes, to medical malpractice, to family law and domestic violence actions.   The San Francisco based bay area lawyers of Jones & Devoy have experience in filing Ex Parte applications, and, can advise if one is right for your case.

Protecting Yourself after Domestic Violence

Civil Litigation, Domestic Violence, Family, San Francisco, San Francisco Family Law0 comments

ProtectionCalifornia law provides a number of ways to protect yourself from domestic violence.  The most well known method is is Domestic Violence Restraining Orders under California Family Code Section 6300.   However, its important to note that California provides a number of protections available to the victims of domestic violence beyond a stay away and non-contact orders that are designed not only to prohibited contact, but, to thwart individuals who might try and circumvent such court orders.

For example, California Election Code Sections 5166 and 5166.5 provides a series of procedures for making confidential one’s name and address with the county elections voter registrar.  The idea being that, one’s voting registration information (including address) is generally open to the public.  Specifically California Code Section 5166 provides that one has the ability to Petition a judge that such information be confidential.  If such an order is granted then only the California Secretary of State address is listed, and, the California Secretary of State forwards all election materials to the victim.

Given our approaching national election, it is relief to know that such laws in California are already in place to not only protect victims, but, to prevent abusers from gaining information that could be used to continue their miscreant behavior.

The attorneys at Jones & Devoy have experience in all manner of Domestic Violence matters and can assist not only in obtaining a TRO Restraining Order but can help with all other related aspects that crop up during a DV matter such as stalking, sexual assault, or other such behavior.

 

Does my case need a Receiver?

Business and Corporations, Civil Litigation, Family, Real Estate, San Francisco0 comments

san-francisco-courthouse-1549364A Receiver is  a person appointed by the court in a litigation case who is usually charged with taking control of a particular asset and then carrying out the court’s orders with regard to that asset.  For example, if the court orders a piece of real estate sold, and, the court is not confident that the party who owns the real estate will actually comply with the court order, then, a judge may empower a receiver to take control and sell the real property.

In California Receiver’s are considered a more extreme remedy from the court, and, are only used if the more traditional methods such as a levy or writ of execution are ineffective.  This means that it can sometimes be quiet challenging to get a judge to agree that a receiver is needed in a case.  Usually Receivers are only appointed in particular kinds of cases such as:

  1. Interim Corporate Management;
  2. Issues with Real Property such as Rents, Profits, and Sales;
  3.  Actualizing the terms of a judgment for Marital Dissolution;
  4. Undoing Fraudulent Transfers;

However, if a receiver is appointed then it will usually significantly reduce the amount of time and money spent in enforcing an order or judgment.  This is because a getting a receiver appointed basically substitutes in the receiver for the hostile party to the litigation, and so, greatly reduces the logistics in getting compliance with the court order or judgment.

The San Francisco based lawyers of Jones & Devoy have experience appointing receivers and can help you with you divorce, real property division, or corporate dispute to determine if this is a good option for you case. Our attorneys practice throughout the San Francisco Bay Area including: San Francisco, Oakland, Marin, San Mateo and San Jose.

 

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    Mr. Jones has an extensive background in both general litigation and family law as well as experience in various business and transactional matters…

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