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Brandon M.
Brandon M., Counselor at Law
Category: Legal
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Experience:  Attorney experienced in numerous areas of law.
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when filing a motion to extend time to answer a complaint,

Resolved Question:

when filing a motion to extend time to answer a complaint, what section of california procedures or what rule is invoked to authorize the motion? all of the motions I've reviewed are not from california and invoke either a federal rule or other state rule. I'm looking only for...Pursurant to Rule/Section... defendent.

here's my exact verbiage:

Pursuant to Rule _______ of the California _________________________, Defendant respectfully XXXXX XXXXX an extension in which to file an Answer, and in support thereof state as follows:

Submitted: 2 years ago.
Category: Legal
Expert:  Brandon M. replied 2 years ago.

B. T. Meyer, Counselor at :

Hello there.

Customer:

hi

B. T. Meyer, Counselor at :

Hi.

B. T. Meyer, Counselor at :

This relates to a general civil case, correct?

Customer:

yes.

B. T. Meyer, Counselor at :

I am assuming that you are looking at this from a defendant's perspective. What is your reason for wanting an extension?

B. T. Meyer, Counselor at :

Or, more accurately, what is the defendant's reason for wanting an extension?

Customer:

yes, and to file an answer.

Customer:

2. Defendant is a Doctoral Candidate at UCLA and was required to write and defend his dissertation proposal on or before March 15, 2012 or lose eligibility for the Fellowship that funds his research, and additionally has been unable to attach counsel or to prepare an Answer to Plaintiff’s complaint. Defendant respectfully XXXXX XXXXX short extension in which to file an Answer to the Complaint.

Customer:

1. The Complaint in this matter was served on Defendant on February 29, 2012, making the Answer due on March 29, 2012.

B. T. Meyer, Counselor at :

That doesn't allow for much time. You are right. Ok, let me explain this:

B. T. Meyer, Counselor at :

To start, there is generally no legal basis for extending the time to answer a complaint in California just because the defendant wants more time. The defendant has 30 days, and the plaintiff has a right to have an answer within 30 days. The exception is with a complex or coordinated case; a motion for an extension in the case of a complex or coordinated case may be requested and granted pursuant to California Rule of Court 3.503.

B. T. Meyer, Counselor at :

There are plenty of things that can trigger an extension, but simply wanting more time is not permissible.

B. T. Meyer, Counselor at :

But even that is not the "real" answer.

Customer:

complex or coordinated case?

Customer:

is the real answer forthcoming?

B. T. Meyer, Counselor at :

Coordinated means that there are multiple cases that are separate but coinciding with each other. Complex is... well... complex. It is defined in California Code of Civil Procedure sec. 403-04.

Customer:

are you also suggesting that I submit at least a partial answer also?

B. T. Meyer, Counselor at :

One question at a time, before we get jumbled. Yes, I am getting to the real answer.

B. T. Meyer, Counselor at :

Once the time to file an answer has lapsed without filing, the plaintiff may file for a default judgment. However, the courts have said that the plaintiff must communicate to the defendant their specific intent to file for a default judgment before actually filing, and the warning generally must be at least 15 days before filing. If the plaintiff files for default without giving the warning, the defendant can generally have the default judgment vacated due to the lack of warning.

B. T. Meyer, Counselor at :

There are also other things that can be done to vacate a default judgment. Commonly, defendants will use Cal. Code Civ. Proc. sec. 473(b).

B. T. Meyer, Counselor at :

Still, the deadline should be treated as firm. Has the defendant spoken with the plaintiff about an extension?

Customer:

no.

B. T. Meyer, Counselor at :

Frankly, that usually resolves the issue. If the plaintiff has legal counsel, unless they have been completely alienated in the process, they will usually agree to an extended deadline. It gives the plaintiff a firm date after which they can file for default successfully and it gives the defendant an extension.

B. T. Meyer, Counselor at :

I have pretty much always permitted an extension when I am representing the plaintiff, and I have pretty much always received an extension when requested on behalf of a defendant.

B. T. Meyer, Counselor at :

Anyway, the point is, if the plaintiff is doing it right, they will generally give at least a 15 day warning before filing for default. In the meantime, the defendant can still file their answer. If the plaintiff is not doing it right, it gets very messy, and I can't guarantee that the plaintiff will do it right.

B. T. Meyer, Counselor at :

The cleanest way to deal with it is to try to contact the plaintiff to request an extension, which most are glad to do--for procedural reasons, not just the goodness of their hearts.

Customer:

this has been a pretty contentious set of circumstances. my direct supervisor at the university wherein I teach asked me to help his brother in law mount an online business. I said no, that I was too busy. he reapproached repeatedly and finally I relented because benefits (monetary) were to accrue to our department for studio rental. I directed a series of short videos but my supervisor maintained control of camera, operator, lighting, all elements that the client used to withhold payment for the work. I have not been paid for a invoice sent last july, and I have not been paid for a second invoice after the client CHANGED THE NAME of the business after production was complete and then required us to edit video and reprogram motion graphics (considerable work). my supervisor continued to say we would be paid and on more than one occasion said he would have a check for me, which he never did. I let it go, took the loss. now they're suing to acquire the underlying code of the motion graphics, which our signed contract specifically indicates is proprietary. the suit was scheduled to conflict with my diss defense. knowing that my supervisor has done things like this before, the dean of my college essentially gave me the semester off, with pay, and hired someone to teach my classes, I believe in an effort to prevent my suing the school for a work place action.

B. T. Meyer, Counselor at :

I appreciate that additional information, but my answer actually remains the same. Even under those circumstances, I would still request them to stipulate to an extension; the worst they can say is "no".

B. T. Meyer, Counselor at :

And it would certainly be easier for all parties involved than fighting over whether a default should be vacated.

Customer:

okay. but if I file a motion for extension and it's granted, this is moot, correct? also, if I request a joint motion to extend and the plaintiff disagrees, can I not go directly to court to request one?

B. T. Meyer, Counselor at :

Well, it goes back to the original question about the legal basis for an extension. There is no legal basis for an extension based solely on wanting one. What is your legal theory as to why the court would have the authority to grant an extension if requested?

B. T. Meyer, Counselor at :

In other words, you have 30 days, just like everyone else--what is special about this case that the plantiff should be denied their right to an answer within 30 days?

Customer:

that I have been otherwise engaged and have not been able to attach counsel to defend against what is an attempt to steal underlying code protected by the mutual contract.

Customer:

I'm also petitioning the court for reduced fees. I have nothing and no money. a judgment would necessitate my quitting my job of seven years and seeking work outside of the U.S. I have $100K in student loans, no real property, no stocks, bonds, etc. I may be naive but I can't believe that a judge will grant a judgment when he knows that a third party did the work and holds the underlying code and hasn't been paid because I haven't been paid and is not going to give up that code without payment, even if I'm compelled. they're unnamed, out of the state, and not bound by the contract. personally, I think it's a travesty but that's just my rational mind taking over.

B. T. Meyer, Counselor at :

Going back to the questions "if I file a motion for extension and it's granted, this is moot, correct? also, if I request a joint motion to extend and the plaintiff disagrees, can I not go directly to court to request one?":

B. T. Meyer, Counselor at :

1. If a motion for extension is granted, it is moot.

2. It wouldn't be a "joint motion", but it would be a stipulation. If the plaintiff refuses to stipulate to an extension, it would not limit the defendant's rights to motion the court independently.

B. T. Meyer, Counselor at :

In otherwords, (1) yes, and (2) yes.

Customer:

ok. well, I guess I call plaintiff's attorney and request a stipulation to an extension and if that doesn't work I'll file the request at court in the a.m.

Customer:

thank you for your help.

B. T. Meyer, Counselor at :

Certainly. Did you have any other questions?

Customer:

well, I'm trying to be mindful of your time but yes let me move forward to my proposed answer:

Customer:

I intend to allege that I was compelled to do this work due to my direct supervisor's repeated directive. while this was supposed to be a contract between myself and the client, my supervisor, as I said, at all times controlled "picture", lighting, operator and lighting techs. so in effect I was not wholly responsible for the work and in fact was subordinate to my supervisor, who incidentally knows nothing about motion graphics, which is the same for his brother in law and his nephew, the three people I was taken directions from. on the other hand, I've been on the internet since it was publicly available and even before. I'm credited with producing the first multi-modal online journalism course (1997) and three years later the first episodic full motion online documentary. I have full page business section news stories about me and my work and I'm considered something of an expert. I did not solicit this work, was not taking on new work, indicated I wasn't available to do the work, but fearing retaliation in my academic domain if I didn't do the work, I took on the project since it would benefit our digital media program. the latter didn't materialize. the client approved the completed work in august and then started withholding payment to get source files which as I said are clearly delineated in the contract as not part or parcel to the work for hire.

B. T. Meyer, Counselor at :

Well, I am not sure how much I can help with that without examining the complaint, but I will do what I can within the confines of this forum. How can I help?

Customer:

well to be honest I was prepared to go this far this afternoon. I was more focused on the potentiality for the motion to extend. it might serve us both if I return to the complaint and identify specific questions and come back at a later time. one question I guess would be where I might be able to review answers for format and content.

B. T. Meyer, Counselor at :

You mean sample answers?

Customer:

yes

B. T. Meyer, Counselor at :

Your county law library has tons of great resources, including samples and specific language.

Customer:

I also have access to ucla law library and was going to go there. just one step at a time. I thought I'd ask since you asked if anything else was on my mind.

B. T. Meyer, Counselor at :

If we are moving on to a new topic, you may want to sign up for a website subscription for unlimited questions. Although I can field your specific questions now, I can't guarantee accessibility later.

B. T. Meyer, Counselor at :

The UCLA law library would be great.

B. T. Meyer, Counselor at :

Ask the law librarian for a "pre-trial practice guide".

Customer:

I did sign up for unlimited questions after this posing this one.

B. T. Meyer, Counselor at :

CEB and Reuters make user-friendly guides.

Customer:

perfect. thank you. I think I've got enough to go on right now and once I've digested and filed the extension I'll be back for other questions.

B. T. Meyer, Counselor at :

Certainly, and please keep in mind that the experts are not credited for unaccepted answers; even where I cannot solve every problem in a case, my hope is that you can at least feel confident in your knowledge of your rights so you can get the best legal outcome under the circumstances, whatever that outcome may be. Please remember to click accept once you are finished. Thank you.

Customer:

I definitely will. you definitely provided me peace of mind and a direction in which to move, come what may. that's all I can ask. thanks again, B.T. and I'll let you get on with your day.

Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12237
Experience: Attorney experienced in numerous areas of law.
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Brandon M.
Brandon M.
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Attorney experienced in numerous areas of law.