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Dear Customer, thank you for choosing Just Answer. I am sorry to learn of this lawsuit with your attorney. I will go through the different questions you have point by point below if you have any questions along the way please ask. I may answer one of your other questions first and return to your posted question next so that I will not lose my earlier typed answer. I have represented many clients in legal malpractice suits and believe I can assist you in this matter.
Question #1: the demurrer to your cross-complaint. You need to file an answer to this motion. What this document is is a responsive pleading which says that your cross-complaint fails to state a cause of action (you do not have enough information or facts to support your claims). You will need to go through the document carefully - read the arguments, and respond to them. For example, if the demurrer says that you did not state facts to support that the attorney was not responsive, you can say that your complaint did say that, and point to Paragraphs 5 - 7 which say "attorney jones was not able to take my phone calls on these dates" - all you have to do is allege these facts at this point.
As an alternative to answering this document, you may review the document and your cross-complaint and find that your cross-complaint is not sufficient, and ask the other side to allow you to file another one that is more detailed. If they do not agree, make a motion to the Court to allow you to file one, and argue all of those facts in your opposition to the demurrer.
But - do not ignore the demurrer, and file an opposition to it.
Thanks got it
Question #2: the declaration in support of the demurrer, this is part of the demurrer (it is a "package" all of the documents you received in relation to this motion are considered by the Court together). You will need to draft your own declaration in opposition.
Question #3: the Points and authorities (again part of the package)
Question #4: Request for judicial notice (again part of the package) to respond to the request for judicial notice, you will need to identify which documents are being requested, some documents are allowed to be judicially noticed, these include documents filed in court proceedings, documents filed in the County Recorder's Office, and similar documents, if you find documents that are not like this (letters, notes, etc.) you can object, but you will need to check the evidence code (look for "judicial notice", there are only a few document categories that are allowed).
do I need to answer to the points and authorities?
To oppose the demurrer you will need to file the following documents:
1: Points and authorities in opposition to Demurrer - your factual and legal argument as to why your complaint is sufficient to meet the legal standard (argue against the points raised in the points and authorities raised in the demurrer and any other law you can find supporting your case)
2: A declaration in support of your opposition to demurrer - a declaration by you stating facts that you declare to be true upon which your claim is based and upon which you believe your case will succeed.
3: An opposition to the request for judicial notice - only if it is necessary, if the other side is acting in good faith and asking for legitimate notice, and there is no basis to object you do not need to, but judicial notice is discretionary, so you can always ask that the court exercise its discretion to NOT take judicial notice.
Question #5: The Special Interrogatories - you must answer these questions under penalty of perjury (there is a form to sign the documents, check the "form interrogatories" for a sample). This is discovery practice and there are penalties for not answering (in fact you lose the right to claim privileges such as the attorney client privilege and other privileges if you do not answer within the given time). If you need more time, ask the other side, most attorneys give extensions of 15-30 days for good cause without much hesitation, but it is better practice to answer on time.
Question #6: Form interrogatories - again, answer the questions to the best of your ability.
With all questions, you are stuck with your answers. Answer to the best of your ability, only answer the question asked (do not volunteer explanations or attempt to give information beyond the question). You can condition your answer on the fact that you are conducting ongoing discovery and that your information is incomplete (it is not a privilege but it does let the other side know that you may have further information in the future, and they will likely send you further discovery in the future).
You should also send out your own discovery to support your defense and to build your own case.
To change your Court Date, first contact the other side, they should accommodate you. If they will not, you will need to make an "ex-parte" appearance in Court where you give the other side 24 hours notice of your appearance in Court, and appear in Court with a short written motion (1 page) asking that the Court move the hearing (bring a proposed order for the Court to sign). Usually the other side will work with you to move the motion to avoid this.
Again, if you need an extension on the answers to discovery, ask for it, but ask early so that the other side is more likely to accommodate you.
The other side does not have an obligation to extend the date for your responses, so if they are obstinate, you are likely stuck with the date. You can appear in Court and ask for an extension, but you will need a good reason (usually the discovery must be extremely burdensome), and there is no guarantee the Court will grant the motion. I would recommend asking the other side early.
Do I ask the other side for extension and change of court date by phone or formal letter and if they agreed how do I change the court date?
Usually you will want to ask by phone (much faster). But confirm any extension in writing.
Ok Thanks! for the points and Authorities for example it says Demurrer is Proper and gives the code section 430.30(a). Also it says Demurrer is Timely, The cross - Complaint is subject to a binding Arbitration agreement, The cross - complaint is uncertain and demurrer is proper, and Declaratory relief is improper. so how do I answer these and file an apposition? thanks again
Those are the legal arguments as to why the attorney believes they can win their demurrer. Unfortunately, I cannot make the legal arguments against these points for you, but the three points they are arguing are below:
#1 - Complaint is uncertain: this means your cross-complaint does not adequately allege acts of malpractice. You either need to argue that the cross-complaint does argue enough information to support this (the attorney did XYZ to breach his fiduciary duty, or argue that you may not have plead it, but the attorney did do XYZ and you need to be permitted to amend your cross-complaint.
My apologies (that was # XXXXX)
#1 - Binding Arbitration - your legal services agreement likely had an arbitration agreement in it. You will need to find authority (statute or case law) that permits you to argue this as a cross-complaint. It is not uncommon for clients to file a malpractice case as a cross-complaint after the attorney has sued for fees, but you will need to find a case that supports your claim.
#3 - Declaratory Relief is improper - usually declaratory relief is usually cumulative (unnecessary) in cases like this. You can usually find arguments based on the same cases argued by the other side to support why you are entitled to this relief.
how do I change the court date if the other side agreed to do it? do I need to go to the court or what is the process?
The other side should take care of changing the Court Date. If not, you will need to contact the Court Clerk, usually you will need the other side's signature (it is much easier for them to do it - they should).
How long before the court date do I need to file these documents? (the point of authorities and objections and answers and etc.)?
All of your papers must be served 9 court days prior to the hearing. The service must be by personal service or overnight delivery (in some form designed to ensure the other party receives it by close of business the day after service). CCP 1005
For the point and authorities #1 do you know any statute or case law? For #3: For the uncertain part it is saying that Cross complainant does not provide any dates that the alleged causes arose. can I say yes I did and it was all during the time that he represented me or I need to give specific dates and therefore I need to amend my cross complaint?
Here is an article regarding the validity of attorney client arbitration clauses. Your case will likely rest on the fact that your attorney sued first and thus waived any right to use this as a defense in his demurrer (this is a very strong opposition). http://www.lacba.org/showpage.cfm?pageid=3569
The more specific you can get the better. This is where your declaration is helpful. You can do a couple of things.
#1 - call the other side and ask if you can file an amended complaint that is more specific
#2 - make sure you allege all of these facts much more specifically in a detailed declaration (each point must be made in a separate paragraph in a declaration, it is tedious, but it is important).
#3 - make certain that in your opposition you ask for permission to file an amended complaint as "alternative relief" in the event the Court grants the demurrer. This will allow you to file an amended complaint alleging these additional facts (be prepared to file this document immediately as you will not have much time).
so I do an amended complaint AND in my opposition ask for permission to file an amended complaint as alternative relief? and by opposition you mean the opposition of points and authorities?
You do not have to draft your amended complaint right now (although if you are fortunate the other side will allow you to file it now). You can also make a motion to the Court to allow you to file an amended complaint now and if the Court grants your motion that will force the other party to respond to the new complaint making the demurrer moot. (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=469-475). But this will require you to file your own notice of motion, motion, points of authorities, declaration, an amended complaint in support, and get a new hearing date on an expedited basis (using the "ex parte" procedure above) so that it will be heard before the demurrer.
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i don't want to amend it but i want to ask for the court for permission to amend it as alternative relief in the event the court grants the demurrer. so to do that i need to just mention it in the opposition to the point of authorities? or in another opposition?
where do i include the argument? the opposition to Point and Authorities?
So i can just say i'm asking the court for alternative relief because the court has desecration to allow relief to amend? is this the wording?
and another paragraph asking the court to consider the right to leave to amend? is that the wording?
Also, He waited for the statute of limitation to pass for negligence and then he filed he law suit. is there a term that i can use for what he did?
if I request 30day extension on the Form Interrogatories and the other side only gives me 15 days can I go to court ex-parte and get longer extension? I'm going out of town and I wont have enough time to complete them.
What items I can object to in the Interrogatories? it is asking some questions that I don't want to answer right now because if I do I basically showing him all my cards.
If needed where do I get the ex parte application?
If I rate you excellent can I ask you questions again and rate you excellent again later? or if I let go of you I cant reach you anymore because you have been very helpful :)
Thank you for the kind rating, it is greatly appreciated. I wish you the best of luck with this matter. If you have further questions regarding this type of issue, or any other legal matter, please do not hesitate to use our service in the future. You may post a question for any of our experts in general, or to me directly by titling your question “To CalAttorney 2…”
Best regards, and thank you,
So he denied my request and i'm going ex parte. There is a form called Notice of Motion that I remember I would see in my family law ex-parte applications. do I need to fill such thing out here too or not. and if yes where can I find it.
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