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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3142
Experience:  Civil litigation attorney for individuals and businesses.
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Hi William, We just chatted about my collections case in

Customer Question

Hi William,

We just chatted about my collections case in LA County. Can you give me a general idea of the process of filing a motion? The clerk is no help.

So far, I submitted a motion for change of venue by fax to the clerk. It was rejected because I had to set a motion date/time. I asked if I'm supposed to refile the motion. She said I need to file proof of service. I can do that, but does that mean my original motion was accepted once I file the POS?
Submitted: 11 months ago.
Category: Legal
Expert:  William B. Esq. replied 11 months ago.

William B. Esq. :

Without knowing whether or not the motion is on the court docket (check the Court's online register of actions to see if your motion is filed there), I would recommend that you file a new motion, get a court date, and include a proof of service as a package. It is less likely to be overlooked, and the documents you file will be included in the motion packet sent to the Court (judges very rarely review the entire docket, and filing all of the moving papers in one packet will ensure that you get your motion heard properly).

William B. Esq. :

You will need to get a court date from the clerk and then file and serve the following documents:

Customer:

I set a court date for the motion.

Customer:

What happened to the motion I faxed that was rejected?

William B. Esq. :

(1) Notice of Motion - this is the document that says when the hearing is, and what you are asking for (change of venue)


(2) Motion - this is a very short document that says what the grounds for your motion are


(3) Points and authorities in support of your motion - this is your lengthier motion paper, all of the legal arguments and facts must be laid out here


(4) A declaration by you in support of the motion

Customer:

I did 2-4 in one doc

Customer:

I will do #1. Should I resend all 1-4 again just to make sure?

William B. Esq. :

If the motion was rejected, you will simply need to file your new moving papers over again. The Court is unlikely to grant a default in this matter following your attempt to file the motion, and the time in which you have to deal with it is sufficient (I doubt that default is going to be an issue, particularly if you can refile promptly).

Customer:

ok. I will refile with the Notice. Is there a form for the Notice of Motion?

William B. Esq. :

While it is likely not necessary to refile, I would recommend it for two reasons, (1) you will ensure full consideration by the Court; and (2) there will be no question about the service of your motion and all supporting documents.

William B. Esq. :

Let me see if I can find a sample (it is fairly straightforward: It says you will appear on xyz date and time in Dept. 123, and what the motion is. Please give me a moment.

Customer:

sure thanks

Customer:

http://www.courts.ca.gov/documents/fl301.pdf

Customer:

will that work?

William B. Esq. :

Here is a sample (the Sacramento Law Library is actually fairly helpful: chrome-extension://bpmcpldpdmajfigpchkicefoigmkfalc/views/app.html

William B. Esq. :

The fl301 is a Family Law document.

Customer:

that link doesn't work.

William B. Esq. :

Let me try again.

William B. Esq. :

If that does not work, try a Google Search (or other browser) for "Sample Motion to Strike Sacramento Law Library"


I may be having a browser error on my side, I apologize.

Customer:

Oh this is a motion to strike?

Customer:

or is that just a term for any motion?

William B. Esq. :

Use that as a template for your motion - the required parts are when and where the hearing is located, and what the basis for the motion is. (It is used to put the other party on notice).

Customer:

ok

Customer:

are you talking about the Word Doc on pleading paper that says NOTICE OF MOTION TO TERMINATE... I can just change that one?

William B. Esq. :

Yes, just use that format (make sure you insert the proper court etc.) and you can use that to build your own Notice of Motion.

Customer:

Just put "NOTICE OF MOTION" only right?

Customer:

or maybe "NOTICE OF MOTION FOR CHANGE OF VENUE"

William B. Esq. :

Use the second one.

Customer:

cool. thanks again.

William B. Esq., Attorney
Category: Legal
Satisfied Customers: 3142
Experience: Civil litigation attorney for individuals and businesses.
William B. Esq. and 12 other Legal Specialists are ready to help you
Customer: replied 8 months ago.

Hi William. We worked together on the Motion for Change of Venue. I got a court date of Jan 28th. Before that date, I would like to reach out to the plaintiff's lawyer and discuss a settlement. Should I call, email or fax? I would prefer to get it in writing I guess. Should I propose an amount and have them consider it or do I ask them to propose an amount? I'm figuring they will just reply with the amount in the pleading but at least it starts the process?



Thanks,


Aaron

Expert:  William B. Esq. replied 8 months ago.
Depending on your comfort level, it is usually common to initiate a settlement discussion by telephone as you can gauge the other side's interest in settlement. You can however quickly give away too much or too much information if you are not used to this type of negotiation.

However, the attorney does not usually have settlement authority here, a written settlement offer must be conveyed to the client. So, if you send a letter or email outlining your settlement offer (dollar amount, payment date, or payment plan - whatever it is you propose), it must be passed on to the client for consideration. You are bound by what you offer in this letter or email once you send it (unless you send a rescision before they accept it), so be ready to pay up when they accept.

I cannot advise you as to what is the best practice or most successful way to go about these types of negotiations (there is no one way, and I cannot give this kind of instruction), but the above are the two major benefits and drawbacks of these forms of overtures.

The Plaintiff is not likely to give you a lower offer - you can ask, but it is common in the industry to call this "bidding against yourself" and most attorneys refuse to have their clients do so.

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