You may have owned your business for decades or only for a year or two. Do you know what to do if a lawsuit arises? People in the know say that anyone who operates a small business may expect to face a lawsuit at least once in his or her career, and litigation can be more damaging to a small business than to a large company.
In earlier Blog articles we discussed the difficulty in causing the Court to throw out meritless lawsuits before trial. Procedurally, the deck is stacked against the Defense when it comes to forcing the dismissal of meritless lawsuits. A Plaintiff can survive Demurrer merely by alleging facts, even improbable "facts" of dubious veracity. Motions for Summary Judgment are easy to defeat and hard for the moving party to win as a matter of law because defeating the motion requires only a slight controversy concerning key facts. These Motions, particularly Summary Judgment motions, are expensive to bring. So the question becomes: what can best be done to force the earliest feasible and successful conclusion to a meritless, frivolous, or extremely weak lawsuit.
Buffington Law Firm's trust dispute attorneys have been asked to solve many problems relating to misbehaving problem successor-trustees of revocable or "living" trusts. One of the most common problems with trusts once the trustors die and a successor-trustee takes over is the way successor-trustees sometimes handle trust money. Since living trusts "avoid probate," they are ordinarily not under the supervision of the Superior Court. While avoiding probate is often touted as a benefit of living trusts, it can also lead to problems with successor-trustees and the way they handle the trust money and assets.
Buffington Law Firm's Trust and Elder Law litigation attorneys are sometimes faced with situations that deal with the issue as to whether a person has the mental capacity to make a contract or, alternatively, whether that person posesses testamentary capacity -- the ability to make a will or trust. To the layperson this may seem straightforward -- it may seem as though a person either has mental capacity or he or she does not. However, under the law, generally, the required mental capacity to make testamentary decisions is lower than the mental capacity required to make contracts.
Buffington Law Firm's California Trust Litigation attorneys have handled numerous cases involving so-called "Dynasty Trusts" as well as alternative forms of estate plans similar to these. A "Dynasty Trust" is an estate plan in which the trust does not simply distribute assets, wind up, and dissolve when the trustors pass away --the way wills usually work. Instead, the trust is set up to live on for an indefinite period after its creators die, retaining most assets of the estate in the trust, and usually paying mainly income only to the beneficiaries. This type of trust is designed to control the beneficiaries even after the trustor passes away. Perhaps the trustors believed that their children are irresponsible with money. Lawyers sometimes call this type of scheme "dead hand control" as the "dead hand of the past" is controlling the trust, its assets and income, and thereby the beneficiaries.
In Part 1 of this Blog article we discussed two common procedures for forcing pretrial dismissal of a lawsuit: the Demurrer and the Motion for Summary Judgment. We saw that the way the law operates plainly "stacks the deck" in favor of the Plaintiff with respect to early dismissal of a lawsuit. This is because of the law as enacted by the California legislature. These laws reflect a strong public policy of allowing plaintiffs, under most circumstances, to have their day in court.
Buffington Law Firm's civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: "Why can't I get this frivolous lawsuit thrown out before trial?" The question is, for many cases, understandable. It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts. When this happens the person being sued needs an attorney and, understandably, demands action. No one wants to be entangled in a lawsuit as a defendant one second longer than necessary.
The buying and selling of residential real estate goes on at a dizzying pace in California. If you are about to put your home on the market, what do you need to tell a prospective buyer?