Blogging Fusion Blog Directory the #1 blog directory and oldest directory online.

Talkov Law Real Estate & Bankruptcy

Home Talkov Law Real Estate & Bankruptcy

Talkov Law Real Estate & Bankruptcy

Rated: 2.29 / 5 | 1,422 listing views Talkov Law Real Estate & Bankruptcy Blogging Fusion Blog Directory

United States

 

General Audience

  • May 08, 2020 06:57:56 AM
SHARE THIS PAGE ON:

A Little About Us

Real estate, business and bankruptcy law in California. Call for a free consultation. 951-888-3300.

Listing Details





  • Website Tags:

Listing Statistics

Add ReviewMe Button

Review Talkov Law Real Estate & Bankruptcy at Blogging Fusion Blog Directory

Add SEO Score Button

My Blogging Fusion Score

Google Adsense™ Share Program

Alexa Web Ranking: 1,069,598

Alexa Ranking - Talkov Law Real Estate & Bankruptcy

Example Ad for Talkov Law Real Estate & Bankruptcy

This what your Talkov Law Real Estate & Bankruptcy Blog Ad will look like to visitors! Of course you will want to use keywords and ad targeting to get the most out of your ad campaign! So purchase an ad space today before there all gone!

https://www.bloggingfusion.com

.

notice: Total Ad Spaces Available: (2) ad spaces remaining of (2)

Advertise Here?

  • Blog specific ad placement
  • Customize the title link
  • Place a detailed description
  • It appears here within the content
  • Approved within 24 hours!
  • 100% Satisfaction
  • Or 3 months absolutely free;
  • No questions asked!

Subscribe to Talkov Law Real Estate & Bankruptcy

Talkov Law Selected as Top 100 Legal Blog

Top 100 Legal Blog Award for Talkov Law Feedspot recently announced its list of the Top 100 Legal Blogs, Websites & Influencers in 2021 for Lawyers and Law Students. Talkov Law secured its place as the #54 legal blog in the world alongside such notable blogs as Above the Law blog, SCOTUSBlog, and the ABA ... Read...

Top 100 Legal Blog Award for Talkov Law

Feedspot recently announced its list of the Top 100 Legal Blogs, Websites & Influencers in 2021 for Lawyers and Law Students. Talkov Law secured its place as the #54 legal blog in the world alongside such notable blogs as Above the Law blog, SCOTUSBlog, and the ABA Journal blog.

Feedspot collects content from websites around the world into one place, making it easier than ever for people to keep up with updates from their favorite websites. Their Top 100 Legal Blogs list is the most comprehensive and updated list of legal blogs on the internet. It includes law firms from 42 different countries around the globe and is hand selected by a panel of judges. Among thousands of legal blogs, Talkov Law was chosen as the #54 legal blog across the globe!

Talkov Law Top 100 Legal Blogs

Talkov Law’s attorneys frequently contribute to the Talkov Law blog by informing and educating the public on legal matters involving real estate law, family law, business law, bankruptcy law, and trusts & probate law. Our attorneys provide answers to frequently asked legal questions as well as legal updates, court rulings, and explanations to our readers through our blog posts.

Thank you Feedspot for the recognition and congratulations to the Talkov Law team on this achievement!

The entirety of Talkov Law’s blog posts can be found at: https://www.talkovlaw.com/blog/


Fraudulent Misrepresentation in California [Elements Examples Cases Defenses]

Fraudulent Misrepresentation Under California Law Experienced business fraud and real estate fraud attorneys in California are regularly called upon to determine whether a case involves actionable fraudulent misrepresentation under California law. To answer this question, it is important to review the elements, examples, cases, and defenses applicable to fraudulent misrepresentation in California courts. Elements of ... Read...

Fraudulent Misrepresentation Under California Law

Experienced business fraud and real estate fraud attorneys in California are regularly called upon to determine whether a case involves actionable fraudulent misrepresentation under California law. To answer this question, it is important to review the elements, examples, cases, and defenses applicable to fraudulent misrepresentation in California courts.

Elements of Fraudulent Misrepresentation in California

Under California law, to establish a claim for fraudulent misrepresentation, the plaintiff must prove:

  1. The defendant represented to the plaintiff that an important fact was true;
  2. That representation was false;
  3. The defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth;
  4. The defendant intended that the plaintiff rely on the representation;
  5. The plaintiff reasonably relied on the representation;
  6. The plaintiff was harmed; and,
  7. The plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff.
Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606 (quoting Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4th 429, 434); see Yamauchi v. Cotterman, 84 F.Supp.3d 993, 1018 (N.D. Cal. 2015) (“In California, the general elements of a cause of action for fraudulent misrepresentation are (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage”).

The Species of Fraud in California Under Civil Code §§ 1572 & 1710

Two statutes create the boundaries of fraudulent misrepresentation law in California. Under Civil Code § 1572:
Actual fraud, what. Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
3. The suppression of that which is true, by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive.
Under Civil Code § 1710:
A deceit, within the meaning of the last section, is either:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,
4. A promise, made without any intention of performing it.

Fraudulent Concealment Elements vs. Fraudulent Misrepresentation Elements

A fraudulent misrepresentation should not be confused with cases where something is not represented, but should have been. In those cases: “The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” Bank of America Corp. v. Superior Court (2011) 198 Cal.App.4th 862, 870.

Constructive Fraud Elements vs. Fraudulent Misrepresentation Elements

To establish “constructive fraud,” a plaintiff “must show (1) a fiduciary relationship, (2) nondisclosure, (3) intent to deceive, and (4) reliance and resulting injury. Constructive fraud is any breach of duty that, without fraudulent intent, gains an advantage to the person at fault by misleading another to his prejudice.”  Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1249–1250 (citing (Civ. Code, § 1573; Stokes v. Henson (1990) 217 Cal.App.3d 187, 197).  Civ. Code, § 1573(1) explains that: “In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him.” Accordingly, unlike an ordinary fraud, constructive fraud requires a fiduciary relationship, which only exists in a small portion of cases involving allegations of fraud.

Negligent Misrepresentation Elements vs. Fraudulent Misrepresentation Elements

Negligent misrepresentation does not require knowledge of falsity, unlike a cause of action for fraud. Tindell v. Murphy (2018) 22 Cal. App. 5th 1239.

1. Representation of an Important Fact – Material, False Statement Required for Fraudulent Misrepresentation

The first requirement for fraudulent misrepresentation is that the representation have been material, which is another way of saying important. In other words, immaterial, or unimportant, misrepresentations are not actionable as fraud. “Under California law, a fact is material if a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question. In this context, a fact is material, and the jury was so instructed, if there is a substantial likelihood that, under all the circumstances, a reasonable investor would consider it important in reaching an investment decision. Materiality is a question of fact for the jury, “unless the ‘fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable man would have been influenced by it.” Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1163 (citing Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 977).

2. Falsity of the Fraudulent Misrepresentation

“When pleading fraud, a complaint must adequately specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiff contends the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements.” Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F.Supp.2d 1086, 1094 (C.D. Cal. 1999). “[T]he most direct way for a plaintiff to demonstrate the falseness of the charged statements is to plead ‘inconsistent contemporaneous statements or information which were made by or available to the defendants.’…This means that “a plaintiff does not satisfy the falsity requirement by merely asserting that a company’s later revelation of bad news means that ‘earlier, cheerier’ statements must have been false. In fact, these types of allegations are called ‘fraud by hindsight’ and they do not establish falsity.” Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F.Supp.2d 1086, 1094 (C.D. Cal. 1999).

3. Intent to Defraud? Intentional Fraud vs. Negligent Misrepresentation

“In contrast to fraud, negligent misrepresentation does not require knowledge of falsity. A defendant who makes false statements honestly believing that they are true, but without reasonable ground for such belief, … may be liable for negligent misrepresentation….” Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243. Accordingly, fraudulent misrepresentation encompasses two types of torts. Indeed, the California courts explain that the cause of action includes situation where either: “The defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth.” Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606. The first example of a defendant knowing a representation was false when the defendant made it involves actual fraud, sometimes simply known as fraud or intentional fraud. Conversely, the second example of a defendant making the representation recklessly and without regard for its truth is in reference to negligent misrepresentation, which is a hybrid of negligence (an accident) and fraud, which is mistakenly assumed by many to only be available when the misrepresentation was made intentionally.

4. Intent for the Plaintiff to Rely on the Fraudulent Misrepresentation

The law is that: “The representation must have been made with the intent to defraud plaintiff, or a particular class of persons to which plaintiff belongs, whom defendant intended or reasonably should have foreseen would rely upon the representation. One who makes a representation with intent to defraud the public or a particular class of persons is deemed to have intended to defraud every individual in that category who is actually misled thereby.” Murphy v. BDO Seidman (2003) 113 Cal.App.4th 687, 695, as modified on denial of reh’g (Dec. 24, 2003).

5. Reasonable Reliance on the Fraudulent Misrepresentation

A plaintiff must show that they indeed relied on the misrepresentation, and that the reliance was reasonable. The first element in reliance is “actual reliance. A plaintiff asserting fraud by misrepresentation is obliged to plead and prove actual reliance, that is, to establish a complete causal relationship’ between the alleged misrepresentations and the harm claimed to have resulted therefrom.” OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864, as modified (Dec. 26, 2007). The second element in reliance is that “a plaintiff must also show ‘justifiable’ reliance, i.e., circumstances were such to make it reasonable for the plaintiff to accept the defendant’s statements without an independent inquiry or investigation. The reasonableness of the plaintiff’s reliance is judged by reference to the plaintiff’s knowledge and experience. Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff’s reliance is reasonable is a question of fact.” OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864, as modified (Dec. 26, 2007).

6. The Plaintiff was Harmed – Damages for Fraudulent Misrepresentation

Damages Required for Fraud

Deception without loss is not actionable as fraud or negligent misrepresentation. Creative Ventures, LLC v. Jim Ward & Associates (2011) 195 Cal.App. 4th 1430. Accordingly, no matter how big the lie may be, there is no cause of action for fraud absent damages.

Election of Remedies for Fraud

“When a party learns that he has been defrauded, he may, instead of rescinding, elect to stand on the contract and sue for damages.” Storage Services v. C.R. Oosterbaan (1989) 214 Cal.App.3d 498, 511. This means that a party may indeed consummate a transaction, then sue for damages.

Only Intentional Misrepresentation Allows for the Recovery of Punitive Damages, Also Known as Exemplary Damages

The law is clear that: “Punitive damages are recoverable in those fraud actions involving intentional, but not negligentmisrepresentations.” Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1241 (citing Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 790; Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 799 [no punitive damages recoverable for negligent misrepresentation]; Civil Code § 3294)).

7. Causation in Fraudulent Misrepresentation

The final requirement in fraudulent misrepresentation is that the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff. Said another way, the fraud must have been the cause of the damages claimed by the plaintiff. As courts have explained: “To recover for fraud, a plaintiff must prove loss proximately caused by the defendant’s tortious conduct. (Civ.Code, § 1709; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 718, p. 1041.)” Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 65, as modified (Apr. 24, 2007) (“Deception without resulting loss is not actionable fraud.”)

Defenses to Fraudulent Misrepresentation

There are a number of affirmative defenses to fraud. One such allegation that can be raised in a motion to dismiss is that the plaintiff did not plead fraud with the required pleading of particularity for fraud of who, what, where, why, and how. Even further, misrepresentations of opinion cannot form the basis of fraudulent misrepresentation, meaning the representation cannot be mere puffing. For example, a car dealer can describer a vehicle as a “solid vehicle” even if it may not be in the best of shape.

Contact an Experienced Fraudulent Misrepresentation Attorney in California

If you need legal assistance to establish a fraud claim or defend against a fraud complaint, contact the experienced Talkov Law business litigation attorneys and real estate litigation attorneys with knowledge of fraud claims and defenses for a free consultation by phone at (844) 4-TALKOV (825568) or online.

Talkov Law provides business attorneys in Los Angeles, Orange County, San Diego, San Bernardino, Riverside, Palm Springs, Palo Alto, and San Jose.

The skilled business attorneys at Talkov Law practice in the areas of:

Talkov Law provides real estate lawyers in Los Angeles, Orange County, San Diego, Riverside, Palm Springs, San Bernardino, Palo Alto, and San Jose.

The experienced real estate attorneys at Talkov Law are skilled in the areas of:


Foreign Language Newspapers Qualify for Adjudication as Newspapers of General Circulation – Gov. Code 6001

Newspaper in Languages Besides English Qualify to Run Legal Notices as Newspapers of General Circulation Under California Government Code 6001 In California, official legal notices and legal advertising can be published only in a newspaper of general circulation adjudicated by a court of law. Whether a publication chooses to seek adjudication as a newspaper under the ... Read...

Newspaper in Languages Besides English Qualify to Run Legal Notices as Newspapers of General Circulation Under California Government Code 6001

In California, official legal notices and legal advertising can be published only in a newspaper of general circulation adjudicated by a court of law. Whether a publication chooses to seek adjudication as a newspaper under the traditional criteria of Government Code Section 6000 or the alternative criteria of Government Code Section 6008, the publisher would be wise to choose an attorney skilled in this niche area of law.
The law imposes a limitation that a “newspaper devoted to the interests, or published for the entertainment or instruction of a particular class, profession, trade, calling, race, or denomination, or for any number thereof, when the avowed purpose is to entertain or instruct such classes, is not a newspaper of general circulation.” Cal. Gov. Code, § 6001.

However, Government Code 6001 does not mean that the newspaper must be in English. As the court in In re La Opinion (1970) 10 Cal.App.3d 1012, 1018 explained:

Government Code section 6000, as written and without additional judicially engrafted requirements, defines the qualifications of a newspaper of general circulation. A newspaper printed in a foreign language does not, for that reason alone, fail to meet the language of the statute so read. We are aware that most California statutes requiring publication of legal notices and legal advertising provide that the notice or advertisement shall be printed in English. Those statutory requirements go to the content of the notice or advertisement, however, and do not purport to restrict the nature of the newspaper in which the notice or ad appears.

As the leading secondary source on newspaper of general circulation laws in California explains: “A newspaper published in a foreign language may be considered to be a newspaper of general circulation.” 46 Cal. Jur. 3d Newspapers and Press Associations § 10 (citing In re La Opinion).

Contact a California Newspaper of General Circulation Attorney in Los Angeles, Orange County, San Diego, Riverside, Palm Springs, San Bernardino, Palo Alto, and San Jose today!

Many newspapers find themselves in contact with attorneys who have little or no experience in this specialized  area of law, which requires interpretation not found in the statutes or case law. This is all too common as there are only a handful of attorneys who have repeatedly litigated the issues that arise in newspaper adjudication in California. The experienced newspaper of general circulation attorneys at Talkov Law have a proven track record of prevailing on adjudications for newspapers throughout California. For a free consultation with experienced newspaper of general circulation attorney Scott Talkov, contact us by phone at (844) 4-TALKOV (825568) or online.


Fraud Must be Alleged with Particularity in Federal & Bankruptcy Court [FRCP 9(b)]

Requirements for Alleging Fraud in Federal & Bankruptcy Court Because “fraud is a serious charge, easy to allege and hard to prove” (In re Doctors Hosp. of Hyde Park, Inc., 308 B.R. 311, 322 (Bankr. N.D. Ill. 2004)), Federal Rules of Civil Procedure Rule 9(b) imposes the requirement on plaintiffs to allege fraud with particularity ... Read...

Requirements for Alleging Fraud in Federal & Bankruptcy Court

Because “fraud is a serious charge, easy to allege and hard to prove” (In re Doctors Hosp. of Hyde Park, Inc., 308 B.R. 311, 322 (Bankr. N.D. Ill. 2004)), Federal Rules of Civil Procedure Rule 9(b) imposes the requirement on plaintiffs to allege fraud with particularity in federal court, which includes bankruptcy court. Defendants are wisely advised to bring any vague allegations of fraud to the court’s attention to allow real estate fraud and business fraud cases to be dismissed at an early stage where the allegations as to who, what, where, why, when, and how of the purported fraud are lacking.

Heightened Pleading Standard of Federal Rules of Civil Procedure Rule 9(b) Require the Circumstances of Fraud to be Alleged with Particularity

Federal Rules of Civil Procedure Rule 9(b) states that: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Under Federal Rules of Bankruptcy Procedure Rule 7009: “Rule 9 F.R.Civ.P. applies in adversary proceedings.” This means that FED. R. CIV. P. Rule 9(b) is applicable to a § 523(a)(2)(A) nondischargeability proceeding alleging fraud. See, e.g., In re Kimmel, 2008 WL 5076380 at *1 (9th Cir. 2008).

“In order to properly plead fraud with particularity, the complaint must allege the time, and content of the fraudulent representation such that a defendant can prepare an adequate response to the allegations.” In re Kimmel, 2008 WL 5076380 at *1.

“‘Who, What, When, Where, and How’ of the Misconduct Charged” Must be Alleged in a Fraud Complaint

The heightened pleading standard is commonly cited as requiring the allegations to identify “the who, what, when, where, and how of the misconduct charged.” See, e.g. U.S. v. United Healthcare Ins. Co., 848 F.3d 1161, 1167 (9th Cir. 2016); Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010).

The Ninth Circuit in Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) made clear that: “Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).

In other words, Rule 9(b) requires plaintiffs to plead ‘the who, what, when, where, and how: the first paragraph of any newspaper story.’” In re Miltenberger, 538 B.R. 547, 553 (Bankr. E.D. Mo. 2015).

Pleading Standard for Bankruptcy Nondischargeability Based on Fraud Under 11 U.S.C. Section 523(a)(2)(A)

The heightened pleading requirement can arise in bankruptcy adversary proceedings, including nondischargeability litigation.

“Because an exception to discharge impairs a debtor’s fresh start, section 523(a)(2)(A) ‘should not be read more broadly than necessary to effectuate policy, e.g., preventing debtors from avoiding debts incurred by fraud or other culpable conduct.’” In re Sabban, 384 B.R. 1, 5 (B.A.P. 9th Cir. 2008), aff’d in part, 600 F.3d 1219 (9th Cir. 2010). In other words, the exception to discharge provided for in Bankruptcy Code Section 523(a)(2)(A) “should be construed strictly against creditors and in favor of debtors.” Id. “The Ninth Circuit requires that the provisions of § 523(a) exceptions to discharge should be construed narrowly.” In re Roberts, 538 B.R. 1, 9 (Bankr. C.D. Cal. 2015), aff’d, No. 1:12-AP-01371-MT, 2017 WL 5352672 (B.A.P. 9th Cir. Nov. 13, 2017), aff’d, 770 F. App’x 360 (9th Cir. 2019)

In the Ninth Circuit, “[t]o establish nondischargeability under § 523(a)(2)(A), a creditor must prove five elements: “(1) misrepresentation, fraudulent omission or deceptive conduct by the debtor; (2) knowledge of the falsity or deceptiveness of his statement or conduct; (3) an intent to deceive; (4) justifiable reliance by the creditor on the debtor’s statement or conduct; and (5) damage to the creditor proximately caused by its reliance on the debtor’s statement or conduct.” In re Gugliuzza, 852 F.3d 884, 888 (9th Cir. 2017) (citing In re Slyman, 234 F.3d 1081, 1085 (9th Cir. 2000)); see Graham v. Bank of Am., N.A. (2014) 226 Cal. App. 4th 594, 605–06 (elements of California cause of action for fraudulent misrepresentation).

As one Bankruptcy Court explained: “Fraud is a serious charge, easy to allege and hard to prove. The rules therefore require pleading with particularity. It must be clear from the beginning that the plaintiff has specific details of what happened, when, where, and to whom. No such details are alleged. [The fraud cause of action] will therefore be dismissed.” In re Doctors Hosp. of Hyde Park, Inc., 308 B.R. 311, 322 (Bankr. N.D. Ill. 2004).

As the Ninth Circuit Bankruptcy Appellate Panel explained: “Rule 9(b) of the Federal Rules of Civil Procedure, applicable in bankruptcy cases as Rule 7009, mandates that, ‘[i]n alleging fraud … a party must state with particularity the circumstances constituting fraud….’ The court may disregard any fraud allegations that do not satisfy Civil Rule 9(b)’s particularity requirement. Sanford v. MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir.2010). ‘To meet this standard, [LBS’s] complaint must ‘identify the who, what, when, where, and how of the misconduct charged.…” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir.2013).” In re Craciun, No. ADV 12-01158-BB, 2014 WL 2211742, at *5 (B.A.P. 9th Cir. May 28, 2014).

Motion to Dismiss for Failure to Allege Fraud with Particularity

Federal Rule of Civil Procedure (“Rule) 12(b)(6), also made applicable in bankruptcy by Federal Rule of Bankruptcy Procedure (“Bankruptcy Rules”) 7012, provides that a defendant may bring a motion to dismiss based on a “failure to state a claim upon which relief can be granted[.]”

“In order to survive a dismissal motion, however, a plaintiff must allege facts that are enough to raise his/her right to relief “above the speculative level.” In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 536 F.Supp.2d 1129, 1134 (N.D. Cal. 2008) (citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)).  A plaintiff must allege “enough facts to state a claim that is plausible on its face,” not just conceivable. Twombly, 127 S. Ct. at 1974. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) applied the heightened pleading requirement to find that: “A motion to dismiss a complaint or claim ‘grounded in fraud’ under Rule 9(b) for failure to plead with particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for failure to state a claim. If insufficiently pled averments of fraud are disregarded, as they must be, in a complaint or claim grounded in fraud, there is effectively nothing left of the complaint. In that event, a motion to dismiss under Rule 12(b)(6) would obviously be granted. Because a dismissal of a complaint or claim grounded in fraud for failure to comply with Rule 9(b) has the same consequence as a dismissal under Rule 12(b)(6), dismissals.” Vess found that “it is established law in this and other circuits that such dismissals are appropriate,” citing cases throughout the nation.

Citing this ruling from the Ninth Circuit in applying the standard from Iqbal and Twombly, the Hon. Fredrick E. Clement of the Bankruptcy Court for the Eastern District of California ruled in 2019 in analyzing an 11 U.S.C. § 523(a)(2)(A) nondischargeability claim that “[a] plaintiff must include the ‘who, what, when, where, and how’ of the fraud.” In re Jorgensen, No. 18-14586-A-13, 2019 WL 6720418, at *5 (Bankr. E.D. Cal. Dec. 10, 2019). Jorgensen found that a particular alleged misrepresentation under § 523(a)(2)(A) failed to state a claim such that it was dismissed.

Contact an Experienced Federal and Bankruptcy Fraud Defense Attorney in Los Angeles, Orange County, San Diego, Riverside, Palm Springs, San Bernardino, Palo Alto, and San Jose

If you need legal assistance to establish a fraud claim, or defend against a fraud claim, contact the experienced Talkov Law business litigation attorneys and real estate litigation attorneys with knowledge of fraud claims and defenses phone at (844) 4-TALKOV (825568) or online.

Talkov Law provides bankruptcy attorneys in Los Angeles, Orange County, San Diego, San Bernardino, Riverside, Palm Springs, Palo Alto, and San Jose.

The bankruptcy attorneys at Talkov Law are skilled in the areas of:


4 Secrets for Choosing a Custody Lawyer [How to Choose the Best Family Law Attorney for Your Custody Case]

Secrets to Help You Choose the Best Family Law Attorney for Your Child Custody Case in California. Find the Best Lawyer for Your Custody Battle!

Tips and Tricks to Choose the Best Family Law Attorney for Your Custody Case

Finding a family law attorney for your child custody case is not hard. Finding the right family law attorney for you and your child custody can be a bit trickier.

Just because Google says a particular custody attorney is the “best child custody lawyer near me” doesn’t mean that attorney will be a great match for you. Choosing the right family law lawyer for your case is not necessarily about finding the most expensive attorney in town or the most popular attorney according to Yelp.

The right family lawyer can make a real difference both in the outcome of your custody case and how you make it through the very emotional process. You want a trusting relationship. You want a lawyer who is serious about your case and listens to your needs.

Here is a basic guide to help you find the best family law attorney for you and your custody case.

Tip #1 – Do Your Homework

Generally, online search tools (i.e. Yelp, Google, Avvo) will group and recommend attorneys by practice area and location. Once you have found a few family law attorneys in your area, check out their websites. Is the website tasteful and helpful? Does the attorney look professional?

While online reviews do not provide a complete picture of an attorney’s reputation, they can be helpful to provide insight into other people’s experiences with that attorney. Making sure the attorneys you plan to meet with have a clean disciplinary record is a crucial step in the process of vetting potential family law lawyers.

Once you have narrowed down a list of family attorneys, meet with each of them (this can be done over the phone or by Zoom), and talk with them about your case to make sure you feel comfortable with the family lawyer you ultimately choose to represent you in your custody case.

Tip #2 – Ask Yourself: “Do I Like This Lawyer?”

One size does not fit all! You don’t get along with every single person on the planet, so it’s no surprise that you probably won’t feel comfortable with every family attorney you meet.

Does your personality mesh with the attorney’s? No matter how experienced a lawyer is, if you do not get along, your case will be more difficult.

You must be able to get along with your lawyer. The initial consultation is as much about deciding if you can have a working relationship with your attorney as it is finding out about how California custody law applies to your case. If the lawyer you are meeting with is abrasive, distracted, disorganized, or acts in any other way that does not give you confidence, consider how you will feel later on in the case if you choose this lawyer. This is especially true if you cannot reach a stipulation for joint custody and end up in family court.

Questions to ask yourself before retaining a family law attorney:

Does the attorney answer my questions completely and in terms that I can easily understand?

Does he or she really listen to me?

Does the attorney appear, speak, and behave in a professional, courteous, and intelligent manner?

Does the attorney demonstrate a sincere interest in helping me with my case?

Can the attorney articulate a strategy to help me resolve my case in the most advantageous way? Does he or she explain the pros and cons of various options?

Do I feel I can work well with this attorney?

Every attorney has a different style and personality. It’s important to meet with a few attorneys (this can be done over the phone or by zoom), and talk with them about your case to make sure you feel comfortable with the family lawyer you ultimately choose to represent you in your child custody case.

Tip #3 – Pick a Lawyer, Not a Law Firm

The most important relationship is not between the law firm and the client, but between the lawyer and the client.

Just because a law firm has extensive experience in family law and a good reputation, does not mean that every attorney at the firm has that experience and reputation.

Seek out a relationship with an individual attorney in a firm as your lawyer. Ask the lawyer you meet with this question: “Will you be handling my case?”

Choose the Best Family Law Attorney for Custody Case California Lawyer Child Custody Move-Away Father's Rights

If you have a good rapport with the lawyer you have your consultation with, but will ultimately not be working with that lawyer, you might want to ask to meet with the associate who will be handling your case.

Tip #4 – Don’t Choose a Family Law Attorney Based Solely on the Recommendation of a Friend

You may have friends or family who might have already gone through a custody case and might want to offer you legal advice or recommend an attorney, but they won’t necessarily know what is best for you.

If you have a friend who can’t say enough great things about his or her California custody attorney, you should absolutely research that attorney and schedule a consult with them; but don’t rely solely on the recommendation of a friend! A recommended attorney may have been perfect for your friend’s custody case, but that does not mean they are perfect for you or your case.

While friends and family are a great source for emotional support, they are not legal professionals.

Take the recommendation of a friend as the starting point of the process, not the end of it.

Ultimately, you will be the one to have to live with the results of your custody case, so it is important to be in charge of choosing the best family law attorney for yourself.

California’s family law procedures are complex and trying to navigate them without help of a skilled family lawyer can be frustrating. If you have questions about child custody, contact us by calling (844) 4-TALKOV (825568) or contact us online for a free consultation with our experienced family law attorney, Colleen Sparks, who can guide you through the court process in a prompt and clear manner.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, and surrounding areas in California. 

Our knowledgeable attorneys can also help if you have questions about any of the following:


The 5 Differences Between Adoption and Guardianship

Adoption vs. Guardianship: The 5 Big Differences Between Adoption and Guardianship of a Child in California Explained.

What is the Difference Between Adoption and Guardianship of a Child in California?

Many people confuse adoption and guardianship because they share some similar characteristics. Most important of these is that both processes have the same goal: providing a stable environment for a child.

Adoptive parents and legal guardians are both responsible for meeting the basic needs of the child, loving and supporting them, making sure they are fed and clothed, etc.

Adoption and guardianship are both legal arrangements for the care and custody of children, but there are some important differences between adoption and guardianship of a child.

The biggest difference between adoption and guardianship may be the time period for which the arrangement is effective; while adoption permanently places a child with a new family, guardianship is usually a temporary arrangement that places the child with a close friend or family member.

It is important to remember that both of these processes can be complex, and the specifics will vary based on the specific circumstances of each case. Only an experienced adoption attorney or probate attorney can advise you based on your specific situation, however, we have compiled an outline of the differences between adoption and guardianship to help you understand the basics.

Adoption of a Child in California

Adoption is the legal process of establishing a legal parent-child relationship when the adopting parent is not the child’s biological or birth parent. Adoptions can occur through relinquishment, termination of parental rights, or consent to adoption by a birth parent. Adoption severs the previous legal parent-child relationship and creates a new legal parent-child relationship between the child and adoptive parent.

Once the adoption process is final, the adoptive parent(s) have all the legal rights, duties, and responsibilities of any other biological or natural parent. That new parent-child relationship is permanent and is exactly the same as that of a birth family under the law, complete with a new birth certificate.

Guardianship of a Child in California

Guardianship is a temporary caregiving situation for a child when a person is responsible for the care and well-being of a child and has the legal authority to consent on behalf of a child. Legal guardianships can give guardians custody of a child until they are 18 years old; however, the child’s parents maintain their parental rights. However, courts overturn guardianship only if it is determined the guardian is no longer capable of caring for the child or maintaining their safety.

The Difference Between Adoption and Guardianship California Lawyer Custody Attorney Family Law .png

A legal guardian cannot pass along their own inheritance to the child in their custody unless a special provision is made in their will.

A legal guardian may be a grandparent, foster parent, aunt or uncle, sibling, friend of the family, step-parent, or someone else who knows the child. Being appointed as a guardian gives that guardian all the rights and responsibilities that a biological parent would have.

Generally, a guardian can only be appointed for a minor (child under 18 years of age).

Legal Guardians vs. Adoptive Parents

Both adoptive parents and legal guardians can provide the care, support and stability a child needs. However, the effects of each legal arrangement vary significantly.

Adoption vs. Guardianship Comparison Chart Talkov Law

In a guardianship, the court gives the guardian legal custody of a child, but the guardian does not adopt the child. The guardianship may last until the child turns eighteen (18) years old or the court may terminate the guardianship and return the child to the parents or appoint a new guardian. When someone becomes a child’s legal guardian, the biological parents retain their parental rights and can request visitation with their child.

The Difference Between Adoption and Guardianship California Custody Lawyer Attorney Family Law

The guardianship can be terminated when the parent’s situation improves and the biological parent shows they can care for their child. The court can also oversee the appointed guardian by supervising the guardianship, as well.

However, in an adoption, the parents lose parental rights to the child forever. They don’t have rights to visitation or to have any type of relationship with the child. Parents can’t get those rights back and adoptive families aren’t supervised by the courts.

Because of these differences, there are different scenarios in which each arrangement is the appropriate solution for a child.

Adopting as a Legal Guardian in California

If you currently have legal guardianship of a child you care about, you may be interested in establishing a more permanent parent-child relationship with him or her. You may be wondering if you can adopt the child you have a guardianship over. A person who is a legal guardian can apply to adopt the child under guardianship.

One or both of the child’s biological parents can sign an independent adoption consent or an agency relinquishment if the parent agrees with the adoption plan.

Differences Between Adoption and Guardianship California Family Law Lawyer Custody Attorney

If one or both of the parents object to the adoption, the guardian can request that the family court involuntarily terminate parental rights for abandonment, conviction of a serious felony or other good cause.

In California, termination of parental rights also may be granted if the child has been out of the parents’ custody for two or more years, and the court finds that the adoption is in the best interest of the child.

In every case, the guardian must obtain a home study according to the type of adoption (independent or agency) being pursued.

If the non-consenting parent contests the termination, the adoptive family must hire and pay for private legal counsel to pursue the matter.

California’s family law procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about family law procedures, contact our accomplished and dedicated family law and probate lawyers by calling (844) 4-TALKOV (825568) or contact us online for a free consultation.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, and surrounding areas in California. 

Our knowledgeable attorneys can also help if you have questions about any of the following:


Link to Category: Legal Journals Blogs

Or if you prefer use one of our linkware images? Click here

Use Weebly? Than submit your blog for free to our blog directory.