The Benefits of Class Actions

Let's suppose you suffered losses in some way - for example, you acquired stocks at artificially inflated prices because the company you invested in had overstated its revenues, or your employer misclassified you as an "exempt" employee so that it can avoid paying you for overtime, or you purchased a product that did not perform as advertised. You believe that the corporate wrongdoing also harmed other people. What can you do?

Although you can bring an individual action in an attempt to recover your losses, the reality is that it is often not economically feasible to hire an attorney if your financial losses are relatively small. Many attorneys will not agree to take on a small case. Even if you bring a lawsuit, you are essentially dealing with a David versus Goliath situation - a little guy fighting a big corporation in an uneven battle.

In these types of situations, a class action could help level the playing field. A class action is a lawsuit brought by a representative plaintiff, or "lead plaintiff," on behalf of others who are similarly situated. The class action mechanism allows a person to bring an action to recover for his or her own losses, as well as the losses of other people in a similar position. Because attorneys who agree to take on the class action will usually agree to work on a contingency fee basis - meaning that the attorneys will only be paid if the lawsuit settles or if they win at trial - someone who otherwise could not afford a lawyer or whose losses are minimal is able to bring an action to try to recover some of the money they lost or to otherwise right a wrong. If the plaintiffs' attorneys are successful in obtaining a recovery for the plaintiff and the class, they will apply to the court for payment of their attorneys' fees, which often ranges between 20-30% of the recovery. The plaintiffs' attorneys will also apply to the court for reimbursement of their expenses.

Because courts recognize that it would be impractical or too expensive for each person harmed by the same misconduct to individually file separate lawsuits - and the filing of many separate lawsuits arising out of the same misconduct would jam up the court system and possibly produce inconsistent judgments in similar cases - courts may allow a case to proceed as a class action if certain requirements are met.

These requirements usually include considerations of:
(1) numerosity - whether the class is large enough to make individual lawsuits impractical;
(2) commonality - whether the legal or factual claims are common to the class;
(3) typicality - whether the representative plaintiff possesses the same interests and suffered the same injury as the other class members; and
(4) adequacy - whether the representative plaintiff will fairly and adequately protect the interests of the class. If the court determines that these and certain other prerequisites are met, it can certify the action as a class action.

Class action cases can take many years and can be very expensive to litigate. The costs of attorneys' salaries, legal staff salaries, expert witnesses, class action notices, depositions, court filing fees, and other items can easily add up to hundreds of thousands of dollars. However, the risks that these fees and costs might never be paid are usually borne by plaintiffs' attorneys who agree to accept the case on a contingency fee basis and to advance the costs of litigation. If the case is successful, the attorneys receive a percentage of the recovery and reimbursement of their expenses - both of which are subject to court approval. At the same time, the representative plaintiffs and the members of the class stand to recover the money they lost or some other benefit. In short, class actions can be effective for righting wrongs and for helping those who otherwise would not have the money or resources to recover their losses. It empowers little guys to keep corporations honest.

Elizabeth Lin is an experienced class action litigator and the principal of The Lin Law Firm, A Professional Law Corporation. For more information, please visit http://www.thelinlawfirm.com/. ATTORNEY ADVERTISING. Prior results do not guarantee or predict a similar outcome with respect to any future matter.

View the original article here

Real Estate Litigation 101: Quiet Title Actions and Defaults

Quiet title actions in California are unique in that the California Code of Civil Procedure does not allow a real estate attorney to get a default judgment in a lawsuit.

What Is A Quiet Title Lawsuit?

Real estate attorneys bring quiet title lawsuits in order to resolve disputes over ownership of all or part of real property, including neighbor boundary disputes. These lawsuits can also be used to correct errors in a property's chain of title, even though there may not be a dispute over the ownership of the property.

An Attorney May Not Seek Default Judgment In An Action.

However, many real estate litigation attorneys and even judges are unaware of a requirement of Code of Civil Procedure that the court may not enter a default judgment in a lawsuit. Instead, the court must hold a hearing to hear testimony regarding the case. Code of Civil Procedure section 764.010 states, in part, that "The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may be offered respecting the claims of any of the defendants."

Because many judges are unaware of this provision, it is incumbent on the real estate attorney to notify the trial court that such a hearing is required.

A Defaulting Defendant May Still Appear For A Default Hearing In A Quiet Title Lawsuit.

Moreover, in a recent California Court of Appeal ruling, the appellate court held that the plain language of the statute allows a defendant to participate in the hearing, even if that defendant has not appeared in the case. In Harbour Vista, LLC v. HSBC Mortgage Services, Inc. (2011 WL 6318525 Cal.App. 4th Dist. 2011), the appellate court held that the trial court did not have the authority to enter a default judgment in a case and, additionally, that statute obligated the court to hold an evidentiary hearing in open court in which both plaintiff and defendant could participate.

"The Legislature has not left anything to the imagination about whether a trial court can enter a default judgment in an action. 'The court shall not enter judgment by default' is unequivocal," said the appellate court. "Once a judgment on any grounds becomes final, it is good against the entire world as of the time of the judgment. There is, for all practical purposes, no going back. Given the frequency with which actions involve real property-which is recognized as unique-it is understandable that the Legislature would want to take every precaution to assure title is adjudicated correctly. These precautions could reasonably include allowing a defendant having some claim to the property to present evidence, even if it has been dilatory in responding beforehand."

Quiet Title Default Hearings Require A Hearing In Open Court

The appellate court also considered whether the uses of the words "hear" or "hearing" require oral argument. Although other cases have found that this is not always the case, the court in this case held that a judgment requires a hearing in open court.

In the event that the court holds a properly noticed evidentiary hearing and no defendant turns up, then the court renders judgment in accordance with the evidence and the law based on what it has before it.

California real estate attorneys who handle quiet title lawsuits should be careful to educate the trial court about the requirement of having a hearing in open court with witnesses in order to establish quiet title over real property. If these rules are not followed, the default judgment easily gained is then easily lost.

Real estate attorney Los Angeles: Laine T. Wagenseller specializes in real estate litigation in Southern California, including quiet title lawsuits. To read more articles on real estate and business litigation, visit http://www.wagensellerlaw.com/. To contact Mr. Wagenseller, call (213) 996-8338 or email to ltw@wagensellerlaw.com.

View the original article here