Memorandum of Law and Letter Sample

Memorandum of Law To: Al Smith, Senior Partner From: Research Associate RE: State and Federal Court System for California: Bob v. Al, Kathy, Dan Date: January 3rd, 2012 Questions Presented I. Overview of the State and Federal Courts in California. II. Which California court or courts hold jurisdiction for the amount in controversy in the three lawsuits that Bob wants to file? III. Why should Bob file his lawsuits in a particular court or courts? IV. Which case Bob must represent himself? Statement of FactsOur client Bob resides in Los Angeles, California and has asked for our advice in three separate cases in which he has loaned people money. In the first case, Bob loaned $500 to Al. Al signed a promissory note which says that Al will repay the loan in one month. Al has not paid anything. In the second case, Bob loaned $7,000. 00 to Cathy 14 months ago. Cathy signed a promissory note which states that she would pay the note in full in 12 months. She has not paid. In the third case, B ob loaned $55,000 to Dan 24 months ago. Dan signed a promissory note stating he would repay the loan in 18 months. Dan has paid nothing.Al, Cathy, and Dan all reside in Los Angeles, California. California Statutes of Limitation Written agreements (promissory note): 4 years, calculated from the date of breach. Oral agreements: 2 years. The statute of limitation is stopped only if the debtor makes a payment on the account after the expiration of the applicable limitations period. Brief Answers I. Superior courts now have trial jurisdiction over all civil cases including family law, probate, juvenile, and general civil matters. For monetary issues under $10,000 a person in pro-per living in Los Angeles could file a complaint in small claims court.All filings over $10,000 would have to be made in Los Angeles County Superior Court Civil Division. If we were to receive an unfavorable ruling above in a court other than small claims court we would file an appeal to the 2nd District Court of Appeal also located in Los Angeles, California. If that ruling was not in our favor we could than appeal to the California Supreme Court if necessary. Federal courts are similar in structure to State courts in California. The Supreme Court is the highest court in our country’s judiciary. There are two levels of Federal courts under the Supreme Court, they are The U.S. District Courts (the Trial Courts), and The U. S. Courts of Appeals (the Appellate Courts). II. The three lawsuits could be fled in Los Angeles County Superior Court. To save himself some time and money Bob could file the cases against Al ($500) and Cathy ($7,000) in small claims court. However, we would not be able to make appearances for Bob in those two cases since they are in small claims court, we could advise and prepare him on what he needs to say while he is in court. If Bob wants us to make the appearances for him we could file all three cases in Los Angeles Superior Court Civil Division.If Bob elects to handle the first two cases on his own in small claims court we could represent him on the third case against Dan ($55,000) in Los Angeles Superior Court Civil Division. Bob does have the option of filing against Dan in small claims court but he would only be able to receive $10,000 and would forfeit the remainder of the loan forever. Bob should also know that any of our fees would not be recoverable in small claims court except in rare cases. III. Bob should file the two smaller cases in small claims court to save him time and money in getting a judgment that can be enforced.Our firm can represent him in the third case against Dan and we should be able to recover attorney fees and cost for him when we win a judgment for him. After a judgment is made we can assist Bob in filing the appropriate liens in his case to make sure he has a way of recouping his losses from the defendants. IV. Bob must definitely represent himself in the first case with AL in small claims court. Since it i s such a low sum of money it would not be worth it for him to use our firm for anything other than legal advice in what documents he needs to file and things he needs to say while in court.If Bob feels comfortable after he does the first case he should have no problem proceeding on his own in the second case in small claims court. Discussion I. The State of California Supreme Court gains authority and jurisdiction through the Constitution of California, Article 6 Section 1. The authority of dividing the state into division creating the Court of Appeals jurisdictions is giving to the legislature through the Constitution of California, Article 6, Section 3. The legislature has set up six districts for the Court of Appeals based on geography. Within the jurisdiction of the Court of Appeals are the Superior Courts of California.The Superior Courts have been created by the authority of the Constitution of California, Article 6, Section 4. The authority of the Supreme Court is given via t he 14th Amendment of the United States Constitution and is subdivided into the different circuits and districts by authority of the United States Code Title 28, Part 1. In this Code are the needed statutes giving power and jurisdiction to the various federal courts. The court of appeals are comprised of thirteen separate judicial circuits as stated in United States Code Title 28, Part 1, Chapter 3,  § 41.This same statute covers the area of California, placing California into the Ninth Circuit Jurisdiction. United States Code Title 28, Part 1, Chapter 5,  § 84, (C), Section (1) divides the Central District into Divisions placing Los Angeles into the Central District Courts and the Eastern Division. This division comprises the counties of Riverside and San Bernardino. Court for the Eastern Division shall be held at a suitable site in the city of Riverside, the city of San Bernardino, or not more than 5 miles from the boundary of either such city. II. Bob is requesting information on three different cases that have similar fact patterns.Bob’s case Vs. Al will need to be filed within California Superior Court, Small Claims Court Title Three based on Civil Rules 3. 1 – 3. 2120. This division will hear Bob’s claim for the amounts under $10,000 SB221. A plaintiff may not file a claim exceeding $2500. 00 more than twice per year, so this should be kept into consideration should Bob have subsequent claims in the near future. Bob’s claim against Cathy based on the $7,000. 00 promissory note should be filed as an action as a Small Claims Case to be tried within the Superior Court Small Claims Division, of Los Angeles.Both cases against Cathy and Al can be handled similarly since the only difference is the dollar amounts. Bob can see how comfortable he feels after the first case is completed and then decide if he wants to handle it in small claims court or if he would like our firm to represent him in Superior Court Civil Division. In Danà ¢â‚¬â„¢s case if Bob didn’t think he would ever recover more than $10,000 he could handle this case in small claims court and save himself time and money although he would be taking a major loss.If Dan has the assets and ability for Bob to get his money back than our firm should represent him in the civil division of Los Angeles Superior Court and Bob with a judgment Bob would be able to recover attorney’s fees. III. By filing the first two cases in small claims court Bob will save money and time and be able to enforce a judgment he receives sooner instead of the two cases being tied up in court. Obtaining a Lien after judgment under CALIFORNIA CODES CODE OF CIVIL PROCEDURE SECTION 697. 310-697. 410 would be the only way to make sure our client can recoup his claims.The case with Dan should be filed in Los Angeles Superior Court Civil Division so Bob has a chance at recouping all of the money he has loaned. IV. Bob must represent himself in any case he wants to file in small claims court pursuant to California Civil Code, Section 116. 540 stating that except in circumstances that will not relate to this inquire about attorney representation, and â€Å"no individual other than the plaintiff and the defendant may take part in the conduct or defense of a small claims action. __________________________ Research Associate Client Letter Dear Bob, You have asked me to do some legal research regarding the overview of the State and Federal Courts in California and where to begin the recovery of three loans you made at different times to three different people in Los Angeles, California using promissory notes. For monetary issues under $10,000 a person living in Los Angeles could file a complaint in small claims court. All filings over $10,000 would have to be made in Los Angeles County Superior Court Civil Division.If we were to receive an unfavorable ruling above in a court other than small claims court we would file an appeal to the 2nd District Court of Appeal also located in Los Angeles, California. If that ruling was not in our favor we could than appeal to the California Supreme Court if necessary. Federal courts are similar in structure to State courts in California. The Supreme Court is the highest court in our country’s judiciary. There are two levels of Federal courts under the Supreme Court, they are The U. S. District Courts (the Trial Courts), and The U. S. Courts of Appeals (the Appellate Courts).It is my understanding that Al, Cathy and Dan are refusing to repay the generous loans that you made to them. Under California Statue of Limitations you have 4 years to file a claim for breach of a promissory note and you are well within your rights to do so as long as you don’t wait longer than four years from the date that the breach occurred. In order for you to start your two cases against Al and Cathy you will need to file a claim in Los Angeles County small claims court as the amounts of $500 and $7,000 i s well below the small claims court allowable limit of $10,000. I would be happy to ssist you in filing your claim and can also assist in preparing you for your court date but small claims court rules do not allow you to be represented by an attorney at court. By filing this case in small claims court and then obtaining a judgment this would be the cheapest and fastest way in helping you to recover your money in this case. The third case against Dan would have to be filed in Los Angeles Superior Court Civil Division. In this case you could also file for reasonable attorney’s fees and cost as well as the $55,000 loan. Please let me know whether there is anything else I can do for you. Respectfully, Al Smith