Skip to Content

Ask a Lawyer – Main



Recently answered questions


Basic tax matters in family law?

Question Asked on: March 7th, 2014

Throughout each family case there are several tax implications that come to pass. Below is a brief outline of the most common tax implications:
Property Transfers: Per the Internal Revenue Code section 1041, transfers of property between former spouses as an incident of divorce is tax free. No gain or loss is recognized on such transfers. Incident to a divorce means the transfer occurs within one year of the marriage ceasing and is related to the cessation of the marriage (such as through a Judgment or Marital Settlement Agreement). Except in very limited circumstances, this section applies to any type of property, however and whenever acquired.
Spousal Support: Per the Internal Revenue Code section 71, alimony or separate maintenance payments are deductible by the payor and taxable income to the payee.
Child Support: Unlike spousal support, child support is neither deductible by the payor nor taxable income to the payee. The amount of child support paid has not impact on the issue of which parent may properly claim a child as a dependency exemption.
Dependency Exemption: Per the Internal Revenue Code section 152, the parent who has physical custody of a child for the majority of the year is entitled to claim the child as a dependency exemption unless that parent executes a written waiver enabling the noncustodial parent to claim the exemption.
Filing Status: If the parties are divorced by the last day of the calendar year, then the parties are limited on their tax filing choices to either single or head of household (if qualifying children are present). They may not file as married either jointly or separately. However, if the parties are married on the last day of the calendar year, even if separated, the parties have several choices for filing. They can file a joint tax return, file separate tax returns by filing married separately, or file head of household (if qualifying children are present) and the other married separately. Neither party can file single.

No matter how severe the injury, top settlement value is necessarily limited by the financial resources available to satisfy the claim. Thus, the policy limits and defendant’s personal assets must be taken into account in determining what the case can settle for. Barring evidence of collusion to shift an unfair share of liability to a more “fiscally worthy” defendant, relatively low settlements in comparison with the damages at stake and the settlor defendant’s then-apparent proportionate liability may be deemed in “good faith” in light of the settlor’s financial condition and insurance policy limits. “[A] disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured or underinsured, joint tortfeasor.” [Tech-Bilt, Inc. v. Woodward–Clyde & Associates]. Thus, e.g., a policy-limits settlement, though disproportionately low in comparison to the settlor’s then-apparent liability, is in “good faith” if the policy effectively amounts to the settlor’s only “asset.” [Schmid v. Super.Ct. (Sargent), supra—$55,000 policy-limits settlement in good faith in $500,000 damages case, because settlor had no other assets; County of Los Angeles v. Guerrero, supra—in light of settlor D’s “modest financial condition,” $30,000 policy-limits settlement in $1 million damages case held in “good faith” even though clearly disproportionately low compared to D’s more than 50% culpability.

Even if a punitives award is entirely reasonable in light of the nature of the misconduct and the amount of actual injury, harm or damages suffered, it can be so disproportionate to defendant’s ability to pay as to make the award excessive for that reason alone. However, without evidence of defendant’s financial condition, a reviewing court can only speculate as to whether the punitives award under challenge may be excessive. Each side must recognize the other’s problems and constraints in concluding a settlement. Many of these are inherent in virtually all bodily injury claim negotiations. Plaintiff’s lawyer must recognize the settlement constraints on the defense side. California State Law provides that insurance carriers are prohibited from extending coverage, or paying for, punitive damage assessments against their. Thus, unless the insured- defendant has substantial personal assets, the true value of the claim is only the actual damages a jury will award. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

Generally, there is a two-year statute of limitations to file suit for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”  An action for libel, slander or false imprisonment is subject to a one-year statute of limitations.  Ordinarily, a cause of action for defamation accrues when the defamatory statement is “published”—i.e., when defendant communicates the statement to a third person [Shively v. Bozanich (2003]. Where the communication was inherently “secretive” or confidential and thus not reasonably discoverable by plaintiff (e.g., entries in personnel records, communications by or to credit reporting agencies), accrual may be delayed until plaintiff discovers (or reasonably should have discovered) the defamatory statement [Shively v. Bozanich]. In one case, it was held that “similarly, a $10 million punitives award was affirmed in a slander of title case involving only $19,000 compensatory damages, based in part upon the potential harm that could have resulted from defendant’s wrongful conduct” [TXO Production Corp. v. Alliance Resources Corp. (1993)].

If the claim involves an on-the-job injury, the client will have to be advised of his or her rights and remedies under the workers’ compensation law and how this may impact the value of related claims against third parties other than the employer. An injured worker’s remedies against the employer or a co-employee are, absent narrow exception, solely under the workers’ compensation law —i.e., there is no “common law” action against the employer or a co-employee because, as a general rule, workers’ comp is the exclusive remedy for injury or death of an employee occurring in the course and scope of employment.  Ordinarily, whether an employee’s injury was sustained in the scope of employment turns on the facts of each case and is for the jury to decide unless, as a matter of law, the facts admit of only one conclusion. [Mason v. Lake Dolores Group, LLC (2004)]. The workers’ compensation law does not override more specific statutes expressly creating a damages cause of action in favor of certain classes of employees for specified employer misconduct. The theory is that the more specific statute is intended to implement specified public policy goals distinct from those created by the workers’ compensation law, and the Legislature could not have intended the latter to defeat the former [Shoemaker v. Myers (1990)]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

Injury from prescription drugs is not limited to actions based on environmental hazards. It also applies to injury arising from any harmful chemical, including prescription drugs. [Nelson v. Indevus Pharmaceuticals, Inc. (2006)]. An action for injury or illness based upon the exposure must be filed no later than the later of  two years from the date of injury; or  two years after plaintiff becomes aware of, or reasonably should have become aware of, (a) an injury, (b) the physical cause of the injury, and (c) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another.

Furthermore, counties are responsible for the health care of persons who are ineligible for Medi–Cal but unable to afford medical care (see Welf. & Inst.C. § 17000 et seq.). Persons who receive medical care under a county’s Medically Indigent Adult (MIA) program must sign an agreement to reimburse the county from the proceeds of any litigation or settlement they may receive from a third party liable for the injury. The county’s right of reimbursement is not a lien, and its only remedy for an MIA’s failure to reimburse is to bring an action against the MIA for breach of the agreement [Newton v. Clemons,]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

Unless and until a lawsuit is filed, insurers may not divulge policy limits without the insured’s consent. However, insurers can usually be persuaded to obtain the insured’s consent to furnish this information. From a defense perspective, withholding policy limits information may be counterproductive. Plaintiffs can always obtain this information by filing suit and conducting discovery or forcing a plaintiff to litigate in order to obtain pertinent coverage information may serve only to drive up legal costs and inhibit productive negotiations [Boicourt v. Amex Assur. Co. (2000)]. Indeed, an insurer’s refusal to contact its insured or disclose policy limits creates a conflict.

between the insurer (who is trying to induce a low settlement) and the insured (who wants a settlement within policy limits) with the possible result of “bad faith” liability for any ensuing judgment that exceeds policy limits. There is a potential conflict where the claim against the insured might result in a recovery exceeding the policy limits unless the insured effects a policy limits settlement. The insured, of course, is motivated to accept a policy limits offer so as to avoid “excess liability exposure”; the insurer, on the other hand, may want to attempt the negotiation of a “better deal” or gamble on a better outcome at trial [Bogard v. Employers Cas.Co. (1985)]. Before meaningful settlement discussions can get under way, the claim must be assigned a reasonable settlement value. For this purpose, claimant will need to know whether the tortfeasors have applicable insurance coverage and, if so, what the policy limits are, whether there are excess and/or umbrella coverages, and whether the insureds and/or carriers claim the policy does not apply.  Moreover, claimant is entitled to recover the reasonable value of all medical expenses that have been incurred, and that are reasonably certain to be incurred in the future, as a result of the injury [Howell v. Hamilton Meats & Provisions, Inc. (2011)].

Moreover, to recover for past or already-incurred medical expenses, claimant must prove the amount of each claimed expense; that each of the charges was reasonable; that each of the services or supplies for which medical expenses are claimed was actually given and was reasonably necessary to diagnose or treat the injuries; and that the condition that necessitated each medical-related expense was a proximate (legal) result of the injury caused by defendant [Calhoun v. Hildebrandt (1964)]. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, clock here.

A binding settlement is reached upon timely and proper acceptance of the proposed terms. At that point, the offer, together with original proof of acceptance, may be submitted with a written judgment for the court’s signature and entry of judgment. Where a settlement, judgment or award fails to specify the portion representing past medical expense damages (or where a settlement allocation appears suspect or otherwise unreliable), the court should be “guided” by “relevant statutory and case law” in determining the appropriate amount of the State’s lien. [Welf. & Inst.C. § 14124.76(a); see Lopez v. Daimler Chrysler Corp. (2009)-- not an abuse of discretion to make allocation based on injured party's evidence where Department failed to explain or present evidence to support its allocation [Lima v. Vouis (2009)]. If the beneficiary’s injuries have pretty much run their economic course by the time the recovery is obtained, a lien amount in the proportion that medical expenses bear to the total amount of the claim, and not the recovery may be considered appropriate. [Bolanos v. Super. Ct. (State Dept. of Health Care Services) (2008). California law gives a health care provider who accepts Medi–Cal payment for services rendered the right to file a lien for the full cost of its services against the entire amount of any judgment, award or settlement obtained by the patient/beneficiary against a third party responsible for the beneficiary's injury.  The provider's “substitute billing” lien is subject to the State's prior recovery  and may be enforced only if the provider fully reimburses the State for any Medi–Cal payments it received [Welf. & Inst.C. § 14124.791].  It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

A victim of DV assault must file suit within three years after the later of the last act of domestic violence that gave rise to the cause of action, or the date plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act of domestic violence. [Pugliese v. Super.Ct. (Pugliese) (2007)]. Recovery is not limited to domestic violence occurring within 3–year limitations period so long as plaintiff shows continuing course of abusive conduct. Moreover, crime victims and their families who suffer unreimbursed pecuniary losses may receive assistance from the State Restitution Fund under a program administered by the California Victim Compensation and Government Claims Board. Pecuniary losses compensable under the program generally include medical expenses, mental health counseling expenses and loss of income.  The State is subrogated to the rights of any victim who receives such assistance payments, up to the amount of the payments; and also has a lien, up to the amount of the payments, on any judgment, award or settlement obtained by, or on behalf of, the victim.

Evidence of plaintiff’s bills from medical care providers is of course relevant to show his or her expenses and that the alleged services were performed. But these bills will not alone support the medical claim  since they do not reveal whether the charges were reasonable, whether they were for reasonably necessary medical attention to an injury-related condition, whether they were for treatment of a condition proximately caused by defendant, and whether the amount billed was actually paid or required to be paid [McAllister v. George (1977)].  The most effective way to support the medical expense claim is to elicit testimony from plaintiff’s own treating physicians. They can be questioned about the nature and extent of the injuries, the treatment and medication prescribed, the need for such treatment and medication, and the reasonableness of the charges. These physicians can also be used to lay the foundation for introduction into evidence of relevant medical bills and reports. Moreover, once plaintiff establishes a right to recover (i.e., burden met on issue of liability), the verdict must include compensation for whatever pain and suffering has been proved. The amount of such compensation is generally left to the “impartial conscience and judgment” of the trier of fact. But an award that fails to include any compensation for pain and suffering is inadequate as a matter of law. [Capelouto v. Kaiser Found. Hosps]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury claim.

To read more, click here.

Check both judgments to see exactly what they are for. You will see if they are in fact identical or are actually for different things. Most probably, they are for different things, but checking it again will not hurt.

However, don’t depend your credit negotiations on your case against the employer because is not going to affect the judgment related to your eviction, not to mention that it may take years to be settled. The longer you wait, the more interest will accumulate on your debt.

Don’t wait any longer. You may get relief from debt and be able to come to an agreement with your creditors with the help of an attorney who’s an expert in negotiations. Consult with an attorney who could provide you with a more detailed advice and other options and course of action.

To read more, click here.

The partner may or may not claim, depending on different factors. For example, what kind of partnership did you have with the former partner? The California Secretary of State identifies three major types of partnerships:  General Partnership, Limited Partnership and Limited Liability Partnership. California laws bestow different benefits and obligations depending on the type of partnership. Also, when and why did the partner leave the partnership? The answers to such questions and others are important in determining the partner’s right to claim. It would be best to consult with a lawyer to be able to discuss your issue in detail and let you know whether or not your former partner has a right to claim from the judgment.

To read more, click here.

Causation” is an essential element of a tort action. Defendants are not liable unless their conduct such as the act or omission constituting a breach of duty to plaintiff was a “legal cause” of plaintiff’s injury. [Saelzler v. Advanced Group 400 (2001). Legal causation is generally a question of fact to be determined by the jury ... unless, as a matter of law, the facts admit of only one conclusion. [Ortega v. Kmart Corp. (2001)].  The burden of proving lack of causation is properly shifted to a defendant who, being prima facie at fault in an automobile accident, asserts brake failure as a defense. Plaintiff should not be penalized if postaccident examination of the vehicle cannot possibly uncover the cause of the alleged brake failure (e.g., the damage has already been repaired or is too severe to permit analysis of the braking system). Defendant is in a better position to discover and preserve evid ence of his or her own braking system and hence should be required to show the cause of the failure. [Harris v. Irish Truck Lines, Inc., supra,].

Ordinarily, tort liability cannot be established unless plaintiffs can prove their injuries resulted from the tortious acts of a particular defendant or defendants. As a general rule, the burden of proof as to negligence (duty and breach) and causation rests upon plaintiff; and plaintiff does not meet this burden simply by demonstrating that one of several defendants could have been responsible. However, where an accident is of such a nature that, in light of past experience, it probably was the result of someone’s negligence and defendant is probably the one responsible, the law may permit the trier of fact to draw an inference of defendant’s negligence. This is the doctrine of “res ipsa loquitur.” It is an evidentiary rule. In California Law, the doctrine is defined as a presumption affecting the burden of producing evidence -i.e., provided three preliminary fact conditions are met, defendant is presumed to have been negligent and the burden shifts to defendant to produce evidence either that he or she was not negligent or that any negligence on his or her part was not a proximate cause of the occurrence. It would be best o seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

The California State Law provides that If defendant has not appeared in the action, the statement must be served in the same manner governing service of summons—i.e., service of statement by mail on non-appearing defendant ineffective despite giving defendant actual notice of amount of damages sought.  If defendant has appeared, the statement must be served upon his or her attorney or, if defendant is in pro per, in the manner provided for service of summons or as permitted by law through service by mail, at defendant’s place of residence, etc. Where the court has authorized service of summons and complaint by publication on a defendant who, despite the exercise of reasonable diligence, cannot be located, the statement of damages is properly served simultaneously by publication as well; plaintiff need not obtain a separate court order for publication of the statement we must hold as a matter of constitutional law that the equivalent of a statement of damages be served in the same manner as a summons prior to entry of a default judgment against a defendant served by publication” [Anastos v. Lee (2004)].

As soon as a lawsuit is filed and summons is served, the claim will be assigned to a defense lawyer hired by the insurance carrier. The carrier has an affirmative obligation to employ an attorney to respond to the complaint as part of its duty to defend the insured. Although the claims representative will often participate in further settlement talks and must approve any settlement on behalf of the carrier, negotiations from this point on will often be conducted with the carrier’s lawyer. Also, under certain potential conflict of interest circumstances, the insurer may be required to pay for independent defense counsel to represent its insured Therefore, once suit is filed, several new personalities may be introduced into the negotiations. It would be best to seek personal assistance from a lawyer in order to help you with the personal injury case.

To read more, click here.

Generally, in personal injury cases under the California Law, the individual who personally suffered the injury is the real party in interest entitled to maintain suit. As an exception, A person or entity obligated to pay for a loss caused by another may, by virtue of the payment, become subrogated to whatever claim the payee has against the person causing the loss. For example, in the personal injury context, an insurance company which pays its insured for injuries caused by a third person is subrogated to the insured’s claim against that third person [ State Farm Gen. Ins. Co. v. ells Fargo Bank, N.A. (2006)]. Such payment, in effect, operates as an assignment by operation of law of the injured party’s claim, and the insurance-company subrogee/assignee is thereafter the real party in interest on the claim [Automobile Ins. Co. of Hartford, Conn. v. Union Oil Co. (1948)].

Emotional distress damages are recoverable in a “bad faith” action brought by an insured against his or her insurer but only when the insured establishes actual financial loss resulting from the insurer’s breach of the covenant of good faith and fair dealing. Simple delay in payment, absent other egregious circumstances, does not constitute sufficient injury to support emotional distress damages[Waters v. United Services Auto. Ass'n (1996)]. Moreover, when an insurance carrier becomes subrogated to the claim of an insured against a third party tortfeasor, the payment of insurance proceeds is no longer a ‘collateral source.’ Where both the subrogee [insurer] and subrogor [insured] have a right of action against the tortfeasor  the tortfeasor would have potential double liability if payment of insurance benefits by the subrogee to the subrogor is allowed to be designated a ‘collateral source’ [ Ferraro v. Southern Calif. Gas. Co,]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

According to the California State Law some insurance policies like Kaiser cover the insured’s medical bills, but give the carrier a right of reimbursement from the insured claimant in the event of recovery from a third party. Such medical liens or rights of subrogation reduce the net value of the potential claim and thus might make legal action economically impractical. In addition to subrogation and intervention rights, Medicare has specific rights to obtain reimbursement of benefits paid with respect to a Medicare beneficiary injured by a third-party tortfeasor: The beneficiary “or other party” who receives a “third party payment” is required to reimburse Medicare within 60 days [ Zinman v. Shalala (ND CA 1993)].

The lienholder is usually willing to reduce its lien to help close a settlement. Indeed, negotiations as to lien cuts are conducted in almost all these cases. They are usually a productive means of moving a case toward settlement because the lienholder is aware of the expenses it will have to incur if the case goes to trial in an effort to recoup some of the dollars it has already paid out. If plaintiff received compensation for the injuries from a workers’ comp carrier, Medi–Cal, Medicare, Kaiser Insurance or other benefit provider, that entity may be entitled to recover such payments from any settlement or judgment against defendant. Similarly, an injured Medicare beneficiary must reimburse any medical expenses paid by Medicare. If an insurer is involved in the claim, the insurer must report the settlement to Medicare; and if the beneficiary fails to reimburse Medicare, the insurer must do so. (Medicare may also assert reimbursement rights against plaintiff’s attorney.) Thus, as a practical matter, the insurer is not going to release the settlement proceeds unless Medicare’s reimbursement rights have been satisfied. Medicare is not bound by the parties’ settlement allocation between medical expense damages and other damages. This is so even where a court approved the allocation. However, Medicare normally defers to an allocation made through a jury verdict or after a hearing on the merits. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury case.

To read more, click here.

The California Law provides that it is a physician’s duty to disclose information material to a patient’s decision to undergo treatment is imposed by law. The minimum required disclosure—i.e., the potential of death or serious harm inherent in a given procedure and an explanation in lay terms of the significant potential complications— is not governed by the standard practice of the physician’s community and thus is not a proper subject of expert testimony [Cobbs v. Grant (1972]. A patient’s death or deterioration of an existing condition may be the result of concurrent causes: the existing illness or condition and alleged medical malpractice such as the physician’s failure to properly diagnose or treat the condition. The malpractice is not actionable unless it—and not the existing condition—was the probable cause (greater-than–50% likelihood) of the injury or death. [See Simmons v. West Covina Med. Clinic (1989)].

Furthermore, a tortfeasor is liable for any subsequent economic damages attributable to negligent medical care or treatment that aggravates plaintiff’s original injury. The theory is that the aggravated damages are within the chain of legal causation traceable back to the original tortfeasor: i.e., medical treatment—whether properly or negligently administered—is a direct and foreseeable consequence of the injury caused by the original wrongdoer. [Ash v. Mortensen (1944)]. The same principle applies in a medical malpractice action where plaintiff’s initial injury at the hands of one treating physician is compounded by the subsequent negligence of other medical practitioners. [See Maxwell v. Powers (1994)]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury claim.

To read more, click here.

The California Law provides that a claimant is entitled to recover the reasonable value of all medical expenses that have been incurred, and that are reasonably certain to be incurred in the future, as a result of the injury. [Howell v. Hamilton Meats & Provisions, Inc. (2011). Ordinarily, tort liability cannot be established unless plaintiffs can prove their injuries resulted from thetortious acts of a particular defendant or defendants. As a general rule, the burden of proof as to negligence (duty and breach) and causation rests upon plaintiff; and plaintiff does not meet this burden simply by demonstrating that one of several defendants could have been responsible. [See Sindell v. Abbott Laboratories (1980) 26]. However, there are some exceptions to this rule. These are situations in which, for policy reasons, the burden effectively shifts to defendants to absolve themselves from responsibility or to show that some other defendant or event caused the injuries. The conditions for res ipsa loquitor are that the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence, that the accident was caused by an agency or instrumentality within the defendant’s exclusive control, and that the accident was not due to any voluntary action or contribution on plaintiff’s part. [Newing v.Cheatham (1975)]. The use of res ipsa is especially suited in cases of “egregious” medical or dental malpractice where “the unwitting and often unconscious or semi-conscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting.” [Blackwell v. Hurst (1996)].

The appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence, expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician or other health care provider under the circumstances. [See Flowers v. Torrance Mem. Hosp. Med. Ctr. (1994) ]. Although alleged misconduct may have increased plaintiff’s previously existing risk of illness or injury, plaintiff cannot prevail on a negligence cause of action unless he or she demonstrates a reasonable probability (i.e., a greater-than–50% chance) defendant actually caused plaintiff’s injury. If the injury would have likely resulted in any event, it cannot be legally attributed to defendant. [Whiteley v. Philip Morris Inc. (2004)]. Moreover, evidence that a medical bill has not been paid can be introduced to show that the charges were unreasonable. (The inference is that if plaintiff had agreed with the bill, he or she would have paid it.) [See Latky v. Wolfe (1927)] However, nonpayment may be due to other reasons (e.g., P simply could not afford the charges) and plaintiff should be prepared to testify accordingly. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury claim.

To read more, click here.

If the medicine was prescribed by a physician, the issue may be considered as a medical malpractice, otherwise a negligence action may be filed. For medical malpractice, the California Law provides that the appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence, expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances. [Flowers v. Torrance Mem. Hosp. Med. Ctr. (1994)]. A patient’s death or deterioration of an existing condition may be the result of concurrent causes: the existing illness or condition and alleged medical malpractice (e.g., physician’s failure to properly diagnose or treat the condition). The malpractice is not actionable unless it—and not the existing condition—was the probable cause (greater-than–50% likelihood) of the injury or death. [Simmons v. West Covina Med. Clinic (1989)].

For negligence, the consumer expectation test is not appropriate to measure a design defect in prescription drugs. “While the ‘ordinary consumer’ may have a reasonable expectation that a product such as a machine he purchases will operate safely when used as intended, a patient’s expectations regarding the effects of such a drug are those related to him by his physician, to whom the manufacturer directs the warnings regarding the drug’s properties. The manufacturer cannot be held liable if it has provided appropriate warnings and the doctor fails in his duty to transmit these warnings to the patient or if the patient relies on inaccurate information from others regarding side effects of the drug.” [Brown v. Super.Ct. (Abbott Laboratories) (19880]. As a matter of law, manufacturers are immune from “design defect” strict liability for injuries attributable to prescription drugs. So long as the drug was properly prepared (no “manufacturing defect”) and accompanied by warnings of its dangerous propensities that were known or scientifically knowable at the time of distribution (no “warning defect”), drug manufacturers cannot be held strictly liable for injuries caused by prescription drugs; manufacturer liability for a “design defect” will lie only on a negligence theory. [Brown v. Super.Ct. (Abbott Laboratories)(1988)]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury claim.

To read more, click here.

The California State Law does not provide for a specific period of giving medication for children. Where a negligence action is predicated on defendant’s violation of a statute, ordinance or public entity safety regulation, plaintiffs may be entitled to the benefit of the “negligence per se” doctrine in establishing their prima facie case. This doctrine presumes defendant’s duty and breach (failure to exercise due care); and the only issue left for plaintiff to prove is whether the violation proximately caused the injury or death, the “negligence per se” doctrine as a presumption affecting the burden of proof: i.e., defendant’s failure to exercise due care is presumed if: defendant violated a statute, ordinance or safety regulation of a public entity; the violation legally caused injury or death; the occurrence resulting in the injury or death was of a nature that the statute, ordinance or regulation was designed to prevent; and the victim was among the class of persons for whose protection the statute, ordinance or regulation wasadopted. The burden is on the proponent of the doctrine to demonstrate that all four of the above conditions are met. The first two conditions which are defendant’s violation and causation normally are fact questions for the jury, but may be decided by the court as a matter of law where reasonable minds could not differ. The last two conditions are always legal issues for the trial court. [Hoff v. Vacaville Unified School Dist. (1998)]. It would be best to seek personal assistance from a lawyer in order to guide you with personal injury cases.

To read more, click here.

 

The California Law provides for a Wrongful Death Claim which is a separate statutory cause of action in favor of specified heirs of a person who dies as a result of the “wrongful act or neglect” of another. Under a wrongful death cause of action, the specified heirs are entitled to recover damages on their own behalf for the loss they have sustained by reason of the bodily injury victim’s death. Although the statute uses the term “injury” rather than “injury or death,” “injury” is deemed to include injury suffered by the heirs because of the death; and “any action” as used by the statute literally means just that—any action, including wrongful death. The decedent’s children are eligible wrongful death claimants regardless of whether they are entitled to succeed to any portion of decedent’s estate—i.e., whether or not they are decedent’s testate or intestate heirs. [See Desplancke v. Wilson (1993)]. The appropriate standard of care required of a medical professional is not a matter of common lay knowledge. Therefore, except in cases of “egregious” medical negligence expert medical testimony is required in medical malpractice actions to establish the standard of care required of a physician (or other health care provider) under the circumstances.

Under the doctrine of “respondeat superior,” an employer may be liable for an employee’s or “ostensible employee’s” tortious acts committed within the scope of the employment. Although a physician is not a hospital’s “ostensible agent” simply because he or she enjoys medical staff privileges, hospital patients generally look to the hospital for medical care and presume that the medical personnel are acting on their behalf. “Thus, unless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred.” [Mejia v. Community Hosp. of San Bernardino (2002)]. Indeed, cases have observed that a plaintiff patient seeking to prove a physician is a hospital’s ostensible agent need not show he or she actually believed the physician was employed by the hospital, or changed his or her position or otherwise relied to his or her detriment based upon the belief that the physician was an agent of the hospital . Ostensible employment within the medical context may be found if “(1) the service of the physician is performed on what appears to be the hospital’s premises; (2) a reasonable person in plaintiff’s position would believe that the physician’s services are part and parcel of services provided by a hospital; and (3) the hospital does nothing to dispel this belief.” [Ermoian v. Desert Hosp.,]. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury case.

To read more, click here.

Taking money from IRA is considered income, and if you withdraw a sum that is large enough, it may compromise your chances to qualify for a Chapter 7. Your overall income at the time of filing must generally not be beyond the median. But you also have the option to file for Chapter 13.

However, even if you may not meet the income requirements, there may still be some possibility of qualifying for a Chapter 7. Since bankruptcy is a complex process and there are so many things to take into consideration, it is best to work with an expert bankruptcy lawyer for guidance.

To read more, click here.

You or your counsel need to provide the listed recipients a complete copy of the judgment or order which bears an “Entered” stamp by United States mail, overnight mail, facsimile transmission or email within 72 hours from the receipt of the order.

Then the motion and notice of motion, along with proof of service, must be filed with the clerk no later than the next business day following service of order. This is a very important step that you should not miss.

To read more, click here.

You may get a lease on a car after bankruptcy if you will be able to find a dealer who is willing to approve your lease post-bankruptcy. Some dealers may be willing, but you may expect a lot of them to give a higher interest in financing. While some may be willing to grant loans, there are dealers that would only deal with you if your credit score has reached above 720.

Keep in mind that you need to be upfront and let them know about bankruptcy and your real credit standing during your inquiry, because they will find out anyway through credit checks. Credit checks may even hurt your credit score by several points per check, so it is better to just come clean from the start.

To read more, click here.

Subject to exemptions for excess and umbrella policies and in the absence of proper waivers, the Uninsured Motorist Act requires every automobile liability insurance policy issued in California to include coverage designed to compensate insureds or their heirs or legal representatives for bodily injury or wrongful death inflicted by the owner or operator of an “uninsured vehicle.” If not expressly provided, minimum UM coverage will be deemed included by law. Uninsured motorist coverage is not protection regardless of fault. The insurer’s liability is contingent on the insured’s legal right to recover from the uninsured motorist under general principles of tort law. If the carrier and the insured are unable to agree on the legal liability issue, or on the amount of damages involved, they are required to submit the matter to arbitration.

The insurance company’s liability is contingent upon the insured’s being able to prove he or she is legally entitled to recover damages for bodily injury or wrongful death from the uninsured motorist. An uninsured motorist claim based on negligence (as most of them are) requires the claimant to establish a prima facie case of negligence; and the insurer may assert whatever potential defenses would be available to the uninsured motorist (because defenses could reduce or negate the “legal right” of recovery). The amount payable under a policy providing uninsured motorist coverage may be reduced by the following: amounts paid or payable (present value) under any workers’ compensation law; amounts paid or payable under the insured’s automobile medical payment insurance; and amounts recoverable from any other person insured under the liability policy of which the uninsured motorist coverage is a part. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

 

In all civil cases, plaintiffs will ordinarily want to know whether defendants have the financial means to satisfy a judgment—primary coverage, as well as possible “excess” and/or umbrella coverage. However, discovery of insurance information also impacts these particularly important aspects of personal injury litigation. Before meaningful settlement discussions can get under way, the claim must be assigned a reasonable settlement value. For this purpose, claimant will need to know whether the tortfeasors have applicable insurance coverage and,  if so, what the policy limits are, whether there are excess and/or umbrella coverages, and whether the insureds and/or carriers claim the policy does not apply. No matter how severe the injury, top settlement value is necessarily limited by the financial resources available to satisfy the claim. Thus, the policy limits and defendant’s personal assets must be taken into account in determining what the case can settle for. Various options are available to the parties where good faith negotiating efforts fail to bring about a reasonable settlement. For instance, an early “policy limits demand” letter to defense insurance carriers is a popular plaintiffs’ tactic to speed along the settlement process. The demand letter recaps the liability case against the insured and itemizes plaintiff’s consequential damages to date (itemized wage losses, medical expenses, etc.). It typically requests a “policy limits” settlement, “reminding” the insurer of its “excess liability” exposure to its insured in the event the case does not settle and a judgment beyond policy limits is entered against the insured defendant. Plaintiff need not seek the same remedy in the action at law that he or she sought in the administrative proceeding. So long as plaintiff pursues the same wrong, defendant has adequate notice of the claim and is not prejudiced by the delay in filing suit[Daviton v. Columbia/HCA Healthcare Corp]. It would best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

No. A debtor is required by law to fully disclose all their assets and debts when filing for Chapter 7 bankruptcy. All creditors should be informed of a Chapter 7 bankruptcy by the debtor. If creditors were not included in the petition whether through honest mistake or by the willful act of the debtor, creditors may still be able to continue collection of debts unless the time allowed by law to collect such a debt has passed.

Debts that survived a prior bankruptcy because of fraud by the debtor are still collectible, even if they were unsecured debts.

To read more, click here.

That depends. If you file for Chapter 7, parking tickets are not dischargeable. This is because parking tickets are considered as debt to the government, therefore it is non-dischargeable.

11 U.S.C. §523(a)(7) states that an individual debtor’s debt is not discharged:

to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty—

(A) relating to a tax of a kind not specified in paragraph (1) of this subsection; or

(B) imposed with respect to a transaction or event that occurred before three years before the date of the filing of the petition;

 However, if you file for Chapter 13, it may be dischargeable if it remains unpaid when the plan ends. Consult with an experienced bankruptcy attorney for guidance and advice in the management of your debt.

To read more, click here.

Bankruptcy could be a really complex issue for most folks. There are so many things to take into consideration that even those with some basic knowledge may be at a loss on what to do and where to start.

That’s the reason why it is always best to consult with someone knowledgeable and experienced about the subject such as a bankruptcy lawyer. Your lawyer will be able to provide you with the information you need and give you advice on the best action you need to take in order to manage your debt.

For more information, click here.

The significance of counsel’s first consultation with a personal injury claimant must not be underestimated. If properly conducted, this initial meeting should: Provide the foundational information from which the prospective client decides whether to retain an attorney and from which the latter would decide whether this is a case he/she may ethically and legally accept, and whether it is a case he/she  otherwise wants to accept. At the same time, the consultation should enable counsel to make a preliminary assessment of the prospective client’s credibility. His or her probable character as a witness is important to the decision to accept or reject the case; so also is counsel’s ability (or inability) to trust the claimant. It should also provide for sufficient information to launch a competent investigation and begin formulating the parameters of a potential lawsuit. It is up to counsel to steer the first meeting in the proper direction; the basic goal is to elicit the essential facts and then to explore the possible courses of action. The principle of client trust and confidence applies equally to plaintiff and defense counsel. Unless prospective clients feel that they can trust a counsel, they will be reluctant to reveal their full story particularly the unfavorable details. To encourage candor, the counsel should advise the prospective client that his or her consultations with such counsel are privileged communications. Disclosure to the adversaries cannot be compelled even if the counsel is not ultimately retained to handle the matter. [Sullivan v. Super.Ct. (1972)].

Attorney and client stand in a fiduciary (confidential) relationship. As such, business transactions between them are subject to a statutory presumption of attorney undue influence. In a lawsuit by the client seeking to avoid the transaction (or in a state bar disciplinary proceeding against the attorney), the attorney thushas the burden of proving the deal was fair and just and the client was fully advised. [Beery v. State Bar (1987) 43 C3d 802, 812–813, 239 CR 121, 126]. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

Ordinarily, an employee’s rights against his or her employer for on-the-job injuries lie solely under the workers’ compensation law—i.e., when the “conditions of compensation” are present, the employer is immune from civil damages liability because workers’ compensation is the injured employee’s “exclusive remedy. Workers’ compensation is basically a “no fault” system of redress for work-related injuries—i.e., benefits are paid to injured employees without proof of employer liability. The statutory scheme is intended to provide a “quick, simple and readily accessible method of claiming and receiving compensation.” [Marsh & McLennan v. Super.Ct. (Silvestri)]. Although the “conditions of compensation” apply, the claim may nonetheless be remediable in an action at law if it falls within one of the few recognized exceptions to the workers’ comp “exclusive remedy” rule. Some of these are statutory exceptions explicitly preserving common law tort remedies; others involve claims that simply fall outside the workers’ compensation law. For instance, employers may be sued for damages if they failed to “secure the payment of compensation.

A particularly liberal approach to the “employment relationship” issue is taken in the workers’ compensation context, for purposes of determining whether an injured worker is an “employee” (rather than an “independent contractor”) entitled to workers’ comp benefits. Broadly, courts are supposed to consider not only who had the right to control the details of the work performed, but also the liberal remedial purposes of the workers’ comp law. Moreover, In a workers’ comp proceeding, the employee has the burden of proving the injury was sustained in the course of his or her employment. However, an employment-related injury is presumed to result from the employer’s negligence, thereby shifting the burden of proof to the employer to prove lack of negligence in order to avoid liability. Here again, as in a workers’ comp proceeding, the employer is stripped of comparative negligence, assumption of the risk, and c-employee negligence defenses. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

 

Generally, it would not be included if you can prove that the same kind of bonus will not be received again in the future. You would have to provide sufficient proof to support your assertion that it is indeed a one-time bonus and will not likely be continued. The usual calculation for child support is taken from a sample for a duration that would be representative of the supporting parent’s income, such as the average income for 12 months.

To read more, click here.

Modification of child and/or spousal support may be filed when there is a significant change of circumstances such as unemployment of one of the former spouses. It is up to the trial court to determine whether the change in your situation is enough to increase support.

The court, of course, does not arbitrarily assign a certain amount for support. Spousal support modification is determined on a case-to-case basis as per the supporting spouse’s ability to pay and the supported spouse’s needs. They also make their decisions on child support modification based on the statewide child support guideline.

To read more, click here.

The consumer expectation test is not appropriate to measure a design defect in prescription drugs. “While the ‘ordinary consumer’ may have a reasonable expectation that a product such as a machine he purchases will operate safely when used as intended, a patient’s expectations regarding the effects of such a drug are those related to him by his physician, to whom the manufacturer directs the warnings regarding the drug’s properties. The manufacturer cannot be held liable if it has provided appropriate warnings and the doctor fails in his duty to transmit these warnings to the patient or if the patient relies on inaccurate information from others regarding side effects of the drug.” [Brown v. Super.Ct. (Abbott Laboratories). For instance, under a negligence theory, a prescription drug manufacturer's duty to provide adequate warnings may extend to patients whose physicians foreseeably rely upon the manufacturer's product information and warnings when prescribing a generic equivalent.[Conte v. Wyeth, Inc. (2008) 168 CA4th 89, 98–102, 85 CR3d 299, 308–311 & fn. 5]

However, a patient’s death or deterioration of an existing condition may be the result of concurrent causes: the existing illness or condition and alleged medical malpractice (e.g., physician’s failure to properly diagnose or treat the condition). The malpractice is not actionable unless it—and not the existing condition—was the probable cause (greater-than–50% likelihood) of the injury or death. In one case, it was held that the physician not liable for malpractice in failing to test fetus for Down’s Syndrome since test only 20% reliable (no probability result would have been different had condition been detected)] [See Simmons v. West Covina Med. Clinic (1989)]. Thus, in a wrongful death action based upon a physician’s negligence in failing to timely diagnose a medical condition which ultimately proved terminal, plaintiff cannot prevail unless the physician’s negligence was the probable cause of death. If the decedent’s chance of survival immediately prior to defendant’s negligence was only 50% (or less), it is mathematically not probable that the physician caused the death. Although the negligence may have further decreased decedent’s chance of survival, such a “lost chance” is not itself actionable. Another case held that a chemotherapy overdose that decreased patient’s chance of recovery from 91% to 80% not actionable Duarte v. Zachariah, supra, 22 CA4th at 1657–1658, 28 CR2d at 91]. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

A hospital’s professional duty is “primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. Thus if an unsafe condition of the hospital’s premises causes injury to a patient, as a result of the hospital’s negligence, there is a breach of the hospital’s duty qua hospital.” [Murillo v. Good Samaritan Hosp. of Anaheim (1979) 99 CA3d 50, 56–57, 160 CR 33, 37]. In one case, it was held that an unattended patient injured in fall from x-ray table stated “professional negligence” claim subject to MICRA limitations period Bellamy v. Super.Ct. (Central Valley Gen. Hosp.) (1996).

A claimant is entitled to recover the reasonable value of all medical expenses that have been incurred, and that are reasonably certain to be incurred in the future, as a result of the injury. [Howell v. Hamilton Meats & Provisions, Inc].However, “reasonable” compensation for medical expenses may not exceed the amount actually paid or incurred whether by plaintiff directly or by private insurance, Medi–Cal, plaintiff’s employer or any “collateral source”. Also keep in mind that the “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof. Thus, counsel evaluating damages should always determine the best evidence available to substantiate plaintiff’s assertions; and acquire that evidence while it is fresh. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

 

A sexual battery claim is subject to if the sexual act was directly related to the manner in which professional health care services were rendered—e.g., fondling a patient’s genitalia during a gynecological exam.  The tort of “sexual battery,” is  predicated on an intent to cause a “sexually offensive contact”  Though probably not necessary  because the proscribed act is clearly an “intentional tort” the statute also expressly provides that the perpetrator “is liable” to the victim for punitive damages. “Malice” for punitive damages purposes means “conduct which is intended by the defendant to cause injury to the plaintiff OR despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” For this purpose, plaintiff need not prove “evil intent” or “sinister motive.” Rather, plaintiff need only establish by clear and convincing evidence that defendant intended the consequences which were substantially certain to occur from his or her wrongful conduct. In sexual harassment, assault, battery, or “medical malpractice” suits based on improper sexual contact, defendants may be inclined to seek discovery of plaintiff’s entire sexual history. But plaintiffs do not implicitly waive their privacy interests in past sexual practices simply by filing suit. Absent an explicit showing why probing into this area is directly relevant to plaintiff’s claim and essential to its “fair resolution,” such discovery is off limits. [Vinson v. Super.Ct. (Peralta Comm. College Dist.)]. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

 

In the present case, a personal injury claim on the ground of negligence may be filed subject to the general rule that the burden of proof of negligence lies on the plaintiff. However, where an accident is of such a nature that, in light of past experience, it probably was the result of someone’s negligence and defendant is probably the one responsible, the law may permit the trier of fact to draw an inference of defendant’s negligence. This is the doctrine of “res ipsa loquitur.” It is an evidentiary rule. In California, the doctrine is defined as a presumption affecting the burden of producing evidence provided three preliminary fact conditions are met, defendant is presumed to have been negligent and the burden shifts to defendant to produce evidence either that he or she was not negligent or that any negligence on his or her part was not a proximate cause of the occurrence. Plaintiffs seeking to invoke res ipsa loquitur have the burden of establishing the following three conditions: That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and that the accident was not due to any voluntary action or contribution on plaintiff’s part. [Newing v. Cheatham (1975) 15 C3d 351]. The existence of these conditions is usually a question of fact for the jury. “Where reasonable persons may differ as to the balance of probabilities, the court must leave the question to the jury.” [Blackwell v. Hurst (1996) 46].

Whether to pursue a claim and the manner in which a particular claim should be pursued with respect to settlement depends in substantial part on the value of the claim. “Value” is, to a large extent, a reflection of the damages incurred. Thus, every claim must be analyzed from the outset for its damages components; and for the “odds” on the extent of recoverable damages.  The time when an accurate evaluation of damages can be made always varies with the nature of the case.  However, usually a general evaluation can be made at the initial client interview, from claimant’s account of injuries sustained, review of medical expenses incurred to date, etc. Thereafter, the task is one of refining the evaluation through fact gathering and analysis of the applicable law. At the very least, a person who has suffered injury through the fault of another is entitled to “be made whole”—i.e., to be restored insofar as is possible to his or her pre-injury condition through a “compensatory” damages award. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury case.

To read more, click here.

 

The time when an accurate evaluation of damages can be made always varies with the nature of the case. (i.e. short-term injuries are more readily evaluated for damage purposes than disabling injuries.) However, usually a general evaluation can be made at the initial client interview (from claimant’s account of injuries sustained, review of medical expenses incurred to date, etc.); thereafter, the task is one of refining the evaluation … through fact gathering and analysis of the applicable law. The initial damage evaluation should never be the last. Injuries which

appear to be minor often develop into a major physical detriment with long-term effect; in such event, the value of the claim will be much greater than that determined from the initial evaluation. Accordingly, in each case, the damage evaluation should be ongoing; reevaluation will usually be needed on a quarterly, or similar periodic basis. Also keep in mind that the “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof.  When evaluating plaintiff’s claim, the adverse party’s insurance representative, his or her attorney, and ultimately the judge or jury tend to give great weight to medical bills incurred. Hence, the full value of the claim which is economic damages, plus consequent pain and suffering and other general damages may be realized only if the client continues to receive necessary medical attention while the symptoms persist or until a competent physician advises that further care and treatment would be of no real benefit.

All insurance companies owe their insureds an implied duty of good faith and fair dealing. Should the carrier fail to honor its implied contractual obligations e.g., unreasonable refusal to pay medical benefits under the terms of the policy; unreasonable refusal to defend; delay in negotiating reasonable settlement “without proper cause”, the insured may have an independent “breach of implied covenant” cause of action against the carrier for emotional distress and other consequential damages and, in an appropriate case, even punitive damages.

Documentation of injuries is essential to recovery of damages; and procrastination in seeking necessary medical treatment can reduce the value of the claim. The items bearing on damages sustained are medical and hospital reports, medical bills, repair estimates or bills, documentation of lost earnings to date (e.g., statement from employer), documentation of all other “out of pocket” expenses incurred (e.g., car rental costs, towing charges, photographer’s costs, etc.). It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

Various expenses traditionally associated with litigation such as filing and service fees, deposition costs, jury and witness fees, fees for hiring experts, etc.) are essential to effective prosecution of the claim.  In many cases, the client cannot afford to pay court costs and expenses as they are incurred. Counsel can agree but is not required to advance expenses on behalf of the client. In such event, of course, the attorney has a right to repayment only if the client prevails in the action by judgment or settlement as specified in the agreement. An attorney willing to accept only contingent repayment of costs advanced on the client’s behalf concededly may have to charge a higher fee than one who requires the client to pay all costs as incurred. Nonetheless, in professional negligence actions against health care providers, the MICRA fee limits effectively restrict what lawyers can pass off as higher fees under the auspices of reimbursable costs.

Claimant is entitled to recover the reasonable value of all medical expenses that have been incurred, and that are reasonably certain to be incurred in the future, as a result of the injury. [Howell v. Hamilton Meats & Provisions, Inc. (2011). To recover for past (already-incurred) medical expenses, claimant must prove the following: the amount of each claimed expense; that each of the charges was reasonable; that each of the services or supplies for which medical expenses are claimed was actually given and was reasonably necessary to diagnose or treat the injuries; and that the condition that necessitated each medical-related expense was a proximate legal result of the injury caused by defendant. Plaintiff is entitled to recover the “reasonable cost” of past medical care necessitated by defendant’s tortious conduct. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

In order to come within the category of agreements affected with a “public interest,” the transaction must concern a business of a type generally thought suitable for public regulation, involving the performance of a service of great importance to the public; and the exculpatory agreement must basically have been a contract of adhesion. [Tunkl v. Regents of Univ. of Calif.,supra, 60 C2d at 98–101, 32 CR at 36–38]. In practice, activities affecting the “public interest” are generally confined to essential ser- vices of “practical necessity” to the general public … such as hospitalizations, escrow and banking transactions, and common carrier transportation. Subject to certain exceptions (below), a public entity must provide a defense for and indemnify an employee sued on account of the employee’s act or omission occurring in the scope of employment. The employee bears the burden of establishing that the act or omission was within the scope of employment. The test is the same as when a third party seeks to hold the employer liable under the doctrine of respondeat superior. Moreover, unwarranted litigation tactics may themselves give rise to tort claims (e.g., malicious prosecution, abuse of process, defamation, infliction of emotional distress, invasion of privacy). However, a trio of important privileges provides a shield against liability for a broad range of potential “litigation torts”—the statutory “litigation privilege” (CC § 47(b)) and the judicially-created doctrines of “judicial” and “quasi-judicial” immunity.  It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

Your daughter can file for a request for move away in court. In order to be granted an out-of-state move-away, the moving parent (your daughter) must prove to the court that the move is for the child’s best interest.  If the court agrees and determines that it is indeed best for the child to move, then the request will be granted even if the father does not consent.

However, keep in mind that the father may contest this request. It is best to consult with an attorney who is an expert in family law to know the specific steps you may need to take.

To read more, click here.

If the parents are not married, a man may sign as the father in the child’s birth certificate once they sign a Declaration of Paternity. This declaration should be signed by both the mother and the father.

Another way is for them to sign the form later; or they can legally establish paternity through the courts and pay a fee to amend the birth certificate.

To read more, click here.

If you are married to the child’s father, you just need to present the marriage certificate and apply for an amendment to the name on your government-issued IDs such as DMV or Social Security.

If you are not married, you can still choose to use a hyphenated last name when signing your name, and it will be accepted as your legal name through usage. However, certain government agencies or businesses may require a name change that has been approved by the court. That’s why it may be best to get a court order for the intended name change.

To read more, click here.

You don’t necessarily have to have different lawyers, but it is really advisable to consult with at least one attorney who is an expert in family law. Especially, if for example your child will be adopted by a step parent; or if the child will be adopted through independent adoption such as by a close relative or anybody with whom you have personal relationship or direct contact.

Your attorney would be able to answer more specific questions and give professional advice and help you through the adoption process.

For more information, click here.

A bankruptcy “discharge” renders certain general unsecured debts permanently unenforceable against the debtor, enabling the debtor to receive a “fresh start.” I.e., the debtor is released from personal liability for discharged debts, and creditors are prohibited from taking any action against the debtor to collect them. The types of debts most often discharged include credit card debts, medical debts, commercial contract debts, and certain claims for breach of contract or negligence. Indeed, many debtors’ primary purpose in filing for bankruptcy is to obtain a discharge of debts. However, there are limitations: Only individuals are eligible for a discharge in Chapter 7 and 13 bankruptcy cases. Corporations and partnerships are eligible to receive a discharge in Chapter 11 cases under certain circumstances but cannot receive a discharge in Chapter 7 or 13. Once the bankruptcy petition is filed, creditors and their counsel should “map out” an overall strategy for the case. The strategy will depend upon the creditor’s status  oversecured/secured/unsecured) and the particular Chapter under which the case was filed. In Chapter 7 cases, secured debts cannot be lienstripped at all; they “ride through” bankruptcy unaffected unless paid in full according to the original terms of the debt. It would be best to seek personal assistance from a lawyer in order to guide you with your bankruptcy case.

To read more, click here.

When evaluating plaintiff’s claim, the adverse party’s insurance representative, his or her attorney, and ultimately the judge or jury tend to give great weight to medical bills incurred. Hence, the full value of the claim (economic damages, plus consequent pain and suffering and other general damages) may be realized only if the client continues to receive necessary medical attention while the symptoms persist (or until a competent physician advises that further care and treatment would be of no real benefit. Before meaningful settlement discussions can get under way, the claim must be assigned a reasonable settlement value. For this purpose, claimant will need to know whether the tortfeasors have applicable insurance coverage and, if so, what the policy limits are, whether there are excess and/or umbrella coverages, and whether the insureds and/or carriers claim the policy does not apply. Also important may be whether the carrier will be defending on a reservation of rights basis and, if so, whether this generates a conflict of interest problem so as to require “Cumis (independent) counsel” for the insured defendant pursuant to CC § 2860.)

No matter how severe the injury, top settlement value is necessarily limited by the financial resources available to  satisfy the claim. Thus, the policy limits and defendant’s personal assets must be taken into account in determining what the case can settle for.  Various options are available to the parties where good faith negotiating efforts fail to bring about a reasonable settlement; or, where one of several potential joint tortfeasors refuses to contribute to a reasonable settlement package agreed to by the others. An early “policy limits demand” letter to defense insurance carriers is a popular plaintiffs’ tactic to speed along the settlement process. The demand letter recaps the liability case against the insured and itemizes plaintiff’s consequential damages to date (itemized wage losses, medical expenses, etc.). It typically requests a “policy limits” settlement, “reminding” the insurer of its “excess liability” exposure to its insured in the event the case does not settle and a judgment beyond policy limits is entered against the insured defendant. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury case.

To read more, click here.

 

Unless and until a lawsuit is filed, insurers may not divulge policy limits without the insured’s consent. In one case, it was held that absent appropriate authorization from the insured, insurance carriers are statutorily barred from disclosing “policy limits” and other coverage information to third party claimants before a lawsuit is filed. [Ins.C. § 791.13; Griffith v. State Farm Mut. Auto. Ins. Co. (1991) 230 CA3d 59, 69–70, 281 CR 165, 170–171]. However, insurers can usually be persuaded to obtain the insured’s consent to furnish this information. From a defense  perspective, withholding policy limits information may be counterproductive. Plaintiffs can always obtain this information by filing suit and conducting discovery. Forcing a plaintiff to litigate in order to obtain pertinent coverage information may serve only to drive up legal costs and inhibit productive negotiations. [See Boicourt v. Amex Assur. Co. (2000) 78 CA4th 1390, 1392–1399, 93 CR2d 763, 765–769] Indeed, an insurer’s refusal to contact its insured or disclose policy limits creates a conflict between the insurer (who is trying to induce a low settlement) and the insured (who wants a settlement within policy limits) … with the possible result of “bad faith” liability for any ensuing judgment that exceeds policy limits. [Boicourt v. Amex Assur. Co., supra, 78 CA4th at 1392, 93 CR2d at 764 —“a liability insurer ‘is playing with fire’ when it refuses to disclose policy limits”].

Apart from information about insurance coverage, plaintiff’s counsel ordinarily cannot obtain pretrial discovery of a defendant’s financial condition. Except in punitive damages cases, the right of privacy normally protects this information. Thus, in most cases, plaintiff’s counsel’s investigation of a defendant’s financial status necessarily must stop short with obtaining insurance coverage information. Where there is a possibility of “excess liability” (beyond policy limits) or where a likely defendant is uninsured, it simply may not be possible to get an accurate picture of “financial worthiness.” It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury case.

To read more, click here.

As a general rule, expert opinion is required whenever proof of an element of the case or defense calls for determination of an issue outside the common experience of the trier of fact. [Ev.C. § 801; Miller v. Los Angeles County Flood Control Dist. (1973) 8 C3d 689, 702, 106 CR 1, 9–10].  Similarly, recent years have evidenced the innovative use of experts in many auto accident cases. Notably, accident reconstructionists may be invaluable in establishing which party was at fault by, e.g., examining the accident site and/or viewing pictures of the damaged vehicles, skid marks, etc. Videotaped accident reconstructions are admissible evidence provided a proper foundation is laid demonstrating similarity of conditions between the reconstruction and actual occurrence. [DiRosario v. Havens (1987) 196 CA3d 1224, 1231–1233, 242 CR 423, 426–427]. Some practitioners hire “stunt artists” to recreate automobile collisions and thereby prove that an otherwise “obvious” defendant was not really at fault. Similarly, advances in computer technology have facilitated the use of computers to recreate accidents and scientifically determine how they occurred, as well as to depict graphically the causal events. Computer scientists are thus highly desirable experts in much personal injury litigation. Again, in a given case, the facts might point to an apparently “inevitable” conclusion; but experts specially trained in analyzing such facts might well come to an altogether different and highly persuasive opinion.

Despite strong theories of recovery against clearly viable and financially worthy defendants, counsel’s ability to make effective use of experts and demonstrative evidence can often “make or break” the case for their clients. Indeed, the effective use of demonstrative evidence is often dependent on the effective use of experts. For this reason, counsel for both sides must address the need to hire experts—in both a consulting and witness capacity—at the inception of the case. It would be best to seek personal assistance from a lawyer to help with your personal injury case.

To read more, click here.

My cousin was struck by a car in a shopping mall parking lot in California. He is legally blind (almost no sight) and was carrying his white cane. The parking lot is usually busy with lots of people walking to and from their cars and crossing to the stores from the street. At about noon on a clear day, he was crossing the parking lot to the sidewalk when a driver backed out of a parking space. It appears from the diagram in the police report that he was in plain sight of the driver. According to the police report the driver told the officer that she “was backing when she heard something hit the driver’s side of her vehicle. She looked and saw my cousin had walked into the side of her vehicle . . .” The driver claims that my cousin walked into her car but the police report says she was not looking in his direction when he came in contact with the car, so I don’t see how it is possible that she knows whether he walked into her car or her car ran into him. Based on her statement that he walked into her car and his position on the ground the police said the accident was primarily my cousin’s fault, the unsafe backing of the driver was just a secondary factor. My cousin was knocked to the ground and broke his hip. He was taken to the hospital wherein he spent 4 days in the ICU. His medical bills from the hospital are more than $240,000 and he has been in physical therapy for 3 months. He has a permanent limp now. California has a “white cane” law that says basically that a blind person with a cane always has the right of way. However, since this happened in a parking lot I’ve been told this law doesn’t apply. Do you think the officer is right in his assessment? And does the white cane law apply in private parking lots? Violation is a misdemeanor, and I know that some misdemeanor laws apply in private lots, like DUI.

Question Asked on: November 2nd, 2013

Motor vehicle operators are subject to the general duty of due care as “everyone is responsible … for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person”, and thus can be liable for injuries caused by the failure to exercise reasonable care in operation of the vehicle under the circumstances. In one case it was held that the driver who parked his tractor-trailer rig alongside interstate highway to eat snack despite “emergency parking only” sign could be liable for wrongful death of negligent pickup driver who swerved off highway and rear-ended rig (rejecting court of appeal conclusion that rig driver owed no duty to avoid collision between rig and negligent driver) [Cabral v. Ralphs Grocery Co. (2011) 51]].  like other statutes pertaining to motorists, refers to “operators” rather than “drivers.” Vehicle “operation” is a broader concept and encompasses various acts fairly regarded as a necessary incident to driving, such as stopping, parking and exiting the vehicle. Moreover, businesses, such as shopping centers, restaurants and bars, have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control (e.g., parking lots), against reasonably foreseeable criminal acts of third parties. [Delgado v. Trax Bar & Grill].

Normally, information about medical conditions entirely different from the injury sued upon are beyond the scope of discovery (not “relevant to the subject matter”). However, medical records pertaining to an unrelated condition are discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. [Ev.C. § 999; Slagle v. Super.Ct. (Maryon) (1989) 211 CA3d 1309, 1314–1315, 260 CR 122, 125—P’s history of eye treatment discoverable since relevant to cause of auto accident. It would be best to seek personal assistance from a lawyer in order to guide you with the personal injury case.

To read more, click here.

 

The debtor’s goal in filing bankruptcy—i.e., liquidating assets, consolidating debts, or reorganizing its business and property and proposing a repayment plan—affects the choice of Chapter under which to file. Chapter 13, known as the individual “wage earner” Chapter, allows for a court-supervised repayment plan. Only individual debtors with regular income are eligible for Chapter 13, subject to maximum debt limitations. A Chapter 13 provides for the payment of ongoing obligations directly by the debtor, and the repayment over time of past-due obligations through a third party trustee. Thus, a Chapter 13 may be especially appropriate for sole proprietors with a small business and for employees earning a regular salary, who want to and are able to pay their debts but simply need time. The U.S. Judicial Conference has established Official Forms for bankruptcy cases. [FRBP 9009] These forms are mandatory but may be altered “as may be appropriate,” and may be combined and their contents rearranged “to permit economies in their use.” Official Bankruptcy Forms are included in the FRBP and are downloadable from the Internet (www.uscourts.gov/bkforms). Some districts may require additional documents or local forms to be filed with the bankruptcy petition. Be sure to check the court’s Web site before filing the case. It would be best to seek personal assistance from a lawyer in order to help you with the bankruptcy proceedings.

To read more, click here.

Some States have courts wherein a number of cases are scheduled within the same day under the same judge or “stacked,” and they are heard according to the order determined by the judge.

Stacking is another word for ordering. For example, among 10 cases scheduled for the same day, your case is stacked sixth (6th), this means you have to wait until the five other cases are heard and resolved first. The resolution of the cases stacked or heard before yours determines whether or not your case will be heard for that date. One example is in the case of VLAHOS vs. State of Wyoming (2003).

To read more, click here.

Yes, they can be arrested. If the warrant is related to the child support case, the parent who has been issued the warrant will be arrested if they do not appear in court on the time and date scheduled by the court. In child support cases, a warrant may be issued to the other parent if that parent has failed to respond or appear in court regarding the child support case.

A warrant of arrest is issued by the court to a law enforcement agency. This gives the law enforcement agency the power to pick up this person and bring this person to court. This person needs to find a lawyer as soon as possible; one who could represent them and ensure their rights are protected.

For more information, click here.

There are many issues that need to be addressed during separation such as spousal and child support and custody.

Considering your financial capacity for the last 5 years, you may negotiate to include in the agreement with your wife to provide support for you. Without such stipulation in writing and included in the separation agreement, you may not have any right to support for the duration of your separation.

You must work with an experience lawyer to ensure that your rights are protected.

To read more on Family Law, click here.

In California, if you were the one who ultimately broke off the engagement, then she had the right to keep the ring. However, she returned it to you voluntarily. Unless she can prove that you were at fault for the broken engagement, it may be very hard for her to get it back.

As for the wedding dress, it depends on your agreement prior to the purchase of the dress if you agreed to share the expenses. If you did not, then the cost is entirely on your ex and she may not force you to shoulder the other half of the expense.

You may want to consult with an attorney to protect your rights.

To read more on preparations prior to marriage, click here.

It is possible for your fiancé to enter the US on a travel visa, but you will need to show convincing proof that he will not stay in the US after the marriage and intend to return to Japan as you said you plan to. Provide documents like return ticket, certificate of employment, certification from the employer, lease contracts, or other documents to prove your intent. Failing to do so may cause the refusal of entry of your fiancé to the US, even if he has a valid tourist visa.

In the matter concerning changing your name, consult with the immigration laws of Japan. But it is generally required that you change the name on your passport first because most visa processing requires that the name submitted in the application matches the name on the passport and other supporting documents. Changing your name by reason of marriage is a fairly simple process: if you have had your passport in less than 12 months, you may be issued a new passport with your new name by simply presenting your marriage certificate and your old passport, or if more than 12 months, you will need to follow the standard passport renewal procedures.

For more information, click here.

There is no legal-dictionary-definition of the word, but in child custody and visitation cases, it is usually stated in the judgment what kind of “contact” or visitation a parent could have with the child, when, and where, and always in the presence of a neutral third person. The court takes into consideration the child’s welfare and ensure that they are not exposed to any danger during the visit from the parent who has been granted supervised visitation.

Section 3100 of the California Family Code says:

(c) If visitation is ordered in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the visitation order shall specify the time, day, place, and manner of transfer of the child, so as to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members. If a criminal protective order has been issued pursuant to Section 136.2 of the Penal Code, the visitation order shall make reference to, and acknowledge the precedence of enforcement of, any appropriate criminal protective order.

(Emphasis added)

To read more on custody and visitation, click here.

Can I sell items that are not under lien?

Question Asked on: October 24th, 2013

Selling some of the debtor’s property is another way to raise money to pay creditors. A voluntary sale outside bankruptcy court may yield higher proceeds and pay off more debt. A bankruptcy filing may allow the debtor in  possession (Chapter 11 or 13) or trustee (Chapter 7) to sell nonexempt property in a more orderly fashion and at a higher price than by execution or foreclosure sale. In practice, debtors rarely have significant unencumbered assets. As a result, the § 363(e) limitations almost always apply to the debtor’s use, sale or lease of estate property, making court approval mandatory. It would be best to seek personal assistance from a lawyer in order to help you with your bankruptcy case.

To read more, click here.

Is there a bankruptcy option for medical bills only?

Question Asked on: October 24th, 2013

A bankruptcy “discharge” renders certain general unsecured debts permanently unenforceable against the debtor, enabling the debtor to receive a “fresh start.” I.e., the debtor is released from personal liability for discharged debts, and creditors are prohibited from taking any action against the debtor to collect them. The types of debts most often discharged include credit card debts, medical debts, commercial contract debts, and certain claims for breach of contract or negligence. Indeed, many debtors’ primary purpose in filing for bankruptcy is to obtain a discharge of debts. It would be best to seek personal assistance from a lawyer in order to guide you with bankruptcy proceedings.

To read more, click here.

The California Government Act abolishes all public entity common law tort liability. State public entities may be liable for personal injury and wrongful death only if a statute expressly so authorizes. Although several sectionsof the Act provide for government entity liability under specified conditions, many sections also grant public entities and/or their employees broad immunity from liability. And, in any event, any liability authorized by the Act is subject to ordinary common law defenses, such as comparative negligence and assumption of the risk. There are exclusive conditions under which a public entity may be held directly liable for injuries caused by a “dangerous condition” of public property, which are as follows: The condition must be one that creates a substantial risk of injury when the property or adjacent property is used with due care in a reasonably foreseeable manner; The condition must have existed at the time of the injury; The injury must have been “proximately caused” by the condition; The condition must have created a “reasonably foreseeable” risk of the kind of injury suffered; and Either (a) the condition must have been created by a negligent or wrongful act or omission of an employee within the scope of his or her public employment, or (b) the entity must have had “actual or constructive notice” of the condition (see Gov.C. § 835.2, ¶ 2:2815.2 ff.) sufficiently before the injury to have taken measures to protect against the risk involved (either by repairing the condition. : Ordinarily, these are fact questions. However, courts may conclude as a matter of law that a condition is not dangerous if no reasonable person would consider it posed a substantial risk of injury when the property is used with due care in a reasonably foreseeable manner. [Gov.C. § 830.2; see Bonanno v. Central Contra Costa Transit Auth. (2003) 30 C4th 139, 148, 132 CR2d 341, 346; Zelig v. County of Los Angeles, supra, 27 C4th at 1133, 119 CR2d at 726]. It would be best to seek personal assistance from a lawyer in order to help you in filing a personal injury claim.

To read more, click here.

Providers of contaminated or “adulterated” food may be liable on product liability and breach of warranty theories if the injury-causing substance is foreign to the food (e.g., bits of glass or wire). In such event, the trier of fact must determine whether the foreign substance (a) could be reasonably expected by the average consumer and (b) rendered the food defective or “unfit” for human consumption. [Mexicali Rose v. Super.Ct. (Clark) (1992) 1 C4th 617, 631,633, 4 CR2d 145, 154, 156]. Except in those few cases where the threshold issue is whether a “product” was involved, plaintiff’s first task in a strict product liability action is to establish that the injury-producing object or instrumentality was legally defective. For this purpose, a product may be “defective” because of a manufacturing defect, a design defect, or a warning defect. California follows a “stream of commerce” approach, extending strict liability to those who are an “integral part of the overall producing and marketing enterprise that should bear the cost of injuries from defective products.” Thus, the strict product liability doctrine covers a broad range of potential defendants beyond the obvious manufacturer (subject, of course, to proof of defendant’s causal connection to the product defect. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

As a general rule, the burden of proving negligence liability in slip and fall cases rests on the plaintiff.  No inference of negligence can arise simply upon proof of a fall on the defendant’s floor. This is so even when the fall is associated with a slippery object, “because objects all too often appear on floors without sufficient explanation.” [Brown v. Poway Unified School Dist., supra, 4 C4th at 826–828, 15 CR2d at 683–684—“one would have to enter the field of conjecture to determine how lunch meat came to be underneath (plaintiff's) foot” (parentheses added); Oldenburg v. Sears, Roebuck & Co. (1957) 152 CA2d 733, 741, 314 P2d 33, 36]. However, in one case, the Court ruled that  the  res ipsa loquitor doctrine wherein there is a presumption of defendant’s negligence a  might apply where the object was left on the floor long enough so that the defendant “should have discovered and removed it.” [Brown v. Poway Unified School Dist., supra, 4 C4th at 826, 15 CR2d at 683].

Settlement is one of the client’s “substantial rights” that the lawyer may not unilaterally impair (¶ 1:188 ff.). The client has the absolute right to reject or approve a settlement; and, therefore, the client’s express authority is required to settle and compromise a claim. Settlement offers a far speedier method of resolving civil cases than a fullblown trial. Indeed, proceeding to trial also carries the risk of appeal, which could keep the claim “in limbo” long after the rendition of judgment. Quite apart from all the time required for investigation, discovery and preparation, the average bodily injury case takes at least a week to try. Few lawyers could competently handle a large volume of cases if each were to go to trial. Settlement of most claims is therefore essential to efficient practice in this field. It would be best to seek personal assistance from a lawyer in order to help you in the settlement of your personal injury case.

To read more, click here.

If the injured party is a minor (under age 18) and not emancipated (Fam.C. § 7000 et seq.), or is mentally incompetent (unable to comprehend attorney’s advice or to appreciate nature of the litigation), the claim must be prosecuted through a guardian, guardian ad litem or conservator of the estate, as the case may be. [Fam.C. § 6601; CCP §§ 372– 373; see ¶ 5:214 ff.]. However, the cause of action belongs to the injured minor or incompetent for detriment that party suffered; recoverable damages are simply awarded to the named representative (guardian, etc.)on the minor’s or incompetent’s behalf.

A legal malpractice action may be filed. A legal malpractice is not an action for “personal injury, property damage, or wrongful death.”. In an ordinary legal malpractice case, the negligent attorney is liable for damages the client was not able to recover from a prior tortfeasor (medical malpractice defendant under these facts).  Also, expert testimony is not required in a legal malpractice action where the attorney’s failure of performance “is so clear that a trier of fact may find professional negligence unassisted by expert testimony” or, stated another way, where the attorney’s negligence “is readily apparent from the facts of the case.” [Goebel v. Lauderdale (1989) 214 CA3d 1502, 1508, 263 CR 275, 278; Stanley v. Richmond (1995) 35 CA4th 1070, 1093, 41 CR2d 768, 781;  [Brandon G. v. Gray (2003) 111 CA4th 29, 39–40, 3 CR3d 330, 337–338;].While other attorney-client disputes may properly be the subject of an arbitration provision (above), the scope of coverage must be clear and unambiguous. As the one who drafted the agreement, the attorney is chargeable with the consequences of ambiguities therein. Any uncertainty will be resolved against the attorney (CC § 1654). [Mayhew v. Benninghoff (1997) 53 CA4th 1365, 1370, 62 CR2d 27, 30; Lawrence v. Walzer & Gabrielson (1989) 207 CA3d 1501, 1506–1507, 256 CR 6, 9—provision requiring arbitration of disputes “regarding fees, costs, or any other aspect of our attorney-client relationship” applied only to fee disputes and did not cover legal malpractice claim. It would be best to seek personal assistance from a lawyer in order to help you with your personal injury claim.

Ordinarily, an employee’s rights against his or her employer for on-the-job injuries lie solely under the workers’ compensation law—i.e., when the “conditions of compensation” are present (Lab.C. § 3600), the employer is immune from civil damages liability because workers’ compensation is the injured employee’s “exclusive remedy.” [Lab.C. §§ 3600, 3601, 3602(a)]. Workers’ compensation is basically a “no fault” system of redress for work-related injuries—i.e., benefits are paid to injured employees without proof of employer liability. The statutory scheme is intended to provide a “quick, simple and readily accessible method of claiming and receiving compensation.” [Marsh & McLennan v. Super.Ct. (Silvestri) (1989) 49 C3d 1, 6, 259 CR 733, 734–735; see Claxton v. Waters (2004) 34 C4th 367, 373, 18 CR3d 246, 249–250]. However, the workers’ comp exclusive remedy bar is confined to employee claims predicated on physical or disabling emotional injury. Thus, an action at law is permitted for lost wages, commissions, retirement benefits, injury to reputation and other purely “economic losses.” [Piscitelli v. Friedenberg (2001) 87 CA4th 953, 986–988, 105 CR2d 88, 111–113—employee can pursue civil suit against employer for fraud; Davaris v. Cubaleski (1993) 12 CA4th 1583, 16 CR2d 330].

To read more, click here.

 

Landowners and possessors of land owe a nondelegable duty to put and maintain the premises (including its buildings and structures) in reasonably safe condition. They are liable for an independent contractor’s negligence in performing that job “irrespective of whether the contractor’s negligence lies in his incompetence, carelessness, inattention or delay.” [Brown v. George Pepperdine Found. (1943) 23 C2d 256, 259–260, 143 P2d 929, 930]. Mass-producers of residential homes and lessors in the business of renting residential units are exposed to strict liability for defects in an integral part of the building structure (e.g., defective shower door, defective heating system; see ¶ 2:1427, 2:1445). But the overall complex (the entire premises) wherein the housing is constructed is not itself a “product.” Thus, a claim for injuries resulting from an alleged defect in the overall complex must be treated as a premises liability claim, turning on negligence—not strict product liability—law. [Brooks v. Eugene Burger Management Corp.(1989) 215 CA3d 1611, 1624, 264 CR 756, 763].It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

 

Clearly, the person who sustained personal injury as a proximate result of the wrongful act of another can recover compensatory damages on his or her own behalf.  If the injured party is a minor (under age 18  and not emancipated.), or is mentally incompetent (unable to comprehend attorney’s advice or to appreciate nature of the litigation), the claim must be prosecuted through a guardian, guardian ad litem or conservator of the estate, as the case may be.

A minor’s “willful misconduct” causing injury or death to another, or damage to the property of another, “shall be imputed to the parent or guardian having custody and control of the minor” for civil liability purposes. Minors (under age 18) are civilly liable for their own tortious conduct, but certain legal principles apply to measure and limit a minor’s liability. Given the statutory restriction on a punitive recovery and the lower “yardstick” for measuring a child’s breach of duty, plaintiffs injured by a child’s misconduct may be able to “maximize” their recovery if there is also a cognizable claim against the parents. Parental liability may lie under any of the following circumstances: the parent has knowledge of the child’s prior misconduct; the parent signed the child’s driver’s license application or the child drives the parent’s car with permission; the child is guilty of willful misconduct ;the child was given access to firearms; the child defaced another’s property with graffiti; or the child is convicted of a crime and ordered to pay restitution to the victim. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

 

Ordinarily, the most “valuable” element of a bodily injury claim is the right to compensation for all “pain and suffering” plaintiff has sustained, and will endure, as a proximate result of the injury. These are plaintiff’s “general damages,” and may run far in excess of the “special damages” (e.g., earnings loss and medical expenses). Pain and suffering” is a unitary concept, encompassing all the physical discomfort and emotional trauma occasioned by an injury. Plaintiff is entitled to compensatory damages for all physical pain suffered, and also for all resulting “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” An emotional trauma that attends tortiously-inflicted physical injury is compensable in the form of a “pain and suffering” award. Sometimes, however, a tortious act directly causes mental distress without any concurrent physical injury—i.e., plaintiff’s primary injury is emotional distress. The distress may have physical consequences, but the cause of action is not predicated on “physical injury” per se. A cognizable emotional distress cause of action entitles plaintiff to reasonable compensation for any fear, anxiety and other emotional distress suffered and/or to be suffered in the future (plus reasonable compensation for consequential financial loss).

If the emotional distress claim is against plaintiff’s employer for an act during the course and scope of employment, the workers’ comp “exclusive remedy rule” will ordinarily preclude an action at law. Subject to a few exceptions (e.g., employer’s violation of statute), worker emotional distress lawsuits are allowed only if the events giving rise to the claim (a) were not a “normal” part of the employment relationship, or (b) contravened “fundamental public policy.” The fact the employer’s conduct was “egregious” in nature does not itself take the case outside the “exclusive remedyrule. ” [Livitsanos v. Super.Ct.]. It would be best to seek personal assistance from a lawyer in order to help you in filing a personal injury claim.

To read more, click here.

 

Reported appellate decisions can be an excellent source for determining which attorneys to contact. The decisions always contain the names of the lawyers who tried a particular case. If, in reviewing the advance sheets or conducting legal research, you find a recent case involving issues similar to yours, consider contacting the attorneys who tried the case; usually they will gladly identify the experts they used and offer recommendations and opinions regarding those experts. In any event, when consulting with colleagues, don’t limit yourself to attorneys who represented interests similar to yours. Counsel who represented the other side of the issue will usually disclose the experts they confronted in similar cases, and these experts may be the most persuasive.

Accepting employment or continuing representation without sufficient learning and skill is forbidden unless the attorney takes one of the following step: Associates another lawyer reasonably believed to be competent; or professionally consults with another lawyer reasonably believed to be competent (this is limited to cases in which consultation can “fill the gap” in the attorney’s learning or skill); or acquires sufficient learning and skill before performance is required. Moreover, even when hired for a limited purpose, counsel’s duty of competent representation includes an obligation to alert the client to all reasonably apparent legal problems, alternatives and remedies though beyond the scope of retention. “Not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client’s objectives.” [Nichols v. Keller (1993) 15 CA4th 1672,1684–1687, 19 CR2d 601, 608–610].  It would be best to seek personal assistance from a lawyer to guide you with your personal injury case.

To read more, click here.

 

A personal injury case based on negligence may be filed. Ordinarily, the burden of proving gnegligence rests on the plaintiff. However, a presumption of negligence on the part of the defendant may exist, called the doctrine of res ipsa loquitor, provided that the following requisites are present: That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; that the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and ; that the accident was not due to any voluntary action or contribution on plaintiff’s part. The existence of these conditions is usually a question of fact for the jury. “Where reasonable persons may differ as to the balance of probabilities, the court must leave the question to the jury.” [Blackwell v. Hurst (1996) 46 CA4th 939, 944, 54 CR2d 209,. Owners and managers are required to use due care to eliminate dangerous conditions on their property so as not to expose tenants, customers and similar users to unreasonable risks of harm. Therefore, a user's assumption of a risk or hazard on the premises—even one that was known to the user—is “secondary”and comparative negligence principles apply. [See Curties v. Hill Top Developers, Inc. (1993) 14 CA4th 1651, 1656, 18 CR2d 445, 448]. It would be best to seek personal assistance from a lawyer in order to help you in filing a personal injury claim.

To read more, click here.

 In all civil cases, plaintiffs (and cross-complainants) will ordinarily want to know whether defendants (and cross-defendants) have the financial means to satisfy a judgment—primary coverage, as well as possible “excess” and/or umbrella coverage. However, discovery of insurance information also impacts these particularly important aspects of personal injury litigation. Plaintiff’s counsel will need to know early on where the full ability to satisfy a judgment lies. Since plaintiff may not rely on one “deep pocket” or “target” defendant to satisfy the entire judgment, it is important to pursue insurance coverage (including reinsurance, umbrella and excess coverage) information as to each defendant.  If an insurer for claimant or an adverse party is insolvent, there may be recourse against the California Insurance Guarantee Association (CIGA) for “covered claims.” Be aware that a timely claim must be presented to CIGA; and there are monetary limits on the maximum claim payable by CIGA (generally$500,000). Do not be discouraged by a bankrupt, judgment-proof defendant who has insuranc. The  plaintiff may proceed against a discharged debtor solely to recover against the debtor’s insurer. [Forsyth v. Jones (1997) 57 CA4th 776, 780–782, 67 CR2d 357, 359–361]. The discharge will, however, preclude plaintiff from recovering defendant’s deductible on the policy, since that is the insured’s personal liability.

Whether to pursue a claim and the manner in which a particular claim should be pursued with respect to settlement (Ch. 4) depends in substantial part on the value of the claim. “Value” is, to a large extent, a reflection of the damages incurred. Thus, every claim must be analyzed from the outset for its damages components; and for the “odds” on the extent of recoverable damages. Also keep in mind that the “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof. Thus, counsel evaluating damages should always: determine the best evidence available to substantiate plaintiff’s assertions; and acquire that evidence while it is fresh. It would be best to seek personal assistance from a lawyer in order to guide you with your personal injury claim.

To read more, click here.

Generally, name change due to marriage does not require formal court proceedings. It could be as simple as presenting the marriage license to authorities that issue IDs such as the DMV or SSA, or in the case of green card holders, filing a form I-190 at the USCIS in order to get a new ID issued bearing the new married name.

However, if the green card holder is a Conditional Resident due to the marriage, it is advisable to hold off any name change until the conditions have been lifted. If you will change your name, make sure to apply for change of name whenever possible in any of your valid IDs such as driver’s license, or student ID if you are a student, or social security card, etc.

To read more, click here.

Yes, she may apply for an affidavit of support for your husband as long as your sister-in-law is willing. She can either be your husband’s sponsor, or she could be a joint sponsor so that her financial status could be the basis of the affidavit of support.

If a qualifying sponsor does not have an income that is at least 125 percent above the poverty line, another person may be able to become the sponsor or a joint sponsor. Consult with an immigration expert to find out if your sister-in-law would be able to be your husband’s sponsor, or how to go about making her a joint sponsor.

To read more, click here.

In the event that your mother in law would need emergency medical services and she will be unable to pay for it, then the person who executed the affidavit of support will be held responsible because that is the purpose of the said affidavit. The I-134 Affidavit of Support is submitted as an assurance that the visitor-applicant will not be a public charge during their stay in the US. This guarantees that the visitor will not receive public assistance such as food stamps, welfare or any other government-subsidized benefit during their stay in the US, and that the executor or signatory of the affidavit will be the one to provide for the visitor’s need whenever necessary.

The good thing about the I-134 as compared with the I-184 affidavit of support—something executed when sponsoring relatives for a green card—is that is has a validity of the I-134 is much lesser time since a visitor will not be staying long, compared with immigrant applicants.

To read more, click here.

If you are staying in the US illegally, there is still a chance for you to obtain a legal status as long as you leave the US and follow the time ban for re-entry, which could take up to 10 years or more. However, in certain cases, that time ban may be shortened if you can prove that your departure from the US will cause an extreme hardship to your qualifying relatives.

The “601 waiver” may be applicable to certain illegal aliens in order for them to come back to the US sooner than the usual time bar for re-entry to the country. It would be best to consult with an immigration expert before taking further action and in order to find out if you qualify for this waiver so that you can leave the country and then legally apply for a visa. An expert immigration lawyer may be able to provide you with more information and could analyse your case better and suggest other possible options.

To read more, click here.

 If you are either a US citizen or permanent resident, then you may be able to petition for your daughter in-law to come to the US. The process is basically the same as sponsoring your own child, but you need to prove your relationship with the child through documents proving the lawful termination of the previous marriages of the biological and the step parents, such as death certificate or divorce decree, a copy of certificate of civil marriage to the biological father or mother of the step-child and a copy of the birth certificate of the step-child.

You will need to use Form I-130 for this purpose. You will also need to provide proof of your citizenship or permanent residency. Permanent residents must also prove their permanent residence is lawful by submitting either copy of their alien passport with the appropriate stamp indicating permanent residence within the United States or copy of the green card (Form I-551).

To read more, click here (US Citizen) or here (permanent resident).

Traveling outside the US while application for adjustment of status is pending could be seen by the USCIS as an abandonment of the application, unless your wife applied for an advance parole (AP) before going to Mexico. Since she did not, then you will have to start the process of petitioning for her to get a marriage visa using Form I-130.It could take several months for her visa to be processed.

But since you are an American citizen, upon filing Form I-130, then your spouse will be eligible to file an application for K-3 nonimmigrant visa, which will allow her to travel to the U.S.A. to work and live during the time the petition for visa is pending.

To read more, click here.

ICE can issue an immigration detainer to law enforcement agencies to hold for 48 hours a detainee who is an illegal alien. Posting bail for the crime which the illegal alien has been arrested will not prevent law enforcement to hold the alien for 48 hours in honor of the ICE detainer. However, if after 48 hours and ICE has not taken custody of the alien, then the illegal alien must be released and is free to go.

It would be best to work with an expert immigration attorney as soon as possible in order to know what you can do and what are the necessary steps to take in relation to the pending deportation of your fiancé.

To read more, click here.

There are several ways for a person to become a US citizen. Those who have a “birth right” to become US citizens are those who are either born within the US under the principle of jus soli; and those whose either parent is a US citizen or the principle of jus sanguinis. For those who are neither born in US soil or to US citizen parents, they still have a chance to gain US citizenship through the process of naturalization.

An undocumented alien cannot be naturalized as a US citizen because one of the basic requirements for naturalization is that a person has entered the country legally and has gained a lawful residence status (green card).

Generally, those who want to apply for citizenship to the United States of America should be able to comply with requirements related to:

Physical presence, residence and Entry – such as permanent legal residence status and have been present in the US within most of the 5 years prior to the application for naturalization.

 Age – generally at least 18 years of age

Education and Literacy — must be able to speak, read and write basic English

Moral character – must provide proof of good morals and character

Attachment within constitutional principles – must declare commitment to the principles of the US Constitution

Promise Loyalty to the U.S. – must swear allegiance to the US and denounce allegiance to any other country

To read more, click here and here.

Being a non-citizen, and worse, one who has overstayed their visa, you are not supposed to be chosen for jury duty. The Jury Commissioner’s Office chooses candidates for jury duty through voter’s registration or records at the DMV. Fortunately for those chosen for jury duty but have illegal status, the Jury Commissioner’s Office is a county office and is not federal and therefore it does not report to the Department of Homeland Security.

But if have overstayed your visa, it is best to do something as soon as possible before you are faced with major immigration problems and possible deportation. Consult with an experienced immigration lawyer for more information and advice. Before doing so, you may want to prepare the answers to these basic lawyer intake questions so that you will be ready when you meet your immigration attorney for the first time.

If you need help in finding an expert in immigration law, you may follow this link.

To read more, click here.

There are possible options for those who have been illegally staying in the US, but it may require a complex process. Depending on each case, there is a possibility that an illegal alien may qualify for to have their status legalized if they have immediate family in the US who are US citizens. Those who have been brought to the US when they were still young may qualify for permanent residency provided that they meet the requirements. Those who are subject to deportation may still have a chance to stay if they are granted a “Cancellation of Removal.”

For those who have been in the US for a very long time (since 1985 or earlier) they may qualify for an amnesty. Currently there are no amnesty programs for illegal aliens, but there has been an amnesty program for illegal aliens who have been living in the US since 1985. It is best to consult with an expert immigration attorney to discuss the details of your case and to see if you will possibly qualify for that amnesty program.

To read more, click here.

There are some US citizens who marry and have their spouses become naturalized through their marriage to the citizen. However, things may sometimes turn sour for whatever reason, and the principal naturalized spouse would want to “revoke” the citizenship of their spouse because of that. But that is often not possible. Infidelity or irreconcilable differences are not grounds to have a spouse’s citizenship revoked.

However there are indeed some instances, although very rare, when a naturalized citizen’s citizenship may be cancelled or revoked. The following may be grounds for revocation or cancellation of citizenship:

  1. Concealment or Falsification of Facts that are Relevant— not declaring everything in the application and not being truthful regarding answers to interview questions, e.g. facts about criminal history or real identity.
  2. Refusal to Testify In Front of the Congress
  3.  Membership to Subversive Groups – Examples  of subversive group include Al Qaeda and Nazi Party.
  4. Being Dishonorably Discharged from the Military

A natural-born US citizen may not have their citizenship revoked but they may voluntarily renounce their own citizenship.

To read more, click here.

Marriage fraud in order to obtain a green card visa to the US comes with great consequences especially now that it is considered as a threat to national security. According to Immigrations and Customs Enforcement (ICE) Marriage Fraud could be committed in the following manner:

  • A U.S. citizen is paid, or asked to perform a favor, to marry a foreign national;
  • “Mail-order” marriage where either the U.S. citizen or alien knows it is a fraud;
  • Visa lottery fraudulent marriage; and,
  • A foreign national defrauds a U.S. citizen who believes the marriage is legitimate.

If you believe that you have been a victim of fraud, it is better to bring the matter to the attention of ICE. But before doing so, and for better understanding and guidance regarding immigration laws, it is advisable to consult with an immigration attorney before taking any steps.

For more information, click here.

In order to find an immigration lawyer who can serve your needs, you can try to get recommendations from friends or people you know that have had successful immigration-related cases. Another great way is to maximize the use of the internet to search for different lawyers who give free consultations, and contact them in order to find out if they handle cases like yours and if you will both agree with the fees and terms. You don’t have to randomly call lawyers from a phone book; visiting their law firm’s website will provide you with enough idea of what their area of expertise is, and their contact details.

During the free consultation, you may give a brief summary of your case to the lawyer, then they will be able to make an initial assessment of the case at hand. The lawyer will determine if it is within their expertise or not. If it is, then you may talk about the fees and come up with agreeable terms.

To read more, click here.

A wrongful death action may lie for a suicide. Where defendant owed a duty of due care to the victim and defendant’s act or omission was a substantial factor in causing the suicide, defendant is not exonerated from liability on the theory that the suicide was the result of the victim’s own act (i.e., suicide is not a superseding cause of defendant’ s negligence; see 2:2454). [See Jacoves v. United Merchandising Corp. (1992) 9 CA4th 88, 111–112, 11 CR2d 468, 482–483;]. Any person having lawful possession and control of a handgun is immune from liability arising from a third person’s criminal or unlawful misuse of the handgun so long as (a) the third person was not authorized to access the handgun, and (b) a secure gun storage or safety device (below) rendered the handgun inoperable at the time the third person accessed it. [18 USC § 922(z)(3)(A),(B),(C)(i); see 15 USC § 7903(9)—“unlawful misuse” is conduct in violation of a statute, ordinance or regulation]. However, this immunity does not bar an action for negligence per se (see 2:1845 ff.) or negligent entrustment. A “secure gun storage or safety device” is either an installed device that must be deactivated to discharge the firearm; a device incorporated into the firearm design that prevents discharge by anyone not having access to the device; or a locked safe, case or other firearm storage device.

However, the parent-child relationship does not itself render parents vicariously liable for their minor child’s torts. Any vicarious liability attaches to the parents only under general tort law principles (e.g., potential respondeat superior). However, parental liability may lie under any of the following circumstances: The parent has knowledge of the child’s prior misconduct;  The parent signed the child’s driver’s license application or the child drives the parent’s car with permission; The child is guilty of willful misconduct; The child was given access to firearms ;The child defaced another’s property with graffiti; or the child is convicted of a crime and ordered to pay restitution to the victim. Parents are liable for their minor child’s torts if they knew or had reason to know (typically, from past misconduct) it was necessary to control and supervise the child to prevent future harm to others and

they failed to exercise reasonable care to do so. It is best to seek personal assistance from a lawyer in order to assist in your personal injury case.

To read more, click here.

Some insurance policies (e.g., Kaiser) cover the insured’s medical bills, but give the carrier a right of reimbursement from the insured claimant in the event of recovery from a third party. Such medical liens (or rights of subrogation) reduce the net value of the potential claim and thus might make legal action economically impractical. Generally, under the “collateral source rule,” defendant’s liability is not reduced by claimant’s medical expense recoveries from claimant’s own insurance carriers and re government entity defendant’s right to “verdict adjustment” to reflect collateral source benefits, therefore, claimant’s insurance policies should be reviewed for applicable medical pay coverage.

Moreover, an early “policy limits demand” letter to defense insurance carriers is a popular plaintiffs’ tactic to speed along the settlement process. The demand letter recaps the liability case against the insured and itemizes plaintiff’s consequential damages to date (itemized wage losses, medical expenses, etc.). It typically requests a “policy limits” settlement, “reminding” the insurer of its “excess liability” exposure to its insured in the event the case does not settle and a judgment beyond policy limits is entered against the insured defendant.  As to the medical bills, it is important to itemize each cost that the claimant has incurred and/or will incur in diagnosis and treatment of the injuries, and also to attach copies of the bills to date. It would be best to seek personal assistance from a lawyer in order to assist you in your personal injury case.

To read more, click here.

Assault may be charged as against the defendant if the present case has all the requisites of the same offense as provided in the Penal Code. With regard to the aspect of Personal Injury, compensation for mental distress may be asked for. A cognizable emotional distress cause of action entitles plaintiff to reasonable compensation for any fear, anxiety and other emotional distress suffered and/or to be suffered in the future (plus reasonable compensation for consequential financial loss).  As with general “pain and suffering” damages in physical injury cases, there is no precise measure prescribed by law; rather, the jury is instructed to “use your judgment to decide a reasonable amount based on the evidence and your common sense. The tort of intentional infliction of emotional distress is based on defendant’s “unprivileged” commission of an “outrageous act” with the intent to inflict mental suffering. An essential element of the cause of action is “extreme and outrageous” conduct by defendant. Essentially, defendant’s conduct must be so extreme as to “exceed all bounds of decency usually tolerated in a civilized society.” An example of an “extreme and outrageous conduct” is habitual, unprivileged threats of physical violence. [State Rubbish Collectors Ass'n v.Siliznoff, supra, 38 C2d at 335–336, 240 P2d at 284–285]

Moreover, there is a special relationship between a school district (or its employees) and students, so as to impose an affirmative duty on the district/employees to take reasonable steps to protect students from reasonably foreseeable risks of harm. For instance, A student sexually assaulted in the school restroom could sue the school district based on an omission to act. [M.W. v. Panama Buena Vista Union School Dist., supra, 110 CA4th at 517–525, 1 CR3d at 679–686]. It would be best to seek personal assistance from a lawyer to help you in filing your personal injury case.

To read more, click here.

There is a special relationship between a school district (or its employees) and students, so as to impose an affirmative duty on the district/employees to take reasonable steps to protect students from reasonably foreseeable risks of harm. This special relationship does not necessarily end with the classroom day but may extend to postclassroom, school-sponsored activities, including those where participation is voluntary. A student struck by a car could sue the school district for failure to correct hazardous parking conditions. [Constantinescu v. Conejo Valley Unified School Dist., supra, 16 CA4th at 1472–1473, 20 CR2d at 738]. Also, The special relationship between a student’s parents and teachers may expose the school district to liability to the parent for failure to act to prevent harm to the student. [Phyllis P. v. Super.Ct. (Claremont Unified School Dist.) (1986) 183 CA3d 1193, 228 CR 776—special relationship between teachers and parents required school district to inform mother of student'smolestation and subsequent psychological counseling (mother could recover emotional distress damages)]. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

Plaintiff may recover compensatory damages for personal property loss proximately caused by defendant’s negligent or otherwise wrongful act or omission. If the property is completely destroyed or beyond repair, damages are usually based on the fair market value at time of destruction (i.e., just prior to the tortious event). If the damage falls short of destruction (i.e., property can be repaired), there are basically two alternative measures of damages: the cost of repairs, or the difference in the property’s value before and after the accident. “Cost of repairs” is appropriate only if there is no defense contention that such measure would exceed the property’s depreciation in value. Plaintiff has paid the cost of repairs, the bills and cancelled checks can be introduced as evidence of the loss sustained and the amount of damages that should be awarded. Alternatively, if the property has not yet been repaired, written repair estimates from a qualified source can be used as evidence of the repair costs which will be incurred in the future. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

A gym owner/operator owes its members a duty to maintain the equipment in safe working ordertriable factual issuewhether user’s fall caused by sticky substance on treadmill was due to gym’s. negligence in not inspecting equipment; Rostai v. Neste Enterprises (2006)138 CA4th 326, 337, 41 CR3d 411, 419, fn. 3]. But there is no duty to monitor a member’s physical response during a fitness training session to prevent inherent risks, such as muscle injury or even a heart attack. [Rostaiv. Neste Enterprises, supra, 138 CA4th at 336–337, 41 CR3d at 418–419]. Whether to pursue a claim (¶ 1:61 ff.) and the manner in which a particular claim should be pursuedwith respect to settlement (Ch. 4) depends in substantial part on the value of the claim. “Value” is, to a large extent, a reflection of the damages incurred. Thus, every claim must be analyzed from the outset for its damages components; and for the “odds” on the extent of recoverable damages. At the very least, a person who has suffered injury through the fault of another is entitled to “be made whole”—i.e., to be restored insofar as is possible to his or her preinjury condition through a “compensatory” damages award. Clearly, the person who sustained personal injury as a proximate result of the wrongful act of another can recover compensatory damages on his or her own behalf. Ordinarily, the most “valuable” element of a bodily injury claim is the right to compensation for all “pain and suffering” plaintiff has sustained, and will endure, as a proximate result of the injury. ”: “Pain and suffering” is a unitary concept, encompassing all the physical discomfort and emotional trauma occasioned by an injury. Plaintiff is entitled to compensatory damages for all physical pain suffered … and also for all resulting “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

The right of wrongful death claimants to recover insurance benefits under defendant’s liability policy turns in the first instance on the language of the policy. Where two-tiered coverage is provided—one limit for “bodily injury” sustained by any person regardless of the number of claims made, and another limit for “each occurrence”—

the insurer’s collective exposure is restricted to the “bodily injury/per person” limit—not the greater “per occurrence” limit. This result rests on the “one action rule” (¶ 3:301): Plaintiffs’ claims do not constitute separate “bodily injuries” under such a policy but, rather, separate elements of damages flowing from the single bodily injury to the decedent. [See United Services Auto. Ass'n v. Lilly (1990) 217 CA3d 1396, 266 CR 691; Westfield Ins. Co. v. Estate of DeSimone (1988) 201 CA3d 598, 247 CR 291; Vanguard Ins. Co. v. Schabatka (1975) 46 CA3d 887, 120 CR 614].  Keep in mind that the “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof. Thus, counsel evaluating damages should always determine the best evidence available to substantiate plaintiff’s assertions; and acquire that evidence while it is fresh. It is best to seek personal assistance from a lawyer in order to help you in your personal injury case.

To read more, click here.

An injured party as in the present case may file a personal injury case on the ground of negligence. As a general rule, the burden of proof as to negligence (duty and breach) and causation rests upon plaintiff; and plaintiff does not meet this burden simply by demonstrating that one of several defendants could have been responsible. However, there are some exceptions to this rule. These are situations in which, for policy reasons, the burden effectively shifts to defendants to absolve themselves from responsibility or to show that some other defendant or event caused the injuries, called the doctrine of res ipsa loquitor. The plaintiffs seeking to invoke res ipsa loquitur have the burden of establishing the following three conditions: That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and that the accident was not due to any voluntary action or contribution on plaintiff’s part. [That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and that the accident was not due to any voluntary action or contribution on plaintiff’s part. : The existence of these  conditions is usually a question of fact for the jury. “Where reasonable persons may differ as to the balance of probabilities,the court must leave the question to the jury.” Moreover, a plaintiff who can prove the essential elements of res ipsa loquitur may be able to shift the burden of proof to defendant in an adulterated food case. It would be best to seek personal assistance from a lawyer in order to assist you in filing a personal injury claim.

To read more, click here.

If judgment for the prevailing party in an unlimited civil case could have been rendered in a limited civil case (because it did not exceed the $25,000 cut-off for limited civil case classification, CCP §§ 85(a), 86(a)), the right to costs is discretionary with the trial judge. The purpose is to encourage plaintiffs to bring small cases as limited civil cases and thereby conserve on both judicial resources and client finances. [CCP § 1033(a); Valentino v. Elliott Sav–On Gas, Inc. (1988) 201 CA3d 692, 701–702, 247 CR 483, 488–489; see Steele v. Jensen Instrument Co. (1997) 59 CA4th 326, 330–331, 69 CR2d 135, 137–138]. The statutory rules are more complex where plaintiff prevails in a limited civil case but recovers a judgment within the small claims court jurisdictional cut-off. It would be best to seek personal assistance from a lawyer in order to guide you in filing a small claim for your personal injury case.

To read more, click here.

Ordinarily, tort liability cannot be established unless plaintiffs can prove their injuries resulted from the tortious acts of a particular defendant or defendants. As a general rule, the burden of proof as to negligence (duty and breach) and causation rests upon plaintiff; and plaintiff does not meet this burden simply by demonstrating that one of several defendants could have been responsible. [See Sindell v. Abbott Laboratories (1980) 26 C3d 588, 597, 163 CR 132, 136].Moreover, the “strict product liability” theory of recovery exposes a broad range of defendants to legal accountability for “defective” products. Liability attaches upon proof of the product “defect” and a sufficient causalconnection between defendant, the product and plaintiff’s injury. However, the strict liability doctrine does not apply where the primary objective of the transaction is to provide a service rather than a “product.” This limitation recognizes that “perfection” cannot be expected from human performance: Whereas a defect in a product is ultimately objectively measurable, “a service is no more than direct human action or human performance. Whether that performance is defective is judged by what is reasonable under the circumstances and depends upon the actor’s skill, judgment, training, knowledge and experience … In light of the infinite subtle nuances of human performance, the law reasonably imposes only a standard of negligence rather than strict liability in the provision of human services [Pierson v. Sharp Memorial Hosp., Inc. (1989) 216 CA3d 340, 345, 264 CR 673, 676].

Furthermore, plaintiffs who can show actual bodily harm or injury from exposure to toxins are entitled to recover emotional distress damages as part of their pain and suffering. Such bodily injury may consist of a detrimental change in the physical condition of the body. [Duarte v. Zachariah (1994) 22 CA4th 1652, 1660–1663, 28 CR2d88, 93–94 & fn. 6]. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

Ordinarily the burden of proving negligence is on the plaintiff. An exception for this is the doctrine of res ipsa loquitor wherein the burden effectively shifts to defendants to absolve themselves from responsibility or to show that some other defendant or event caused the injuries provided that certain conditions are met. As a general rule, res ipsa loquitur is ill-suited to slip-and-fall cases. No inference of negligence can arise simply upon proof of a fall on the defendant’s floor. This is so even when the fall is associated with a slippery object, “because objects all too often appear on floors without sufficient explanation.” [Brown v. Poway Unified School Dist., supra, 4 C4th at826–828, 15 CR2d at 683–684]. Under these circumstances, plaintiff must produce evidence of some specific negligent act or omission and that there is a sufficient causal connection between defendant’s conduct and plaintiff’s injury. [Zentz v. Coca Cola Bottling Co., supra, 39 C2d at 442, 247 P2d at 347; see Ford v. Miller Meat Co.(1994) 28 CA4th 1196, 1203, 33 CR2d 899, 903].

Moreover, evidence of the amount actually incurred or paid to the medical provider is, of course, relevant to prove plaintiff’s damages for past medical expenses and, assuming it satisfies other rules of evidence, is admissible at trial. It would be best to seek personal assistance from a lawyer in order to guide you in filing your personal injury claim.

To read more, click here.

In many cases, the client cannot afford to pay court costs and expenses as they are incurred. Counsel can agree, but is not required, to advance expenses on behalf of the client. Ordinarily, the client is ultimately responsible for the payment of costs and expenses. However, attorney and client may agree to make the repayment obligation contingent on the outcome of the case. [CRPC 4–210(A)(3); Ojeda v. Sharp Cabrillo Hosp., supra, 8 CA4th at 9, 21, 10 CR2d at 235, 243–244]. In such event, of course, the attorney has a right to repayment only if the client prevails in the action (by judgment or settlement) as specified in the agreement (see ¶ 1:169). As to insurance companies, many of them use “in-house” lawyers to handle routine cases. Unlike “independent” counsel who are retained on a case-by-case basis to defend selected claims, these defense attorneys are full-time employees of the insurance carrier. In-house counsels usually are specialists in the defense of bodily injury claims. But for settlement purposes, they typically are used only as “conduits” between claimant’s attorney and the claims representative—i.e., as a vehicle to communicate the positions of each side. Claims personnel are less likely to be persuaded by the settlement recommendations of their own legal staff—particularly where the opinion markedly differs from their own. On the other hand, claims personnel generally are more amenable to the settlement recommendations of independent counsel. Thus, so long as you can convince such attorney of the merits of the claim, you are likely to have greater success in settling at your “bottom line” figure than if negotiations had continued through the carrier’s in-house counsel. (Of course, if the carrier does assign in-house counsel to the case, you should continue negotiations with an open mind; if a compromise cannot be achieved at this stage, there is still a chance for success at a later time—e.g., deposition, arbitration hearing, mandatory settlement conference, etc.). It is best to consult a lawyer in order to help you with your personal injury case.

To read more, click here.

Under the “collateral source rule,” medical benefits and any other injury compensation  received by plaintiff from sources wholly independent of defendant (e.g., under plaintiff’s health, disability or accident insurance, or social security or disability benefits) are not deducted from the damages otherwise recoverable. Defendant is not entitled to an “offset” for plaintiff’s “collateral source” compensation (e.g., medical bills paid by others) and cannot introduce the fact of such payments into evidence on the question of mitigation of damages. [Lund v. San Joaquin Valley R.R. (2003) 31 C4th 1, 8–10, 1 CR3d 412, 416–418; ]. From the above-mentioned rule, it is implied that a person may sue even if he is receiving a social security. Moreover, as to the impact on decision to sue, It follows that an effective preliminary investigation tort-feasors are “suable” and/or able to satisfy a judgment. If the largest share of fault lies with a tortfeasor immune from suit, or one unable to respond in damages (e.g., lacking insurance coverage or perhaps bankrupt), counsel and client will have to weigh whether it makes economic sense to pursue the case to trial against the others. It would be best to seek personal assistance from a lawyer in order to guide in filing a personal injury claim.

To read more, click here.

A case may be opened provided that negligence on the part of the store is established. Where a negligence action is predicated on defendant’s violation of a statute, ordinance or public entity safety regulation, plaintiffs may be entitled to the benefit of the “negligence per se” doctrine in establishing their prima facie case. This doctrine presumes defendant’s duty and breach (failure to exercise due care); and the only issue left for plaintiff to prove is whether the violation proximately caused the injury or death. [Ev.C.§ 669; Satterlee v. Orange Glenn School Dist. (1947) 29 C2d 581, 588, 177 P2d 279, 283–284 ]. Evidence Code codifies the “negligence per se” doctrine as a presumption affecting the burden of proof: i.e., defendant’s failure to exercise due care is presumed if defendant violated a statute, ordinance or safety regulation of a public entity; the violation legally caused injury or death; the occurrence resulting in the injury or death was of a nature that the statute, ordinance or regulation was designed to prevent; and the victim was among the class of persons for whose protection the statute, ordinance or regulation was adopted. The burden is on the proponent of the doctrine to demonstrate that all four of the above conditions are met. The first two conditions (defendant’s violation and causation) normally are fact questions for the jury, but may be decided by the court as a matter of law where reasonable minds could not differ. The last two conditions are always legal issues for the trial court. [Hoff v. Vacaville Unified School Dist. (1998) 19 C4th 925, 938, 80 CR2d 811, 819; Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc., supra, 190 CA4th at 1526, 119 CR3d at 546; Urhausen v. Longs Drug Stores Calif.,Inc. (2007) 155 CA4th 254, 267, 270, 65 CR3d 838, 847, 850]. It would be best to seek personal assistance from a lawyer to help you with your personal injury claim.

To read more, click here.

In slip-and-fall cases, tort liability cannot be established unless plaintiffs can prove their injuries resulted from thetortious acts of a particular defendant or defendants. The doctrine of res ipsa loquitor wherein the burden of proof is shifted to the defendant subject to certain conditions is generally not applicable in slip-and-fall cases. No inference of negligence can arise simply upon proof of a fall on the defendant’s floor. This is so even when the fall is associated with a slippery object, “because objects all too often appear on floors without sufficient explanation.” [Brown v. Poway Unified School Dist., supra, 4 C4th at 826–828, 15 CR2d at 683–684\ 3342(a)]. However, in one case, it was held that the doctrine of res ipsa is applicable as where the object was left on the floor long enough so that the defendant “should have discovered and removed it.” [Brown v. Poway Unified School Dist., supra, 4 C4th at 826, 15 CR2d at 683]. In determining whether this condition is satisfied, the trier of fact may consider common knowledge, expert witness testimony, and the circumstances relating to the particular accident in issue. [Newing v. Cheatham, supra, 15 C3d at 359–360, 124 CR at 199; Zentz v. Coca Cola Bottling Co., supra, 39 C2d at 446, 247 P2d at 349; Blackwell v. Hurst, supra, 46 CA4th at 943–945, 54 CR2d at 212–213].

On the other hand, the “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof. It would be best to seek personal assistance from a lawyer in order to guide you in filing a personal injury claim.

To read more, click here.

Various statutes impose specified “penalties” for proscribed conduct, either by way of a fixed sum or a doubling or trebling of actual damages. While statutory civil penalties and punitive damages awards both serve to motivate compliance with the law and “punish” wrongdoers, they are distinct legal concepts: Unlike punitive damages, statutory penalties are imposed without regard to motive and require no showing of actual harm or “malicious, wilfullor intentional” conduct; a civil penalty award is entrusted to and set by the Legislature and thus is not left to jury discretion. [Kizer v. County of San Mateo (1991) 53 C3d 139, 146–148, 279 CR 318,  322–323; People v. First Fed'l Credit Corp.,]. Read the full answer…

Claimant is entitled to recover the reasonable value of all medical expenses that have been incurred, and that are reasonably certain to be incurred in the future, as a result of the injury. [Howell v. Hamilton Meats & Provisions, Inc]. The “value” of plaintiff’s claim ultimately depends on evidence to support it. Plaintiff’s naked assertions as to pain and suffering, medical expenses, loss of earnings and earning capacity, etc. will have little effect on an insurance claims representative or jury without corroborative proof. Read the full answer…

Electricity may be a “product”—and therefore the subject of strict liability—only once it is delivered to the consumer. In contrast, utility providers are not strictly liable for injury resulting from faulty transmission because, prior to delivery to the consumer’s meter, electricity has not been introduced (marketed) into the stream of commerce. Read the full answer…

Firefighters, law enforcement officers, paramedics and 911 emergency dispatchers are immune from liability for damages arising out of their rendition of emergency medical assistance, unless the victim’s damages are attributable to an act or omission “performed in a grossly negligent manner” or “not performed in good faith.” Read the full answer…

Businesses, such as shopping centers, restaurants and bars, have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control (e.g., parking lots), against reasonably foreseeable criminal acts of third parties. [Delgado v. Trax Bar & Grill, supra, 36 C4th at 235, 30 CR3d at 153; Morris v. De La Torre, supra]. The extent to which a business must take measures to prevent criminal conduct (e.g., hiring security guards) is determined largely under general negligence principles. Read the full answer…

Would you like to discuss your legal matter?

PHONE

image description
Maria Medina RECEPTION (877)509-5204

I assist in scheduling new and existing clients for all offices. For initial consultations I will ask you a few questions and then find the best time for you to talk to one of the lawyers that best fits your legal matter. We do offer free consultations, however, we do not give free legal advice.

Call me or use the email form and I will follow up with you right away.

EMAIL

  • Proper format "(999)999-9999"
The Law Offices of Tom Hogan will provide you with personalized attention and guidance. Protecting your rights is our main objective. We have been representing clients for the past 25 years and our experienced team of attorneys will advise you of the legal consequences of every decision you take.
Back to top