by Andy Chen | Jul 22, 2024 | California, contracts
A question that many people involved in civil cases ask is whether they can get the other party to pay their attorney’s fees. As you might guess, many people who ask this question are defendants who have been sued for reasons that are frivolous, meritless, or some combination of the two. After all, the cost of hiring a lawyer is substantial. Why should a defendant who has done nothing wrong have to pay for an attorney when the plaintiff is the one truly at fault? In today’s post, I’m going to go over how California law answers this question. The short answer or rule of thumb to remember is that attorney’s fees and costs are generally recoverable in three scenarios: (1) when authorized by a contract signed by the parties, (2) when the law in questions itself authorizes attorney’s fees and costs to be awarded, or (3) if the judicial officer in your case awards attorney’s fees and costs for whatever reason. As you’ve perhaps seen or experienced, judges have significant discretion about how to handle the cases before them. If you’re looking for California authority on this, look at Section 1021 of the Code of Civil Procedure, which states: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” Section 1021 also draws a distinction between fees paid to an attorney for their time and costs — for instance, court filing...
by Andy Chen | Jul 20, 2024 | California, Enterprise
Previously, I wrote about the Cost-Benefit Analysis that goes into form a Limited Liability Company (LLC) in California. My guess is that way back in the day, forming an LLC — or any kind of legal entity for a business, for that matter — was really involved. Lawyers were needed to fill out and file all sorts of forms. As a result, this was something only the rich could afford. Things have changed. Nowadays, a simple Google search will lead you to several companies that will help you form an LLC or any other kind of entity in whatever state you choose in a few minutes for a small fee. Like with many things in life, this is a mixed bag. On the one hand, starting a business using an LLC is now easier and available to more people. On the other hand, though, more and more people are starting entities like LLCs for the first-time and making all sorts of mistakes. One of these mistakes is believing incorrectly that an LLC can represent itself. In 2020, I wrote this post about how any sort of corporation can only be represented in California by an attorney. In today’s post, I’m going to go over another common mistake that people forming LLCs and other entities in California for the first-time often make, namely the Statement of Information form. In the recent past, the California Secretary of State put out an actual PDF form called a Statement of Information. That form is gone and the info instead has to be submitted via the California Secretary of State’s website. Regardless, though, the...
by Andy Chen | Apr 26, 2024 | California
This is my second post on the topic of Civil Discovery in legal matters. In my first post, I went over the scope of civil discovery under California law, New York law, as well as Federal law. I’m sticking with that format in this post and the topic of Response Times. A Response Time is, as the name might imply, the time period within which the party who has received a request for evidence or information has to provide that evidence or information. Again, the precise time period that applies to your particular situation is going to depend very much on the law that applies to your case. As you’ll hopefully see below, it’s extremely dangerous to make assumptions when it comes to any sort of discovery. I’ll illustrate this using a common form of written discovery called a Request for Admission. California Under California state law, the Response Time for a Request for Admission is described in Section 2033.250 of the California Code of Civil Procedure, which states: “Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” As the bolded and underlined part indicates, the Response Time is 30 days. Specifically, this is 30 calendar days. This is an extremely important distinction because...
by Andy Chen | Apr 24, 2024 | California, Family Law, New York
In this post, I’m going to continue my comparison of how New York and California treat various topics. As with past posts, I’m hoping that you can see how laws differ between states in the US, but also have some similarities as well. The topic today is going to be the grounds or reasons upon which you can seek divorce in California versus New York. New York In my last post, I described the seven different grounds or reasons why you can seek a divorce in New York state. These are summarized in bullet point format below. The relevant statute is section 170 of New York’s Domestic Relations Law. Section 170 is quite long so I’m not going to quote it here verbatim. Please do refer to the precise text of section 170 if you need anything more than what I’m going to paraphrase below: Cruel and inhumane treatment by defendant such that it endangers plaintiff’s physical and mental well-being to remain in the marriage; Defendant abandons plaintiff for at least one year; Defendant is confined in prison for at least three years; Adultery; Spouses living apartment for at least a year pursuant to a judgment of legal separation; Spouses living apart for at least a year pursuant to a written separation agreement; or Spouses with a relationship that has irretrievably broken down for at least 6 months. California To contrast with New York, California’s grounds for divorce are much simpler. There are basically only two grounds: (1) irreconcilable differences, and (2) permanent legal incapacity to make decisions. If you’re looking at a California divorce petition, the grounds for...
by Andy Chen | Apr 22, 2024 | California, Federal, New York
In today’s post, I’m going to try and explain the concept of Discovery in civil cases and what the boundaries or scope of that discovery is. I’ll use some examples from California law as well as New York law and also some tidbits from federal law as well. Depending on the court that your case is in (for instance, California Superior Court versus US District Court), one set of rules and laws will apply, but not the other. Be forewarned, though, that the topic of civil discovery can get very, very, very complicated. Lots of specific requirements apply. It can absolutely get very frustrating. It’s similar to how taxes work and why, for instance, certain tax rules make no logical sense when compared to the real world. The vast majority of people, of course, just follow the rules when it comes to taxes and don’t bother worrying about why tax rules are the way they are. When it comes to discovery, in my opinion, a lot of these complexities are unnecessary and the whole discovery process could be made easier and more efficient without prejudice or harm to any litigant. However, it’s not up to me — at least not yet — and instead it depends on the whims and fancies of politicians and legislatures. It is what it is. Having said that, let me start with a basic definition of what “discovery” actually is: it’s the process in litigation where the various parties can seek or obtain evidence or facts that are relevant to the case. As the adage goes, each party puts all of their cards on...
by Andy Chen | Apr 20, 2024 | New York, Statutes... and stuff
Previously, I blogged about the residency requirements one has to satisfy in order to file a divorce, separation, or annulment case in the state of New York. Today, I’m going to go over another requirement you have to satisfy when filing a divorce case in New York, namely the grounds or reasons for divorce. New York’s residency requirement is described in New York Domestic Relations Law section 230 and is termed a “residency requirements” because, in most states, the requirement generally relates to living in the state in some way. The grounds requirement, though, for divorce in New York relates more to what occurred between the couple and generally involves more complicated questions than just ‘Did the parties live in New York?’ The grounds requirement for divorce in New York is described in New York Domestic Relations Law section 170. There are seven possible grounds. The plaintiff is the spouse filing for divorce. As with a generic “residency requirement”, a plaintiff need only satisfy one of the seven, but each one of the seven may have several components that all need to be met before the ground itself can be invoked. As with my residency requirement post, I’ll indicate each of the components with a letter (e.g. (a), (b), etc). (a) The defendant spouse has treated the plaintiff spouse in a cruel and inhuman way such that (b) this treatment endangers the physical and mental well being of the plaintiff so much that it (c) makes it unsafe or improper for plaintiff to continue cohabiting with defendant; (a) The abandonment of the plaintiff by the defendant for a period...
by Andy Chen | Jul 12, 2023 | California, Enterprise, Law, in real life
I’ve written a few posts now about Limited Liability Companies (LLC) in California. In prior posts, for example, I’ve discussed whether an LLC can be used to form a law firm in California. I’ve also described the minimization approach law schools in the US typically use when teaching about business entities, like an LLC. I’m going to talk about LLCs in this post, but the basic logic I’m describing will apply to other types of entities also. In this post, I am going to expand on this idea of minimizing tax and legal liability. Most law schools start there and, unfortunately, also end there which means there is a bias towards always forming an LLC because, essentially, why would wanting to minimize tax and legal liability ever be a bad thing? In my view, it’s not a bad thing, but it might not be as good a thing as you initially think. The reason is because of Cost-Benefit Analysis. In other words, forming an LLC will result in several benefits, advantages, or positives. If you just stop there, then you should clearly always form an LLC. Realistically, of course, forming an LLC will also involve certain costs, drawbacks, or negatives. This should not be a groundbreaking concept to anyone because the same is true for all decisions you make in life. What ultimately matters when deciding to form an LLC is — like it is in other arenas in life — what the net result is. Do the benefits of having an LLC outweigh the costs of having an LLC? One relevant consideration here would, for instance, be whether...
by Andy Chen | Jul 9, 2023 | California, Enterprise, Law, in real life
A lot of people now have side hustles or are otherwise self-employed. If you’re one of these people, you might have wondered at some point whether or not you should form a legal entity of some kind, such as a Limited Liability Company (LLC). Doing so is much easier now than it was, say, even 5 years ago. Many websites advertise that they will help you form an LLC in California, Nevada, or Delaware in 10 minutes or less for $99, for example. In this post, I’m going to discuss just LLCs given how common and popular they are. They are, by no means, the only entity out there. In 2021, for example, I wrote a post about whether you can use an LLC in California to form a law firm. Specifically, I’m going to describe something simple, namely how the question of “Should I form…” is taught in law school. Law schools in the US often address this topic in a survey course discussing business organizations or entities. At my law school, the survey course was, in fact, called “Business Organizations”. That course analyzed this question from the perspective of minimization. In other words, when forming a business or running a business, the typical owner is concerned about minimizing two things: Minimizing their legal liability. In other words, if their business does get into legal trouble of some kind (e.g. lawsuit from a customer or vendor, etc.), the business wants to limit the scope of their potential loss or exposure. Minimizing their tax liability. I’m sure you’ve heard many, many stories about how very large publicly-traded companies that...
by Andy Chen | Jul 4, 2023 | California, Criminal law, Law School Help
In looking over my blog posts, it appears I started — or at least had aspirations to start — making posts aimed at law school students. Specifically, I wanted to add some real-world details to the offenses that law school only teaches in a general or basic way. To be fair to law schools, this general or basic way is by necessity as the school has no idea which jurisdiction, if any, the student will ultimately practice law in and how that jurisdiction defines that particular offense. Many legal offenses are defined in terms of a criteria-based approach. In other words, the offense in question (e.g. robbery) has a set number of requirements or criteria that have to be satisfied. If the “net evidence” shows that these criteria have been satisfied or proven to a specific standard (e.g. beyond a reasonable doubt), then the defendant will be guilty or liable of that offense. I say “net evidence” here because you should remember that the decision of guilt or liability will be made after considering (1) the evidence tending to show guilt or liability as well as (2) the evidence tending to not show guilt or liability. There is no quantitative way to compute what evidence cancels what, but the idea of a net balance should still make sense. In other words, is there ultimately more credible and reliable evidence showing guilt or liability or is there more credible and reliable evidence showing that the defendant is not guilty or not liable? If all of that made sense, I’m going to talk about the crime of robbery in this post...
by Andy Chen | Jul 2, 2023 | Family Law, New York, Statutes... and stuff
I’ve been licensed to practice law in New York since 2012. Unfortunately, I do not maintain an office in New York. This means that I cannot take clients who live in New York due to the NY Court of Appeals‘ 2015 ruling interpreting NY Judiciary Law section 470 in the case of Schoenefeld v. State of New York, et al. That appears to be changing, though. Legislation has been passed by both the New York State Senate and, as of June 7, 2023, the New York State Assembly to repeal Judicial Law Section 470. Stay tuned for updates. Because Section 470 is still in effect, I can’t practice law in the state of New York. However, what I’m going to discuss in this blog post and all my NY blog posts that follow is information any member of the public can look up for themselves. I offer no opinion on whether the particular statute or case I go over is advisable or prudent for their particular situation. My hope is that, even though my blog posts are purely factual, my post will give the enterprising reader an idea or plant a seed for further research that they would otherwise not have had. Put simply: after reading my factual post, maybe you can do more research that didn’t occur to you before and, hopefully, be better off for it. In this post on the laws of the state of New York, I’m going to talk about the residency requirements for a divorce. A residency requirement is the basic idea that in order to file for divorce in a given state...
