by Andy Chen | Jun 2, 2021 | California, Statutes... and stuff, Torts
For a change of pace, I’m going to do a short post. (I can hear all of you now collectively going “Finally!”) The topic of today’s post is the statute of limitations for a negligence action in California. As a reminder, a statute of limitations is the time period within which a plaintiff has to file their civil suit seeking redress from the defendant. As a general rule of thumb, this proverbial clock starts to run when the last criteria that needs to be met in order to prove the lawsuit occurs. Phrased another way, if you need to prove 5 criteria in order to win your lawsuit, your statute of limitations clock doesn’t start to run until the 5th and final criteria occurs. In California, the negligence statute of limitations is 2 years under Section 335.1 of California’s Code of Civil Procedure. Section 335.1 states “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” An example where this might apply would be a car accident where the plaintiff suffered injuries of some kind to their body. There are many exceptions to this two-year rule, however. For example, if your case involves asbestos exposure of some kind, the statute of limitations could be as short as one year under Section 340.2 of California’s Code of Civil Procedure. If you have a situation involving negligence in California, the best way to know what statute of limitations applies to you is to find a lawyer with whom you can discuss the details of...
by Andy Chen | May 31, 2021 | New York
In this post, I’m going to go over the statute of limitations under New York law for a negligence lawsuit. As a reminder, negligence is a type of tort for which a plaintiff can seek redress by filing a civil suit, often for money. In layman’s terms, negligence occurs when the defendant does something, but fails to exercise something called “ordinary care”. In my mind, a failure to exercise ordinary care is when the defendant fails to abide by the expectations people in society assume. For instance, when you’re driving a vehicle, pedestrians will assume that you’re paying attention, using your mirrors, etc. If you as the driver fail to exercise ordinary care — for instance, you’re not paying attention because you’re texting while driving — and cause an accident, you’ll likely be accused of negligence. If you’re a plaintiff suing for negligence, you generally have to prove at least these four criteria. : That defendant owed a duty to you, That defendant breached that duty to you by, for instance, failing to exercise ordinary care, You suffered injuries or damage of some kind, and Defendant’s breach of that duty to you was the proximate cause of the injuries or damage you suffered. These four criteria are, as I mentioned, not specific to one particular state. I learned the 4-criteria version of negligence in law school. Some lawyers learn the 3-criteria version which basically combines the injury and causation bulletpoints above into a single bulletpoint that states something like “defendant’s breach of duty proximately caused plaintiff’s injuries.” What’s powerful about negligence if you’re the plaintiff — or annoying, I...
by Andy Chen | Apr 29, 2021 | California, Statutes... and stuff
In prior posts, I’ve gone over issues such as the presentation requirement when an attorney and client sign a fee agreement. On my Youtube channel, I’ve also gone over topics such as what a California contingency fee agreement has to have. In this post, I’m going to go over California’s requirements for a fee agreement when the agreement is negotiated in a language other than English. The relevant California statute is going to be section 1632 of the California Civil Code. If you read section 1632, you’ll quickly notice that it is not specific to attorney fee agreements, but discusses more broadly the question of when a written contract needs to be provided in a language that isn’t English. The relevant portion of section 1632 that applies to fee agreements between clients and attorneys is sub-section (b)(6), which provides: “Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into any of the following, shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, that includes a translation of every term and condition in that contract or agreement: (6) A contract or agreement, containing a statement of fees or charges, entered into for the purpose of obtaining legal services, when the person who is engaged in business is currently licensed to practice law pursuant to Chapter 4 (commencing with Section 6000) of Division 3 of the Business...
by Andy Chen | Apr 26, 2021 | California, Statutes... and stuff
If you didn’t know, I have a Youtube channel in addition to this blog that I, more or less, regularly post to. A while ago, I put out a video on the Youtube channel about contingency fee agreements used by attorneys in California. Here it is: Actually, to be technically correct, I put out two videos. The one I embedded above talks about contingency fee agreements in California cases generally (i.e. all cases except family law). The other video (linked here) talks about contingency fee agreements in family law cases because the question of ‘Can I use a contingency fee agreement in a family law case?’ often comes up. For background, a “fee agreement” is the contract you sign when you hire an attorney. These agreements are, of course, not specific to California. If you’re going to hire a lawyer in another US state, chances are that lawyer will want a fee agreement of some sort signed also. California, though, has numerous rules that fee agreements have to satisfy. I went over some of those rules in my videos (e.g. required contents of a fee agreement). In this post, though, I’m going to go over the rules relating to presentation. What “presentation” refers to is that a client needs to be given a copy of the fee agreement after it has been signed. Personally, I would have thought it blatantly obvious that a client needs to get a copy of their signed fee agreement, but it apparently isn’t that obvious because it’s addressed not only once, but twice in California’s statutes. The first is in section 6147(a) of the...
by Andy Chen | Apr 20, 2021 | California, Statutes... and stuff
When it comes to the law and court cases, it is extremely common to have to serve documents by mail. You can serve documents in person as well, of course, but that can be inconvenient or impractical given the need to coordinate schedules, locations, etc. It’s obviously much more convenient to be able to serve legal documents by simply dropping it in the US Mail. If you subscribe to my Youtube channel, you’ll know that I have a video on how to fill in California Judicial Council form FL-335 (available here), or Proof of Service by Mail for California Family Law cases. Here’s the video: There is an equivalent proof of service by mail form in California civil court (i.e. the form POS-030, which is available here). I don’t have a video on the POS-030, but the concept is virtually identical to the FL-335. The keen-eyed among you, though, will have realized a flaw in the concept of a proof of service by mail: “Just because I drop it in the mail, doesn’t mean it gets there. What happens if it gets lost in the mail?” There are two answers to this excellent question. First, the US Mail does occasionally lose items. Moving mail in the scale that the US Postal Service does involves a ton of human labor and machines so mistakes and accidents do happen. In my experience, though, lost mail happens far less often than people claim. In the vast majority — I would say 95% of the time — of instances, legal documents that are served by mail do arrive as they are supposed to....
by Andy Chen | Apr 16, 2021 | California, Vehicle Code
In this post, I’m going to discuss California law regarding automotive window tint. Many vehicles are sold new with window tint from the manufacturer. If your particular vehicle did not come with window tint originally, you can also, obviously, get tint installed aftermarket or do the tinting yourself. If you’re in this second category of car owners — in other words, your vehicle was not sold brand new with tinted windows and you’re getting it installed — you need to make sure your tint complies with California law. If it doesn’t, then you could get pulled over by law enforcement officers just because you have illegal tint. If you’re interested in it, the reason why you can be pulled over just for illegal tint has to do with Probable Cause and the 4th Amendment to the US Constitution. As I’ll explain below, window tinting on automobiles in California is covered by the California Vehicle Code. There are a variety of court cases in California that hold that any act which appears to violate the California Vehicle Code — including burned out tail lights, expired registration, speeding, stop sign violations, etc. — is sufficient to constitute probable cause that would justify a detention by law enforcement officers. Anyway, aside over, the most common scenario — at least in my experience — is that the tint is darker than California law allows so that’s what I’ll go over below. The California law in question here is going to section 26708 of the California Vehicle Code. Section 26708 goes over several things, including where on the windshield you can legally affix items...
by Andy Chen | Mar 29, 2021 | California, Family Law, New York
I live and practice law in California. When it comes to divorces, California is one of nine US states that follow the Community Property system when it comes to dividing property. In theory, community property is a simple idea — namely, the general rules are that (1) whatever the individual spouses acquire on their own prior to the marriage is their own property and is not split up during a divorce, and (2) whatever the individual spouses acquire during the marriage is generally “community property” and, thus, needs to be divided 50/50 in the event of a divorce. To be clear, though, (1) and (2) are just the general rules under the California community property system. There are exceptions under which, for example, an item acquired during the marriage is still the separate property of the spouse acquiring it due to the manner in which the item was acquired. In practice, though, applying the community property system can be quite involved. Over on my Youtube channel, I put out a video a few months back going over some common problems that occur when you try to apply the idea of community property in the real world. Here is the video. If you haven’t seen my Youtube channel, I encourage you to take a look at it as I go over community property as well as various other ideas related to California law also. What I am going to do in this post, though, is try to compare Community Property to the other system — Equitable Distribution — that is in place in the other 41 US states. By the...
by Andy Chen | Aug 29, 2020 | New York, Torts
In this post, I’m going to continue my series of exploring various statutes of limitation for torts under New York law. Previously, I went over statutes of limitation for torts like fraud and wrongful death. In this post, I’m going to talk about one of the lesser known torts, the tort of conversion. The tort of conversion is about interference and specifically interference with plaintiff’s ability to possess an item they have the legal right to possess. In New York, the criteria for conversion are (1) the existence of plaintiff’s possessory right or interest in the item, and (2) defendant’s dominion over that item or interference with it in derogation of plaintiff’s rights. In my admittedly limited research, the New York authority I found for that is a New York Court of Appeals case called Colavito v. New York Organ Donor Network, Inc (2006) 8 N.Y.3d 43, 49. As my first aside, I’ll point out that California also provides for the tort of conversion so it is not specific to New York. In California, the elements for conversion are (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrong act or disposition of plaintiff’s property rights; and (3) damages suffered by plaintiff. The California authority for that — because I care and know that you’re interested — is a California Supreme Court case called Lee v. Hanley (2015) 61 Cal.4th 1225, 1240. A reminder as well that the California Supreme Court and New York Court of Appeals are both the highest state courts in their respective states and, as a result,...
by Andy Chen | Aug 21, 2020 | New York
In this post, I’m continuing my travels through New York’s statutes of limitations. In prior posts, I went over the statutes of limitation for fraud as well as wrongful death. In this post, I’m going to talk about enforcement of money judgments. In more plain language, enforcement of judgments refers to the act of collecting on a judgment (e.g. that defendant pay $50,000 to plaintiff) that a court renders in favor of a winning party in a civil case against the losing party. The statute of limitations for enforcement of judgments refers to the time period within which that collection activity has to take place. In New York, the statute of limitation for enforcement of money judgments is 20 years. If you’re interested — and I know you are — the governing statute here is section 211(b) of New York’s Civil Practice Law and Rules (CPLR). Section 211 states: “On a money judgment. A money judgment is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to enforce it.This presumption is conclusive, except as against a person who within the twenty years acknowledges an indebtedness, or makes a payment, of all or part of the amount recovered by the judgment, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing and signed by the person to be charged. Property acquired by an enforcement order or by levy upon an execution is a payment, unless the person to be charged shows that it did not include...
by Andy Chen | Aug 12, 2020 | California, Criminal law
Today’s post will be short. I’m going to go over the right to have a lawyer appointed for you in a criminal case and how that is handled in California state court. Most of you — at least I hope it is most of you — have heard of the 6th amendment to the US Constitution which says the following: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” (emphasis added) The part I’ve bolded and underlined is where a criminal defendant’s right to an attorney comes from. If you’re familiar with the Miranda Warning — or at least seen it on TV before — that also mentions a criminal defendant’s right to have an attorney. “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” (emphasis added) What this right to counsel means in the real-world, though, can be quite involved. Some...
