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Herb Fox

Herb Fox’s Answers

1,668 total

  • Where can I find an probono appeal attorney

    I need help finding an appeal attorney

    Herb’s Answer

    The Court of Appeal on Spring Street has a Pro Per Clinic staffed by attorneys who will provide procedural advice and, on occasion, help a party find a pro bono attorney. It is on a walk in basis, but you can call the court to get the dates and hours it is open.

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  • How long does it normally take for a ruling on a statutory writ of mandate?

    Defendants filed a Petition for Writ of Mandate after their motion to quash service was denied. My opposition was filed on July 15. About how long should it take for the Court to reach a decision?

    Herb’s Answer

    Anywhere from a couple of days (which has obviously passed) to several months. There is no statutory deadline and the court will take all the time it wants or needs. The factors range from the complexity of the case, the current workload, and, especially this time of year, staff vacation schedules.

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  • Could a judgment be reversed while the appeal is pending?

    I am a plaintiff in a civil case, the judgment was entered in my favor against the defendant (the bank). The defendant filed a notice of appeal, after the record on appeal preparation is completed the bank filed in the trial court a motion to vaca...

    Herb’s Answer

    This does not add up. There is a jurisdictional (time) deadline for filing (and for the trial court to consider) a motion for new trial or motion to vacate based on newly discovered evidence (which actually is not grounds to"vacate"). The trial court retains jurisdiction to vacate on other grounds (e.g., fraud) but not new evidence, unless, perhaps, the claim is that the evidence was intentionally concealed.
    You should consult with your attorney about an appropriate response.

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  • Will a $1 nominal damage award sustain the essential damage element of fraud when there is no compensatory or punitive award.

    Is anyone able to provide a citation, proving or disproving whether a $1.00 nominal damage award is sufficient to sustain the essential damage element of fraud (intentional misrepresentation) when there is no compensatory or punitive damage award....

    Herb’s Answer

    Take a look at Engle v. City of Oroville (1965) 238 Cal.App.2d 266, 274 [47 Cal.Rptr. 630, 635-36]: in a tort action “nominal damages to vindicate a technical right cannot be recovered * * * where no actual loss has occurred”
    It appears that the rule is different for a breach of contract cause of action, however,
    I cannot advise how these rules apply to your case, of course, and the rule cited above does not necessarily mean you can win an appeal. Much more information would be needed to formulate an opinion as to the merits of an appeal.

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  • If the courts want to terminate my parental rights, can I appeal it?

    Been involved in a juvenile dependency case since 2013, and I think the Judge wants to terminate my parental rights and I want to know ... Can I appeal this?

    Herb’s Answer

    Yes, you would have the right an appeal, but you cannot "appeal" until the judge issues a decision. Right now your battle is in the dependency trial court, and you must put on your best possible case there. An appeal is not a new trial.
    You have a right to an attorney, and if you cannot afford one, the court must appoint an attorney for you. If you do not have an attorney you need to get one immediately. All of your questions should be addressed to your attorney.

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  • Santa Clara County - Civil Lawsuit: I want to file a denial and request judge to dismiss the case...

    I need your help. I searched a lot online but there are a million forms. Which form will I use to file a denial and to dismiss case? I am being harassed and nothing in the lawsuit is correct. I have proper evidence to file with my denial. Whe...

    Herb’s Answer

    There are many ways to win a dismissal (using the term loosely) but most of them boil down to this: where the plaintiff has no ability to win because the law does not support their claims, even if their facts are true. This means, in short, that your denial of the "facts" - what happened or why it happened - does not win a dismissal; it wins you the right to go to trial. The judge cannot determine what "really happened" without holding a trial.
    There are some exceptions to this rule (such as something called an anti-SLAPP motion, which applies only in particular circumstances).
    As for your second question, the prevailing party is entitled to an award of costs (e.g., filing fees) and, in some circumstances, attorney fees. But you first need to win the lawsuit. This right to recover does not cover other expenses such as lost time from, work, but you may have grounds for a second lawsuit for "malicious prosecution" to recover those losses - but again, you first need to win the current lawsuit.
    I strongly suggest that you retain an attorney if you can afford one; if not, consider spending a couple of hundred dollars on a one or two hour consultation to get some professional guidance on the best way to proceed and what rights you may have.
    Best of luck to you.

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  • When filing a civil appeal with the appellate court, are you bound by the original appeal?

    I filed a limited civil appeal (less than $25,000) in the superior court and lost. I am now appealing it to the appellate court as an UNlimited civil appeal. Am I allowed to do that OR does the appeal have to be limited because the superior court ...

    Herb’s Answer

    You do not have a right to "appeal" the limited jurisdiction appeal decision to the state court of appeal. There is instead a procedure to certify the limited jurisdiction appeal to the state court of appeal, but whether to accept that case is entirely discretionary with the state court of appeal. I recommend that you consult with an appellate attorney or do your own research on the procedures for certifying or transferring a limited jurisdiction appeal.

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  • Appeal on a court orderred custody case that I won on 7/10/2015

    I just went to court due to me spanking my child this one time, no history of any violence has ever been recorded in our past. My daughter is 11 years old and I have had physical custody of her for a long time with visitations to mom every other w...

    Herb’s Answer

    First of all, based on what you posted, i would not panic. The court of appeal is not likely to change the order, and nothing will likely change for 12 to 18 months. The notice of appeal does not, by itself, change or suspend the order.
    Second if you have an attorney. you should ask your attorney these questions. If your attorney feels a need to consult with appellate counsel - which might be prudent depending on your attorney's experience - he or she can do so. See, e.g,
    Take a deep breath - appeals are more difficult than the parties hope. You are (probably) okay,

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  • Filing APP-004 form with the Appellate Court

    The form APP-004 form sent by the appellate court includes item B in part II (page 2) that asks if an appeal is entitled to calendar preference/priority. Can one use extra 3 pages or so to articulate the argument in this matter? And if ye...

    Herb’s Answer

    You appear to misunderstand the bases for calendar preference. It is, generally statutory in nature. That you are harmed by the order or judgment that you are appealing is not a basis for preference, because all appellants are harmed by the order they are appealing from.
    I would not deter you from asking for preference - it could reduce the appeal time from from 18 to 24 months to, perhaps, 12 to 15 months. But I would not hold hope.
    Best of luck to youl

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  • Is there a law again harassing/bullying someone with a mental disorder?

    what if the person being harassed/bullied tried to commit suicide because of it.

    Herb’s Answer

    This is a serious matter that may cross over between potential civil liablity and criminal conduct. The victim might be entitled to a restraining order that the police will enforce, and might also be entitled to monetary damages.
    I recommend that you (you do not describe your relationship to the victim) consult with a civil attorney who handles personal injury and/or civil harassment law, and file a police report.
    I am also changing your category - this has nothing to do with defamation or slander

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