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Herb Fox

Herb Fox’s Answers

1,715 total


  • I filed a Civil Harassment Restraining Order against my Husbands Ex girlfriend. Judges response made no sense. Advice needed!

    I fax filed a request for a Civil Harassment Restraining Order against my Husbands ex gf/mother of his child. The judge denied temporary orders and reason being states,"These matters need to be address in the family law case." I do not have a fa...

    Herb’s Answer

    Without knowing more - such as the conduct you are trying to restrain - it is impossible to answer your questions or help you prepare for the hearing. I strongly recommend that you retain - or at the very least consult - a family law attorney to provide guidance and representation.

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  • How to vacate, dismiss, or modify a default judgment restraining order i just learned about?

    About five months ago my then live-in girlfriend got a TRO against me. She promised to not attend the follow-up hearing 30 days later if I moved out and checked myself into rehab, which I did. Since getting out, we have communicated on multiple o...

    Herb’s Answer

    You probably can pursue a Motion to Vacate the order pursuant to Code of Civil Procedure 473. I do not necessarily agree that Family Code section 2122 applies to your situation. But I do agree that you will save alot of time and angst (if not money) by retaining an attorney who handles family law and/or appeals to advise and represent you.

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  • How do I get my case for an appeal moved to a different court?

    I showed at first hearing after submitting a claim or right to possession. This was post Judgment and the only reason he heard my case was based on that the Unlawful Detainer was due to a foreclosure. Yet at hearing he concluded that the three day...

    Herb’s Answer

    I have tried, but I do not understand your question. By definition, an appeal is heard by a different judge than the one who made the initial decision. Are you asking whether the post-judgment order can be appealed?

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  • Can my brother go to jail if he is being sued for a debt in China?

    My brother has a company in CA and he owes $600,000 to many vendors in China. He went to resolve the case but was held and they won't let him go until he pays. Now he got sued by two vendors and they restricted him from leaving the country by a co...

    Herb’s Answer

    You don't state whether your brother is a U.S. citizen or legal resident, or is a citizen of China. If he is a U.S. citizen or legal resident, you should probably contact the U.S. embassy in China for assistance. In any case, you should also retain a Chinese Attorney. There are lawyers in Los Angeles who have expertise in U.S./China business and legal relations, and you might start with a consultation here.

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  • Does an attachment to an email have the same copyright protection as the email itself does

    Need to send a letter to a lawyer requesting case file and itemized list of fees charged against my retainer for the last 18 months and I am currently in Korea with limited access to send a registered letter.

    Herb’s Answer

    If you have a dispute with your attorney over billing or billing practices, by all means send a letter (it does not matter if it is sent via email or regular mail, although registered mail offers more reliability of proving that the attorney received it).
    The letter remains confidential regardless of how you send it, unless you allow third parties (except another attorney) to read or handle it. However, if this matter ends up in a formal attorney-client fee dispute (arbitration or litigation), certain aspects of the attorney-client privilege are waived so that the attorney can defend him or herself.
    I hope this clarifies your rights.

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  • Is appeal in a tenant-landlord case worth it?

    My tenant destroyed spanish tiles in the big great room with cheap rug mats, and admitted to it, have an official affidavit from realtor that confirms the damage and pictures that prove the damage. The cost of refinish was 4000 and since it is irr...

    Herb’s Answer

    Assuming this is a small claims matter, you cannot appeal from the adverse judgment on your cross-complaint. Only a defendant can appeal a small claims judgment.
    Therefore you can appeal the $1,800 award in favor of the tenant (if I understand your question correctly). But that "appeal" is really a whole new trial, with the risk that the new judge awards the tenant even more than $1,800. It could go either way, so you take your chances.
    If this is not a small claims matter, you do have the right to an appeal, but it would be a true appeal, and not a new trial. The appellate panel will review the decision for errors of law, but will not reweigh the evidence, so your odds of winning are probably low.
    Finally, consider this: if you somehow won a $10,000 judgment against the tenant, would you every be able to collect on it? Sometimes a judgment is worth less than the paper it is written on, and that is a factor all persons should consider before engaging in litigation.

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  • Appeals

    I appealed a civil judgment against me. While designating the records, I filed in error with the lower court a copy of the court reporter’s transcripts that does not comply with the requirements of the appellate court (pages consecutively numbered...

    Herb’s Answer

    You can be proactive and contact the clerk to point out the problem and ask how they would like you to resolve the problem, or wait until the clerk sends you a notice. The Courts of Appeals are usually forgiving about such errors and will typically allow you to correct.

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  • I sued in small claims court for the return of a security deposit ($2k). I won the case and won the appeal but he won't pay.

    The case was against the company, which is solely owned by the defendant. I hired a collection agency but they couldn't locate a bank account. How do I get him to pay? Can I file in small claims again for an increased amount/damages? Can I get ...

    Herb’s Answer

    And you are entitled to your court costs in pursuing collections. You might also be able to attach the defendant's personal assets or attach his company's accounts receivable.

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  • I had a civil trial in pro per. Received the reporters transcripts, however, it does not reflect what I said an did. wtf?

    Trial was in in pro per. I am the plaintiff. The defense counselor switched photographs. Not admitted as an exhibit and she sent it to the jury as evidence without my knowledge. But while I was doing my monologue, I took my exhibits, (which h...

    Herb’s Answer

    If you are asking how to "correct" the reporter's transcript, you can file a motion in the court of appeal pursuant to Rule of Court 8.155(c).
    If your argument on appeal is that the opposing attorney engaged in misconduct that resulted in the jury's verdict, I hope that you raised this issue (and the evidence of the misconduct and the prejudice) in a post-trial motion before the trial judge. Absent such a motion, the court of appeal will most likely find that the issue has been waived for appeal purposes. In most situations, the court of appeal expects that a litigant first allow the trial judge to consider and rule on matters such as these, and the court of appeal will most likely not consider new evidence or argument that was not first brought to the attention of the trial court.

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  • What can be done if the movant on an MSJ lies And omits critical documents?

    I'm the plaintiff in a med. Mal. Case, pro per, I know, please don't respond to that. The defense has purposely left out critical papers from their client's medical records, a so called doctor , that prove my case. What is the best step to take.? ...

    Herb’s Answer

    You cannot defeat an msj by accusing the opposing party of "lying" or omitting critical documents. Instead you defeat the MSJ by presenting your own evidence that demonstrates there is a factual dispute that requires a trial where the judge or jury determines who is telling the truth, and that the outcome of that factual dispute will determine who wins the case. In technical parlance, that is called establishing the existence of a "triable issue of material fact." You don't have to prove the facts now; you only need prove that there is a dispute over the true facts.
    In short, stick to the evidence and legal principals governing summary judgment motions Accusing the defendant of lying, etc., at this phase of the case, will get you nowhere. That is what the trial is for.

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