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Frank Wei-Hong Chen

Frank Chen’s Answers

23,765 total

  • Can a non lawyer office assistant serve defendants for federal lawsuit?

    I am a defendant in a federal lawsuit and I was just served with the summons/complaint by a legal assistant from the plaintiff's attorney's office. Is this valid service or does the service need to be by a certified messenger service or sheriff's...

    Frank’s Answer

    Yes, certainly. Anyone over the age of 18 who is not a party to the lawsuit can serve the summons and complaint. Therefore, this alone would not invalidiate the service.

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  • Can a landlord just tell you that they are going to conduct a home inspection

    also a pest inspection

    Frank’s Answer

    Yes, provided you received advance notice. California law states that a landlord can enter a rental unit only for the following reasons:
    -- In an emergency.
    -- When the tenant has moved out or has abandoned the rental unit.
    -- To make necessary or agreed-upon repairs, decorations, alterations, or other improvements.
    -- To show the rental unit to prospective tenants, purchasers, or lenders, to provide entry to contractors or workers who are to perform work on the unit, or to conduct an initial inspection before the end of the tenancy.
    -- If a court order permits the landlord to enter.
    If the tenant has a waterbed, to inspect the installation of the waterbed when the installation has been completed, and periodically after that to assure that the installation meets the law's requirements.
    (See Civil Code Section 1954).

    The landlord must give the tenant reasonable advance notice in writing before entering the unit, and can enter only during normal business hours (generally, 8 a.m. to 5 p.m. on weekdays). The notice must state the date, approximate time and purpose of entry.

    However, advance written notice is not required to respond to an emergency, or if the tenant is present and consents to the entry at the time of entry. Advance written notice is also not required if the tenant and landlord have agreed that the landlord will make repairs or supply services, and have agreed orally that the landlord may enter to make the repairs or supply the services. (But the agreement must include the date and approximate time of entry, which must be within one week of the oral agreement.)

    The landlord or agent may use any one of the following methods to give the tenant written notice of intent to enter the unit. The landlord or agent may personally deliver the notice to the tenant; or leave the notice at the rental unit with a person of suitable age and discretion; or leave the notice on, near or under the unit's usual entry door in such a way that it is likely to be found; or mail the notice to the tenant. The law considers 24 hours' advance written notice to be reasonable in most situations.

    Pursuant to California Civil Code Section 1954(c), a landlord cannot abuse the right of access allowed by these rules, or use this right of access to harass or repeatedly disturb the tenant. Also, the law prohibits a landlord from significantly and intentionally violating these access rules to attempt to influence the tenant to move from the rental unit. If a landlord's violation of these rules was significant and intentional, and the landlord's purpose was to influence you to move from the rental unit, you can sue the landlord in small claims court for a civil penalty of up to $2,000 for each violation. (Civil Code Section 1940.2(b).)

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  • I have a guy suing me and his attorney is telling me I have to go to his office for a deposition is this legal for him to ask me

    It's a business lawsuit over $50k

    Frank’s Answer

    Yes, it is legal if certain requirements are met. If you are a defendant in a lawsuit in California, the plaintiff can notice the taking of your deposition 20 days after you have been served with the summons and complaint. So the question is whether you have been served or not. If not, the plaintiff's attorney cannot compel your deposition because the court does not have personal jurisdiction over you.

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  • I was served an unlawful detainer I was looking through it I noticed that the landlord altered the 3day notice

    The copy which she has given to the court has an extra signature which isn't on the one she served me. Even her own signature is different from mine.can she do that?and in the 3 day notice there is no reference as to where I would deliver the paym...

    Frank’s Answer

    A 3 day notice to pay rent or quit does not need to be signed, so the irregularity in the signatures probably makes no difference. However, the notice must indicate where and when you can pay the rent. (Code of Civil Procedure section 1161). Therefore, it is likely the 3 day notice is defective. It is unclear from your post whether you ever paid rent, if you have no address at all and no copy of the lease. You will need a tenant's attorney to represent you if you want to successfully defend this unlawful detainer case.

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  • Can my employer charge me for accepting a counterfeit bill?

    I'm a waiter, didn't know it was fake, there is no work policy that says that at the restaurant, my boss says I owe $50

    Frank’s Answer

    In California, taking money from employees for "mistakes" they make is illegal and could subject the employer to penalties. The leading case on this issue is the Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d 319, in which the California Supreme Court essentially held that employers may not hold employees accountable for losses, shortages, or breakage occasioned by simple employee negligence or error. These are deemed to be a routine cost of doing business which cannot be passed along to employees. Moreover, an employer may not unilaterally take money out of an employee’s paycheck to pay for such losses shortages, or breakage.

    Under California law, your employer cannot legally make such a deduction from your wages if, by reason of mistake or accident a cash shortage, breakage, or loss of company property/equipment occurs. California courts have held that losses occurring without any fault on the part of the employee or that are merely the result of simple negligence are inevitable in almost any business operation and thus, the employer must bear such losses as a cost of doing business. (For example, if you accidentally drop a tray of dishes, take a bad check, or have a customer walkout without paying a check, your employer cannot deduct the loss from your paycheck.)

    There is an exception to the foregoing contained in the Industrial Welfare Commission Wage Orders that purports to provide the employer the right to deduct from an employee’s wages for any cash shortage, breakage or loss of equipment if the employer can show that the shortage, breakage or loss is caused by a dishonest or willful act, or by the employee’s gross negligence. What this means is that a deduction may be legal if the employer proves that the loss resulted from the employee’s dishonesty, willfulness, or grossly negligent act. Under this regulation, a simple accusation does not give the employer the right to make the deduction. The DLSE has cautioned that use of this deduction contained in the IWC regulations may, in fact, not comply with the provisions of the California Labor Code and various California court decisions. Furthermore, DLSE does not automatically assume that an employee was dishonest, acted willfully or was grossly negligent when an employer asserts such as a justification for making a deduction from an employee’s wages to cover a shortage, breakage, or loss to property or equipment.

    California Labor Code section 224 clearly prohibits any deduction from an employee’s wages which is not either authorized by the employee in writing or permitted by law, and any employer who resorts to self-help does so at its own risk as an objective test is applied to determine whether the loss was due to dishonesty, willfulness, or a grossly negligent act.

    If your employer made such a deduction and it is later determined that you were not guilty of a dishonest or willful act, or grossly negligent, you would be entitled to recover the amount of the wages withheld.

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  • Default judgement related to car accident, how would that impact my green card/job application?

    Recently, I got a letter from a law firm representing the insurance company saying that their client has obtained a favorable default judgement against me and I need to settle the debt right away. I am in the process of applying for green card, an...

    Frank’s Answer

    A civil judgment for monetary damages won't not adversely impact your application for adjustment of status with USCIS. A civil judgment normally does not matter for purposes of applying for a job, unless the job entails handling money or other responsibilities for which excellent credit is required. If you were not properly served with a summons and complaint which resulted in the default judgment, then the proper procedure is to file a motion to set aside default and to vacate default judgment pursuant to CA Code of Civil Procedure section 473.5.

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  • Can a landlord force us, a retail tenant, to allow construction in our space for a new tenant next door?

    So we have an established business and the space next to us just got a new tenant. The new tenant is installing a bathroom but needs to dig inside our space to connect to the water line.

    Frank’s Answer

    Most likely yes. However, one would need to review your commercial lease to properly advise you.

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  • I sold new homes for a developer in CA. When I was terminated I had 10 homes in escrow.

    These homes will not close escrow for about 120 days. Developer only pays on homes that close within 30 days of termination.

    Frank’s Answer

    You haven't asked a specific question, and moreover, there is insufficient information in your post. This is a public forum for general advice. With potentially so much commission money at stake, you should defintely consult with a local attorney to ascertain wherther you have a viable claim for compensation against the developer.

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  • Should I try to get back rents paid after finding that studio apartment I'm renting is not legal?

    I was told yesterday by L.A. building inspectors that the studio-apt I've rented the past 18 months is not registered ~ thus illegal. It's now the 22nd. and rent is due on the 1st. Assuming I'm no longer required to give 30 days notice, would this...

    Frank’s Answer

    Not registered with RSO is not the same thing as illegal. Unless the building is being "red tagged" this would not be considered constructive eviction. If the apartment were illegal, then under the case of Gruzen v. Henry (1978) 84 Cal.App.3d 515, the landlord is not entitled to collect or request any rent. If the landlord were trying to evict you, you might be entitled to relocation assistance. If you are voluntarily moving out, you would not. A landlord (owner of the rental unit) or manager (the person who signs the rental agreement or lease on the owner's behalf) must give the tenant a copy of the lease or rental agreement within 15 days after the tenant signs it, pursuant to California Civil Code section 1962(a)(4). Specifically, California Civil Code section 1962 provides as follows:

    "(a) Any owner of a dwelling structure specified in Section
    1961 or a party signing a rental agreement or lease on behalf of the
    owner shall do all of the following:

    (1) Disclose therein the name, telephone number, and usual street
    address at which personal service may be effected of each person who

    (A) Authorized to manage the premises.
    (B) An owner of the premises or a person who is authorized to act
    for and on behalf of the owner for the purpose of service of process
    and for the purpose of receiving and receipting for all notices and

    (2) Disclose therein the name, telephone number, and address of
    the person or entity to whom rent payments shall be made.
    (A) If rent payments may be made personally, the usual days and
    hours that the person will be available to receive the payments shall
    also be disclosed.
    (B) At the owner's option, the rental agreement or lease shall
    instead disclose the number of either:
    (i) The account in a financial institution into which rent
    payments may be made, and the name and street address of the
    institution; provided that the institution is located within five
    miles of the rental property.
    (ii) The information necessary to establish an electronic funds
    transfer procedure for paying the rent.

    (3) Disclose therein the form or forms in which rent payments are
    to be made.

    (4) Provide a copy of the rental agreement or lease to the tenant
    within 15 days of its execution by the tenant. Once each calendar
    year thereafter, upon request by the tenant, the owner or owner's
    agent shall provide an additional copy to the tenant within 15 days.
    If the owner or owner's agent does not possess the rental agreement
    or lease or a copy of it, the owner or owner's agent shall instead
    furnish the tenant with a written statement stating that fact and
    containing the information required by paragraphs (1), (2), and (3)
    of subdivision (a). "

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  • 45 (?) Day Notice to Move Out?

    Sent my landlord a termination notice for September 22. I have a 45 day move out clause so I sent notice way in advance of that. She has a termination clause stating "notice as provided by law." Apparently she got confused and used a 30 day form,...

    Frank’s Answer

    If your lease or rental agreement requires you to provide 45 days notice and your landlord served you with a 30 day notice to terminate, it would probably not constitute retailatory eviction. If you did not move out within the 30 days, the landlord could file an unlawful detainer lawsuit against you, and you could raise the defective notice issue as an affirmative defense. The unlawful detainer lawsuit will probably take 45 days to process, which may give you sufficient time. However, it is best to avoid having any unlawful detainer lawsuit filed against you, so you should probably retain a tenant's attorney to advocate for you on this one.

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