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Frank Wei-Hong Chen

Frank Chen’s Answers

24,134 total


  • Are plaintiffs generally only allowed one sustained demurrer?

    Meaning: If a demurrer is filed against a complaint that was amended after the first demurrer is it customary for the judge to grant leave to amend a second time?

    Frank’s Answer

    The court will only grant leave to further amend if the plaintiff can demonstrate how the complaint can be further amended in order to state a cause of action. The burden is on the plaintiff to demonstrate in what manner he/she could amend the complaint, and how the amendment would change the legal effect of the pleading. (Satten v. Webb (2002) 99 Cal.App.4th 365, 374; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In the absence of some representation to the contrary, it can be presumed that the plaintiff has already stated his/her side of the controversy as strongly and as favorably as all the facts known to him or her would permit. Note that under the new law which became effective January 1, 2016, a complaint can only be amended three times without court approval. Also, the new law requires the parties to meet and confer before filing a demurrer. See my legal guide at:
    http://www.avvo.com/legal-guides/ugc/meet-and-confer-requirement-before-demurrer-in-california

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  • Is there any established case law I can quote about what "approximate time" means?

    New property management company (with terrible Yelp reviews) posted notice today "to inform you that we have scheduled a bi-annual apartment inspection (smoke detectors, necessary apartment maintenance) for your community on (two days from today) ...

    Frank’s Answer

    There are no reported cases regarding California Civil Code section 1954 specifically addressing the "approximate time" issue, nior what is meant by "normal business hours". (Dromy v. Lukovsky (2013) 219 Cal.App.4th 278, 285 [161 Cal.Rptr.3d 665].) However, based upon your description of the notice you received, the property manager does have the right to enter and the description of the date, time, and purpose of entry appear to be adequate under Civil Code section 1954, subdivision (d)(1).

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  • My question is can they include any unknown or unnamed occupants if they did not include them in the initial complaint?

    The condo I rent was foreclosed on and the new owner served an unlawful detainer complaint on the former owners only. They did not designate any "Doe" Defendants. Now they are requesting for entry of default against the named defendants and all un...

    Frank’s Answer

    Yes, if the plaintiff in the unlawful detainer action served a blank Prejudgment Claim of Right to Possession along with an extra copy of the Summons and Complaint for Unlawful Detainer, the plaintiff can seek entry of default against All Other Occupants. It is not necessary to name "Doe" defendants. See:
    http://www.dca.ca.gov/publications/landlordbook/appendix1.shtml

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  • What motions could be brought post-judgment concurrent with an appeal? Motion for new trial, JNOV, Void Judgment?

    What motions could be brought post-judgment concurrent with an appeal? Motion for new trial, JNOV, Motion to Vacate a Void Judgment, Motion to Vacate a Default Judgment and Motion to Vacate a Judgment and enter another judgment?

    Frank’s Answer

    You do not indicate whether the judgment was a default judgment (wherein the defendant made no appearance) or a judgment following a civil trial. Assuming you are referring to a superior court case (and not a small claims court case), if the judgment resulted from a court trial or jury trial, you can file a motion for judgment notwithstanding the verdict or a motion for new trial, but you cannot "concurrently" file any post judgment motion with a notice of appeal. The taking of an appeal deprives the trial court of jurisdiction. (Gold v. Superior Court of Marin County (1970) 3 Cal 3d 275; CCP Section 916(a).)

    If you file a post judgment motion, make sure you comply with California Rules of Court, Rule 3.2231.

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  • What is the 3 day notice time; is it from date on paper or date delivered?

    I paid rent early and the landlord loses the check. They said they mailed it to me due to an issue on the 2nd and I never received it. No word from them directly that anything was wrong. They issue a 3 day notice to pay or quit left on our door...

    Frank’s Answer

    In California, there are 3 ways to serve the notice to pay rent or quit: personal service, substituted service, and posting and mailing ("nail and mail") service. The three days commence from the date of service, not the date indicated on the notice itself. To count the days in the 3-day notice period: The first day is the day after the notice is served. Then count every day on the calendar, including weekends and holidays. If the last day of the notice period falls on a holiday or weekend, then the notice period ends the next business day.

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  • In SUPERIOR COURT OF CALIFORNIA What is the meaning of Documents Filed (Filing dates listed in descending order)

    Order (GRANTING ATTORNEY'S MTN TO BE RELIEVED AS COUNSEL; ) Filed by Attorney for Plaintiff/Petitioner. 04/11/2016 Conference-Case Management(2) OSC RE: DISMISSAL;)

    Frank’s Answer

    This appears to be the entry from the court's online civil case summary. The court granted the plaintiff's motion to be relieved as counsel for plaintiff, and the former attorney for the plaintiff filed the order to be relieved as counsel. On April 16, 2016, there will be a hearing regarding two items. First, a Case Management Conference pursuant to Rule 3.724 of the California Rules of Court, and second, a hearing on the Court's Order to Show Cause Regarding Dismissal. At the Case Management Conference, the case is typically set for trial and.or referred to mediation. At an OSC, the judge will require the plaintiff to show why the case should not to be dismissed. This might be because the plaintiff is an entity such as a corporation or LLC, which must be represented by an attorney in litigation. An entity cannot represent itself in pro per. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730.) Another possible reason for the OSC is for plaintiff's failure to diligently prosecute the case.

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  • If my UD demurrer is denied, can I file a new or amended demurrer on new grounds? Can I combine it with a motion to strike?

    I have a Unlawful Detainer demurrer hearing scheduled for this week based on a defect in the 3-day notice. I just noticed that the "landlord" suing me is not really the owner of the property, the property is owned by a cancelled LLC, and the attor...

    Frank’s Answer

    If the court overrules your demurrer, most likely the court will also order you to file an answer within 5 days. If so, you will not be allowed to file another demurrer, nor a motion to strike. However, if the court sustains your demurrer, the plaintiff will have to amend the complaint, in which case you will have five days to respond to the first amended complaint.

    In California, a motion to strike complaint is technically not permitted in an unlawful detainer case. See California Code of Civil Procedure section 1170 (“On or before the day fixed for his appearance, the defendant may appear and answer or demurrer.”) and Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033, 1035 (“A motion to quash service is the only method by which the defendant can test whether the complaint states a cause of action for unlawful detainer and thereby, supports a five-day summons.” Moreover, a motion to strike cannot be used to challenge the truth of the allegations of the unlawful detainer complaint.

    The reason for the verification on a complaint for unlawful detainer is not the signature or the identity of the party doing the verification. The reason for the verification is to plead facts in the complaint or separate affidavit showing the action has been commenced in the “proper court” and “proper court location” for the claim involved, otherwise the action is subject to dismissal. Cases hold that a mere “technical defect” in the verification does not render it insufficient. (Sheeley v. City of Santa Clara (1963) 215 Cal.App.2d 83, 86.) “A verification may be upheld although signed by the party's attorney, rather than by the party. The mistake is a matter of ‘form’ rather than ‘substance.’” (Soltani-Rastegar v. Sup.Ct. (Brinzo) (1989) 208 Cal.App.3d 424, 428.)

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  • How to File a Civil Lawsuit

    How do you file a civil lawsuit without a lawyer? What are the steps?

    Frank’s Answer

    To file a small claims lawsuit, you can find information online at:
    http://www.courts.ca.gov/selfhelp-smallclaims.htm

    However, to file a discimination lawsuit, there aren't ready-to-use "forms" or guides. Moreover, it is quite likely you will need to first file an administrative claim under federal or California law. See, for example:
    http://www.eeoc.gov/federal/fed_employees/lawsuit.cfm
    http://www.dfeh.ca.gov/Publications_FEHADescr.htm

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  • Can an employer claim ownership to anything I produce anywhere/anytime while I'm employed with them?

    I'm a software engineer about to take a job in CA as a FTE, and the contract has a clause that says anything I do is owned by the company, both on/off company time and on/off company property. So if I'm sitting at home on my personal computer on a...

    Frank’s Answer

    It is both reasonable and enforceable if you agree to the contract containing this provision. See California Labor Code sections 2870-2872. It would be prudent for you to consult with an employment attorney before signing such an employment agreement. Perhaps the employer has a side-project policy and might be willing to agree to a limited intellectual property assignment. For a general discussion regarding the concept of "works made for hire" under the U.S. Copyright Act, see:
    http://copyright.gov/circs/circ09.pdf

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  • Do I need to delineate the changes when under a court order to amend? Can I amend it from "scratch"?

    The defendants' demurrer was sustained in its entirety with plaintiff given 20 days to amend. One problem is that the complaint is "unintelligible". When amending the complaint is it permissible now to make it "intelligible". The court told me whi...

    Frank’s Answer

    When the court sustains a demurrer with leave to amend, it is not necessary for the plaintiff to indicate the specific changes in the amended complaint. In other words, the requirements of California Rules of Court 3.1324 (for a motion for leave to amend) do not apply.

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