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Frank Wei-Hong Chen

Frank Chen’s Answers

24,134 total


  • Is CA Sup. Court order final when judge states ruling in court, text posted on dckt, order posted, ntc of entry of order posted?

    Confused by when a California Superior Court's orders are final and appealable.

    Frank’s Answer

    First of all, you should know that not all orders are appealable. Assuming that the order in question is appealable, the time allowed to file a Notice of Appeal depends on whether this is a limited jurisdiction or an unlimited jurisdiction case, and whether there was a notice of entry of judgment and, if so, when it was served or whether there was a timely motion (for new trial, to vacate the judgment, for judgment notwithstanding the verdict, or for reconsideration) that, when denied, extends the time.

    Judgment is entered when the court clerk file-stamps the appealable order or judgment. The court clerk or any party may provide notice that the judgment was entered. The clerk may do so by serving a Notice of Entry of Judgment (or Order) or a copy of the judgment or order to the person filing the Notice of Appeal; any party may provide Notice of Entry of Judgment by serving each of the other parties with either (1) a Notice of Entry of Judgment or (2) a file-stamped copy of the judgment.

    In a limited jurisdiction superior court case, if either the clerk or the party has served the notice of entry, the Notice of Appeal must be filed within 30 days of the date of either (1) the court clerk’s serving or (2) the party’s serving a copy of the judgment, minutes, or Notice of Entry of Judgment, whichever comes earlier. (See California Rules of Court, Rule 8.822.) In an unlimited jurisdiction civil case (i.e., involving an amount over $25,000 ), a notice of appeal must be filed by the earliest of the following dates: (1) 60 days after either the trial court clerk or the other side serves you with notice of entry of judgment or alternatively, a copy of the judgment stamped "filed," or (2) 180 days after the entry of the judgment.

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  • Instead of doing a 30 Day Pay or Quit, can I elect just to end the tenancy and take a loss?

    I have this single family house that I am renting out. The tenant took occupancy of the place on the 3rd of Dec., 2015 and has already been late with January's rent and I don't think this person will be able to meet the rent in February due to fin...

    Frank’s Answer

    There is no guarantee that the tenant will actually move out if you provided a 30 day notice pursuant to the terms of your lease or rental agreement. In such a situation, a landlord would normally serve a 3 day notice to pay or quit, followed by an unlawful detainer (eviction) lawsuit. Otherwise, the tenant will most likely delay in moving out or paying.

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  • What's my recourse. Do I take him to small claim or get an attorney and take him to civil court.

    I had my house remodel. the so called "contractor" was refer by a friend. Based on the friend I trusted the contractor. I didn't check his contractor status. The remodeling is about 85% done. He requested it for final payment, because he promise h...

    Frank’s Answer

    You can sue in small claims court if the amount in controversy is $10,000 or less. Otherwise, you can bring a lawsuit in the superior court (either as a limited jurisdction case if the amount in controversy is less than $25,000 or an unlimited jurisdiction case), but it will probably likely take 12 to 24 months before you obtain a civil money judgment. In comparison, you can typically obtain a small claims court judgment within 60 days.

    In California, it is illegal for an unlicensed person to perform contracting work on any project valued at $500 or more in labor and materials. California Business & Professions Code section 7031(a) prevents an unlicensed contractor from collecting on debts owed to them by consumers under contracts due to their unlicensed status. This means that a court will not enforce the illegal contract.

    Furthermore, California Business & Professions Code section 7031(b) gives consumers who have contracted with unlicensed contractors the ability to sue for restitution or reimbursement of all monies paid to the unlicensed contractor for "any act or contract".

    In short, an unlicensed contractor will not only be unable to collect against the owner but may actually be liable to pay back to the owner every penny that was already paid him. This law applies even if the unlicensed contractor completes the job and even if the work performed is otherwise perfect.

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  • The hearing on a motion is 2/16/2016. When is my opposition due considering holidays?

    There are two court holidays this month. I was served with a motion with the hearing on 2/16/2016. When must my opposition be personally served on the opposing party? I was reading CRC 1.10(b) and was figuring I had two extra days due to the two h...

    Frank’s Answer

    If the motion hearing is set for 2/16/2016, the opposition must be served and filed no later than 2/1/2016. Pursuant to Code of Civil Procedure section 1005(c), service of the opposition must be made by personal delivery, facsimile transmission, express mail, or other means reasonably calculated to ensure delivery to the other party not later than the close of the next business day after the time the opposition is filed.

    You do not indicate the type of motion. Generally speaking, if the notice of motion was served by mail on 1/21/2016, it most likely fails to comply with Code of Civil Procedure section 1005(b), which requires 16 court days notice, plus 5 calendar days for mailing.

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  • Is a meet and confer required before I bring a motion for extension to respond to discovery?

    Defendant is refusing to provide me with my requested 2-week extension. Although I already obtained a 30-day extension from him, I was served with a voluminous 5-set of discovery and I need more time to respond. They are refusing to provide me wit...

    Frank’s Answer

    What you are really seeking is a motion for protective order, which does require meeting and conferring before filing. See CA Code of Civil Procedure §2017.020.

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  • What kind of proof do I need to prove they haven't paid rent or is the burden of proof on them to prove they have paid?

    I'm evicting a couple that rents a room for me. They are on hud. I believe to terminate their lease (month to month) without cause is 90 days, with cause is 60 days. I'm giving them a 60 day notice for nonpayment of their portion of the rent that...

    Frank’s Answer

    As the plaintiff, you have the burden to prove that the tenant did not pay the full amount of rent. Your oral testimony, especially when it can be corroborated by documentary evidence, is what you need to present at the unlawful detainer trial to meet your burden of proof. The tenant as the defendant has the burden of proving defenses such as full payment of rent, defective notice, etc.

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  • Civil demand letter should I pay it?

    On January 4th I was mailed a civil demand letter from walmart asking for about $300. In the letter I was told I was given 20 days or else I would be looking at a lawsuit and much more other fines. Technically the due date was the 24th but it is t...

    Frank’s Answer

    No. A civil demand is not a debt and you would only have to pay it if they successfully sued you. The likelihood of that happening is extremely small. Paying or not paying the civil demand will have no effect on any criminal actions which might be brought against you.

    Learn from your mistake, and don't shoplift anymore.

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  • Is a "Motion for Severance" order immediately appealable in Superior Court of California?

    I am a "pro se" party in a "David v. Goliath" Superior Court of California case.

    Frank’s Answer

    No, such an order is not an appealable order as of matter of right. The remedy is a petition for writ of mandate, but the California Court of Appeal rarely grants such petitions.

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  • I have a 60 day eviction notice to move out owner plan to sell I don't have money for another place can I fight it ?

    Never been late on rent never bother the landlord for anything my dad is disabled had a stroke I have 3 kids 9,7,2

    Frank’s Answer

    You probably cannot win an eviction unless you have an unexpired lease. In California, a landlord can end a periodic tenancy (month-to-month) by giving the tenant proper advance written notice. The landlord must give sixty (60) days written notice that the tenancy will end if every tenant has lived in the rental unit for a year or more. (Civil Code section 1946.1(b).) The 60 day notice has nothing to do with being current on the rent. The other reasons you mention would not constitute grounds to fight an eviction.

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  • Is the notice defective , and can I use it as a defense in a unlawful detainer case (motion to quash) ?

    I am residing in a close friends home in California . unfortunately , my friend passed away on 11/03/15 . he left his home to his 3 daughters . his daughters posted a 30 day notice to vacate the property on 11/01/15 , in which they named themselve...

    Frank’s Answer

    As an agent for the owner, the notice would not be defective for that reason alone. If you have been a tenant for more than 12 months, however, you are entitled to a 60 day notice. In California, a landlord can end a periodic tenancy (month-to-month) by giving the tenant proper advance written notice. The landlord must give sixty (60) days written notice that the tenancy will end if every tenant has lived in the rental unit for a year or more. (Civil Code section 1946.1(b).)

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