Skip to main content
Frank Wei-Hong Chen

Frank Chen’s Answers

24,128 total


  • Can a new cause of action be commenced based on the underlying events of already adjudicated case?

    I have sued the defendant in small claims for trespass to chattel. Lost. May I sue him (in either small claims of civil) for violation of statute and fraud arising out of the same event? The civil damages allocated under the statute are calculated...

    Frank’s Answer

    No. Res judicata, or "claim preclusion", prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. California’s res judicata doctrine is based upon the primary right theory which provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. The violation of a single primary right gives rise to a single cause of action, even with multiple legal theories. The prior final judgment on the merits not only settles issues that were not actually litigated, but also every issue that might have been raised and litigated in the first action. It also precludes litigation of the same cause of action on a different legal theory or for different relief. (Lincoln Property Co., N.C., Inc. v. The Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 912-913.)

    See question 
  • Calendar or Court Days? Start Counting when?

    The superior court gave me 20 days to amend a civil complaint. I take that to mean 20 calendar days, but do I began counting the day after the tentative ruling or the day after what would have been the hearing date had the ruling been contested?

    Frank’s Answer

    Yes, calendar days. A tentative ruling is merely tentative. The date of the ruling (which is normally the date of the hearing, but if there is no hearing, then it is the date of the court's order) is the date used to calculate the 20 days. To determine the deadline, the first day after that date is day 1, and so forth.

    See question 
  • Need to serve landlord with civil lawsuit paperwork

    How can I serve my landlord with court papers with only P.O. box I need to serve landlord with civil lawsuit papers , but do not have an address , only a P.O. box, and from what I gather, this person lives on a boat at the local marina

    Frank’s Answer

    You cannot serve a summons and complaint to a post office box. You need to ascertain the physical address of the defendant, either by hiring a private investigator, an attorney with access to public records, or by mailing a request for boxholder information needed for service of process to the Postmaster of the city/state where the post office box is located:
    http://napps.org/uploads/docs/ReqAddressChange.pdf

    Note that it is possible to serve a summons and complaint via mail if the landlord signs the Notice and Acknowledgment of Receipt form:
    http://www.courts.ca.gov/documents/pos015.pdf

    Also note that regardless of the method of service, someone other than yourself (a party to the lawsuit) must serve the summons and complaint.

    See question 
  • In a settlement agreement, if the defendant fails to pay the plaintiff the considerations it was promised (x dollars), does that

    In a settlement agreement, if the defendant fails to pay the plaintiff the considerations it was promised (x dollars), does that mean there is a breach of contract? Does that also mean the contract is void? I broke my leg while working for my empl...

    Frank’s Answer

    Yes, it would typically constitute a breach of contract. If there was pending litigation and the settlement agreement recites Code of Civil Procedure section 664.6, then the court has jurisdiction to enforce the settlement. Otherwise, your recourse would be to sue for breach of contract. However, as my colleague notes, your remedies might be limited under workers compensation law if you broke your leg while working for the employer.

    See question 
  • When should I mail my Response to Request for Production of Documents? CCP 1013(a) is confusing.

    I have a Response to Request for Production of Documents due in a family law case [filed in San Francisco Superior Court ] on February 19, 2016. I would like to serve my Response by mail. I would like to know if I need to mail it on February 19, 2...

    Frank’s Answer

    If you are serving the responses by mail, you need to mail the responses on the due date (February 19). CCP 1013(a) gives you five extra calendar days to respond if the requests were served upon you via mail.

    See question 
  • My question is what does writ returned mean? and why did a receive a check?

    So I got sued in court a couple years ago and got my wages garnished. I recently got a check for 50.71 dollars from County of Sacramento civil bureau stating is a refund (my case in California) for the civil sue. I searched my case and got details...

    Frank’s Answer

    A Writ of Execution expires 180 days after its issuance. After the Writ of Execution has been obtained, the judgment creditor must deliver the original Writ of Execution to the sheriff’s department for the subject county. See CCP §§ 700.140(a), 700.150(a). After the expiration of the 180 days, the sheriff's department returns the writ.

    See question 
  • Suing a California attorney for Breach of Written Contract and Breach of Fiduciary Duty but not Legal Malpractice

    Would the statute of limitations be one year or four years? Is the statute f limitations different when suing an attorney?

    Frank’s Answer

    The statute of limitations for breach of written contract in California is four years. (Code of Civil Procedure § 337.) The statute of limitations for breach of fiduciary duty in California is also four years. (Code of Civil Procedure § 343.) However, the discovery rule applies to actions involving breach of fiduciary duty. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 827.) No, the statute of limitations for breach of written contract and breach of fiduciary duty is the same whether you are suing an attorney or non-attorney, unless you are suing for legal malpractice. California Code of Civil Procedure § 340.6 is the general governing statute of limitations for attorney legal malpractice.

    See question 
  • Is charging deferred interest legal? If so, is there a legal strategy or remedy to have this deferred interest charge waived?

    I have an interest free (deferred interest) loan which was initially at $4,815. I paid the minimum monthly and failed to completely pay it off by the interest free deadline. The lender imposed a $1,700 deferred interest charge on my credit ca...

    Frank’s Answer

    There is a difference between waived interest and deferred interest. Your credit card company must tell you the date by which you must pay off your balance to avoid being charged deferred interest, and that information must appear on the front page of your bill. If so, it is legal for the credit card company to charge you the deferred interest. Deferred interest credit card promotions is a deceptive practice but is legal after the passage of the Credit Card, Accountability, Responsibility and Disclosures (CARD) Act of 2009.

    See question 
  • Are all real estate sales transactions public record ?

    Hello Are all real estate sales and titles public record?

    Frank’s Answer

    A real estate transaction itself is not public record, but any document which is recorded (grant deed, quitclaim deed, interspousal deed, revocable transfer on death deed, deed of trust, easement, power of attorney, liens, and other documents which affect title to or possession of real property) as a result of the real estate transaction becomes public record once the document is recorded with the County Recorder's Office.

    See question 
  • Can my landlord require me to get renters insurance?

    I have been living in my apartment (duplex) for 16 years with a few landlord taking over 7 years ago. This landlord, though courteous enough, has made several obvious attempts to get me to move out. Ranging from raising the insurance over twice th...

    Frank’s Answer

    If you are now a month to month tenant, the landlord can change the terms of your tenancy which could include requiring you to procure renter's insurance. Renter's insurance is inexpensive. I don't see this requirement as being retaliatory or an attempt to force you to move out.

    See question