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Frank Wei-Hong Chen

Frank Chen’s Answers

23,765 total


  • My friend who is on lease was served unlawful det.i was showering sheriff gave him my summons how many days do i have to answer

    im head of household my boyfriend is on lease i was showering last sat 7./18 when sheriff came and asked for me . I was unavailable o he gave boyfriend my summons and handed him hi sown than posted one on door . so when ismy answer due ? 5 days or...

    Frank’s Answer

    I assume both of you are named as defendants? His answer is due 5 days from when he was personally served. Your answer is due 15 days from the date of mailing. There are 5 ways to serve an unlawful detainer in California:

    1) Personal service;
    2) Substitute service;
    3) Mail a notice and acknowledgment of receipt;
    4) Posting and mailing; and
    5) Certified mail

    With respect to substitute service, you can’t use substitute service until the process server tried 2 or 3 times to serve the defendant in person. The law for sub-service is set forth in California Code of Civil Procedure section 415.20(2):

    "If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing."

    A tenant's time to respond to the sub-served summons begins on the date of the MAILING of the summons and complaint.

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  • Do I need an attorney for small claim court?

    I own a nails salon. One of the employee, Maria was doing a pedicure, when the client move his foot, she accidently cut his skin a bit. He bled, and she put on antiseptics solution to prevent infection. He came a week later telling Maria that hi...

    Frank’s Answer

    If you have insurance coverage, you should immediately tender the defense to your insurance carrier. You are not permitted to be represented by an attorney in small claims court in California, but you can hire an attorney to assist you in preparing your defense and your presentation at trial.

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  • For a small courts case (landlord-tenant deposit), does a witness statement need to be in MC-030 declaration form?

    The court clerk with whom I filed the case indicated MC-030 was not necessary for a witness declaration. It would just be a simple word document. Can you please validate for me as I don;t fully trust the court clerks who are not offering legal adv...

    Frank’s Answer

    • Selected as best answer

    In small claims court, the rules of evidence are relaxed. This means the judge can consider witness statements, but the statements ought to be signed under penalty of perjury (which is what MC-030 provides), but the statement does not need to be on the MC-030 form. In fact, the witness statements can even be handwritten. Of course, the best thing would be for the witness to appear in court at the small claims trial.

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  • Hello, if I want to quit my job am I legally obligated to give a written two weeks notice if I never signed a contract?

    I work in a retail store.

    Frank’s Answer

    No, you have no legal obligation to provide 2 weeks advance notice before quitting your job if there is no employment agreement requiring such notice.

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  • Do I need a real estate attorney?

    I currently own a house with my significant other as tenants in common with a 30 year 3.5% rate. I want to remove him from any claim to the house (buy him out) but I do not want to refinance the current loan because of the low rate. What are my b...

    Frank’s Answer

    Yes, you should consult with a real estate attorney to discuss your specific situation. You need to negotiate a buy out of his share. Otherwise, the alternative is to file a lawsuit for partition and sale to force a sale (in which you can be the buyer), but there is no guarantee the lender won't accelerate the loan with the transfer in ownership.

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  • In California can you ask to add causes to or amend a complaint through an ex parte?

    What code of civil procedure dictates what can be done through ex parte? Can you ask to amend a complaint or add causes through ex parte or only through a motion?

    Frank’s Answer

    No, only through a noticed motion or by stipulation of the parties. With regard to ex partes, see California Rules of Court, Rules 3.1200 to 3.1207. An ex parte application for a court order, being an exception to the general requirement of serving a regularly noticed motion under Code of Civil Procedure section 1005, is permitted only in limited circumstances. In every case, the application must make the necessary "affirmative factual showing" to support the particular relief being obtained on an ex parte basis [Cal. Rules of Court, Rule 3.1202c].

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  • Opposing council setting deposition for key witness after their motion for summary judgment.

    The single most important witness in my public sector employment-law case has stated he will testify immediately. Our employer (defendant) is representing the public entity and this witness, and says the witness won't be available for deposition u...

    Frank’s Answer

    • Selected as best answer

    If you are already being represented by an attorney, it would not be proper for anyone on this public forum to second guess your attorney. Generally speaking, an opposition to a motion for summary judgment can include an argument/request that the motion hearing ought to be denied or continued in order for the party opposing the MSJ to conduct the necessary discovery or depositions. See Code of Civil Procedure section 437c, subdivision (h), which provides:

    "(h) If it appears from the affidavits submitted in opposition to a
    motion for summary judgment or summary adjudication or both that
    facts essential to justify opposition may exist but cannot, for
    reasons stated, then be presented, the court shall deny the motion,
    or order a continuance to permit affidavits to be obtained or
    discovery to be had or may make any other order as may be just. The
    application to continue the motion to obtain necessary discovery may
    also be made by ex parte motion at any time on or before the date the
    opposition response to the motion is due."

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  • Civil case and filing default

    If you are filing a default in civil case and judge rejects for errors how many times will he reject until you have to refile the entire case again

    Frank’s Answer

    The clerk rejects requests for entry of default, not the judge. There isn't a set limit on the number of attempts you have to get it right. Even attorneys will get their request for entry of default rejected more than once. The answer really depends upon whether the mistake causing the rejection is correctable.

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  • Requesting a small claims court trial postponement

    I received a small courts summons today for a minor fender-bender, with the plaintiff claiming $10,000 in pain and suffering. The court date is listed as August 28th; however, during that date I will be attending classes at University on the East ...

    Frank’s Answer

    Yes, it could be considered a valid reason to postpone the trial. For more information about small claims trial postponements, see:
    http://www.courts.ca.gov/1114.htm

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  • If my landlord remodels and bathroom is not usable, what can I do?

    My new landlord is remodeling my bathroom and I don't have a bathroom to use now. Landlord has not told me how long the repairs will take so aren't they suppose to provide a place for us to use a bathroom?

    Frank’s Answer

    Your facts don't provide all of the background information regarding your living situation. You are probably entitled to compensation or rent reduction/abatement for the duration of time that you do not have a working bathroom. This means the landlord ought to reimburse you for a hotel/motel.

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