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Frank Wei-Hong Chen

Frank Chen’s Answers

24,128 total


  • Refusal to answer discovery. Dismissal of case.

    Can I refuse to answer discovery sent by an attorney representing a defendant that has not even been served. (I was not ready to serve his client yet but he noticed the case on the online docket). If I have not served the case, can I dismiss i...

    Frank’s Answer

    • Selected as best answer

    If you are in state superior court, you have the right to file a Request for Dismissal (without prejudice) against that defedant. If you are in federal court, you may need a stipulation to dismiss. Once you dismiss the defendant, you no longer have any obligation to respond to discovery nor would you need to oppose/respond to the Motion to Strike.

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  • For motion to consolidate, is the motion made to the 1st or 2nd judge?

    A case of mine that belonged to Judge A is on appeal. Another lawsuit was filed in trial court with mostly different causes of action against the same defendants and assigned to a different judge (Judge B). Defendants filed a motion for related c...

    Frank’s Answer

    If the two cases have been deemed related, then both cases are usually assigned to the lower number (earlier filed) judge. If and when the cases are deemed related, it is that judge who then rules on a motion to consolidate.

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  • How can I respond late to a Civil Lawsuit? How does one pay filing fees if not able to?

    My company received a civil lawsuit. On the first page of the Summons, it's lists it was delivered by "personal delivery" on 11-25-15. We share an office with another business, and it was actually slipped under our door and scooped up by the o...

    Frank’s Answer

    If a default has not yet been entered, the company can still file an Answer or other responsive pleading. If service of process is defective, the responsive pleading might be a Motion to Quash Service of Summons. If the default has already been entered, the company will have to file a Motion to Set Aside Default (and Vacate Default Judgment). The company must retain an attorney. It is a long-standing common law rule of procedure, a corporation or LLC, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record. (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101-1103 & citations therein.) If the corporate agent who would likely appear on behalf of the corporation in court proceedings, e.g., an officer or director, is not an attorney, that person would actually be engaged in the unlicensed practice of law. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730.)

    As for the filing fee, there is a fee waiver available for qualified individuals but not for entities:
    http://www.courts.ca.gov/documents/fw001.pdf

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  • Is a tenant entitled to a rent credit/deduction because of a broken dishwasher?

    I have a tenant who complained that the dishwasher was not working. I immediately sent someone to fix the dishwasher via my home warranty company. About a week later the tenant said the issue remains and someone was sent to the property again and ...

    Frank’s Answer

    No, a dishwasher is considered an amenity, and does not affect the health, safety or habitability of the rental dwelling. (See CA Civil Code section 1941.1). Therefore, unless the lease or rental agreement expressly requires the landlord to repair or replace the dishwasher, the tenant is not entitled to a reduction of rent.

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  • Does the fact that we already had mediation extend the limitation?

    We purchased a house on December 30,2014. The owner failed to disclose information about severe mold-contamination. We already tried mediation on November 2015 but he seemed not negotiable. a limitation to file a lawsuit is one year. Does the fact...

    Frank’s Answer

    No, mediation does not extend the statute of limitations. Generally speaking, under California law, there are different statutes of limitations which might apply to your case, including a 2 year statute of limitations for negligence or breach of oral contract, 3 year statute of limitation for fraud/concealment, and a 4 year statute of limitations for breach of contract.

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  • Does a Motion for New Trial have a calendared hearing?

    I am filing a Notice of Intention to Move for New Trial. I understand the deadlines and P&A, but I have not figured out whether this gets a calendared hearing in the original trial court (which must hear the motion) and if so, how this is schedule...

    Frank’s Answer

    Yes. The court clerk of the courtroom will set the hearing date once you file the motion for new trial and P&As.

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  • How do I recover a refundable move-in deposit from an unresponsive HOA?

    I bought a new condo about two months ago, and the HOA required a $500 move-in deposit which I paid for into the escrow account. The seller's agent informed me that the deposit would be returned after a couple of weeks, however it has been over 2 ...

    Frank’s Answer

    As for the legal basis, you should review all disclosures which you were provided, as well as your HOA's CC&Rs, Bylaws, and any other HOA governing documents to ascertain whether there is any written contractual basis for your lawsuit. It is quite possible that the $500 was not a deposit but rather a move-in transfer "fee", pursuant to California Corporations Code section 7140(g) and Civil Code section 4525(a). If there is a legal basis to recover your "deposit", you will most likely have to bring a small claims court lawsuit against the HOA. For information on how to do so, see:
    http://www.courts.ca.gov/selfhelp-smallclaims.htm
    http://www.lacourt.org/division/smallclaims/SC0020.aspx

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  • CA Civil Discovery--timing Interrogatory with Req. for Production

    I am anticipating sending a party Interrogatories and a Request for Production of Documents at the same time. The interrogatory will ask them for a list of bank accounts. In the document request I would like to ask for end-of-year bank statements ...

    Frank’s Answer

    You can concurrently serve the Demand for Production of Documents with the Interrogatories. There is no need to wait for the interrogatory responses. You just need to make sure you describe the documents sought with reasonable particularity.

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  • I need to break a rental lease. If I have a qualified renter who wants to rent this property can landlord charge me $4,000.?

    I have signed a year lease for a condo owned by an individual. I would like to leave four months early, due to the fact I am getting married and we are purchasing a home. I have a friend who would like to live in this condo and sign a year to year...

    Frank’s Answer

    Assuming your lease does not contain an early termination provision, if you break the lease by unilaterally terminating it early, you are liable to pay rent for the remaining duration of the lease. However, the landlord has a legal duty to mitigate damages by finding a replacement tenant. A landlord and tenant can mutually agree to terminate a lease, but typically there is some monetary consideration required. Whether or not $4,000 is reasonable will depend upon a number of factors, including the amount of the monthly rent under your current lease, whether your proposed replacement tenant (friend) is financially and otherwise qualified, and whether the replacement tenant can move in right away.

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  • Can you tell me how a clerk's transcript is charged and is there a published fee schedule?

    Fee schedule for clerk's transcripts on appeal. (Civil appeals from the Superior Court)

    Frank’s Answer

    The superior court clerk will prepare the clerk's transcript based on what the appellant and respondent list in their notices designating the record on appeal. The superior court clerk will give an estimate of the cost to prepare the clerk's transcript based upon what portion of the court file has been designated. To control costs, for appeals of an unlimited jurisdiction civil case, in lieu of a clerk's transcript, you really should consider using an appendix under Rule 8.124 of the California Rules of Court.

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