Skip to main content
Frank Wei-Hong Chen

Frank Chen’s Answers

23,783 total


  • 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.

    See question 
  • 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.

    See question 
  • 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.

    See question 
  • 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].

    See question 
  • 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."

    See question 
  • 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.

    See question 
  • 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

    See question 
  • 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.

    See question 
  • Need a statute of limitations case code for Superior Court, County of Orange, State of California

    What is the code that if you are represented by an attorney, & he quits the case, that during the time he represented you, the statute of limitations stops. Also, prior to having an attorney I unsuccessfully dealt directly with the defendant's in...

    Frank’s Answer

    It is not clear what you are asking. California Code of Civil Procedure section 340.6 provides that an action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission whichever occurs first. In no event shall the time for the commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

    1. The plaintiff has not sustained an actual injury;
    2. The attorney continues to represent the plaintiff regarding the specified subject matter in which the alleged wrongful act or omission occurred;
    3. The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation; and
    4. The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.

    No, absent an express tolling agreement, the statute of limitations does not stop during negotiations with the insurance company.

    Because the interpretation of the law governing when a legal malpractice lawsuit must be filed is complex, it is imperative that you retain a legal malpractice attorney as soon as you can.

    See question 
  • When should an extension of time form be filed with the appellate court?

    The deadline to file my brief is on August 1st and I'm planning to submit the extension of time on July 22nd. Should the extension of time be filed exactly on the day the deadline is up or a few days before the deadline?

    Frank’s Answer

    Your request to the Court of Appeal for an extension of time should be filed before the deadline date, not on the date of the deadline.

    See question