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Daniel Adam Kaplan
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Daniel Kaplan’s Answers

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  • Legal Malpractice - Under CCP 340.6 if one or more of the 4 tolling mechanisms exist when does the statute begin to run?

    CCP 340.6 states in part "except that the period shall be tolled during the time that any of the following exist" (1) The plaintiff has not sustained actual injury. (3) The attorney willfully conceals the facts constituting the wrongful act or om...

    Daniel’s Answer

    Useful answers to these questions really depend on the facts of your case. However, if you know that it has been four years since the alleged legal malpractice, contact an attorney to discuss your case. The statute will not be tolled while a concurrent lawsuit is pending if injury has occurred. A typical solution is to enter into an agreement to toll the statute of limitation with the potential defendant, so you can continue on with the concurrent lawsuit and see how it plays out. Also, inability to afford an attorney is not a basis to toll the statute of limitations under Section 340.6. So don't delay in seeking to preserve your rights.

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  • Civil Discovery Question

    Once a plaintiff receives a default judgement, may the plaintiff subpoena (duces tecum) the defendant's bank records, or has the time for such discovery passed? Thank you

    Daniel’s Answer

    Once you have a judgment against a defendant, you have some powerful tools to take discovery to enforce your judgment. You may conduct a judgment debtor's exam, and require the judgment debtor to bring documents to the exam, such as bank records.

    You specifically asked about a subpoena. The judgment debtor can also examine third parties who possess or control property in which the judgment debtor has an interest, which would include a bank. You can serve a subpoena on the bank with the examination order. An order for a third party exam must be obtained from the court first on an ex parte basis. You can use a Judicial Council application and order form (From EJ-125) to obtain the proper order from the court.

    After you get the examination order, there are some technical rules requiring serving the order on the third person (the bank, in your situation) and tendering witness fees. Consider hiring a collection attorney on a contingency basis if your judgment is large enough to justify it.

    If you can get to a law library, ask the librarian to show you the Rutter Guide on Enforcing Judgments and Debts. It is a very good source for information on how to enforce your debt. Consider hiring a collection attorney on a contingency basis if your judgment is large enough to justify it.

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  • How can the client enforce the contract with a Lawyer who chooses not to perform?

    The case against HOA is taken on contingency bases. Lawyer is entitled to 1/3 of the recovered founds (trial or setlement). Client sign lawyer's simple, one page “Employment Agreement” (exact name) in which the lawyer states cleint will pay unrefu...

    Daniel’s Answer

    Practically, there is little you can do to enforce the agreement unless the circumstances exist that will make it harmful to you if your attorney attorney were allowed to withdraw from the case. One example would be if trial were ready to start very soon.
    To expand upon the previous answer, from a practical standpoint, you will need to hire a new attorney to continue the case against the HOA. In the meantime, tell your withdrawing attorney that you want your entire file. You do not need to pay to make a copy of the file -- it belongs to you. Second, what you refer to as a retainer is likely an advance on costs, as you say the case was taken on contingency. Your attorney should return any amounts remaining.
    You can discuss with your new attorney whether your case against the HOA has been harmed by your previous attorney. If it has, then you can consider whether it makes sense to pursue a legal malpractice action. You can also consult with your new attorney about what to do if the previous attorney refuses to return the retainer -- a breach of contract claim might be appropriate.
    Think long and hard before reporting your attorney to the state bar. Perhaps there is a genuine disagreement between you and your attorney? Relationships sometimes just don't work out.

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  • The plaintiff have more options after verdict ?

    I was the plaintiff and the judgement was against me I did not win my case even I was right nd had the true facts do I have the right to a new hearing , Appel or motion plz let me know what can I do,

    Daniel’s Answer

    Your question is very vague, but your issue clearly requires consultation with an attorney. In most instances you can file several different types of motions after a verdict has been rendered, but the time frames are short. If the judgment becomes final, you can appeal. If this was a small claims case, you may have the right to appeal the decision. You should contact an attorney right away to discuss your options, and the sooner the better for you.

    Good luck.

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  • What recourse do I have against my bonded bookeeper who made mistakes in past income taxes

    I found out that my accountant made mistakes in my income taxes reports starting in 2004 and ending in 2010. Mostly are omissions (some costs that should have been included in my rental properties and the self employed taxes for 2007 and 2009). Ca...

    Daniel’s Answer

    • Selected as best answer

    If you are unable to obtain relief by filing amended tax returns, you may be able to make a claim against your accountant for negligence. A negligence claim typically is covered by an accountant's professional liability policy. You have a duty to try to reduce your damages, which is why you have been given good advice to also seek the assistance of a tax attorney to first try to correct the returns you still can.

    With respect to the fees, generally the fees you paid are not recoverable in a lawsuit for damages caused by your accountant's negligence. You can demand that she return them but first it makes sense to determine if you've really been harmed, and if so, by how much.

    One advantage to asserting or threatening a claim against the accountant is that her insurance company may try on your behalf to mitigate (reduce) your damages by assisting you with filing amended returns. Still, you should have your own attorney in the process to oversee the tax work.

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  • Motion to compel further responses in CA

    Can you file one motion to compel for both form interrogatories and special interrogatories? Or do you have to file separate motions for each?

    Daniel’s Answer

    There is some great advice already given here. Keep in mind that the court is very busy dealing with discovery motions like yours. Unless the opposing side has not made any answers at all (in which case you do not have to meet and confer) pick and choose just the interrogatories that you must have answered for your case.

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  • Questions via interrogatories Vs Discovery

    I realized interrogatories are part of discovery. If you need information (not documents), should they be titled/labelled as interrogatories? What benefits are there? I was not clear of the differences between interrogatories and discovery...

    Daniel’s Answer

    There are two types of interrogatories. One type is called form interrogatories. You can locate the form at the Superior court website: http://www.courts.ca.gov/forms.htm Form interrogatories are simple to use because you check boxes and then the opposing party is required to respond to the questions you have checked. Form interrogatories are very good for finding out about damages, witnesses, investigations and contentions about contracts. They are also useful because the answering party is less likely to object to them.

    You can also prepare 35 special interrogatories that ask for specific information you need to find out in your case. These types of interrogatories are trickier because you have to prepare them yourself, and oftentimes, the other side will object to the way the special interrogatory is worded. If you are going to use special interrogatories, make each one specific as possible. Since there are many rules that govern using special interrogatories, it's best to have an attorney help you prepare them.

    The advantage to both types of interrogatories is that the opposing side must respond to them under oath. The answering party is required to verify the responses. The effect is the same as if the witness was testifying in court.

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  • Can I sue someone for not paying me my half in the business?

    My friend (Doctor) and I in a beauty spa business together a year ago. We were both on the fititious name on the business. I was the one who was worked there day and nights (never get pay), and developed the clienteles. I was also the only one...

    Daniel’s Answer

    In addition to seeing an attorney to determine whether you are able to recover your money as a partner in the business, you should consider seeing an employment attorney. It may be the doctor will claim that you were his employee. If you were an employee, and he didn't pay you, you may be entitled to back pay, as well as certain penalties that may be imposed on the doctor who employed you.

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