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Brian Richard Dinday

Brian Dinday’s Answers

1,307 total


  • Can divorced parents file separate medical malpractice suits for the same reason?

    My cousin's parents are divorced and one has already hired a lawyer for their son that passed away. Can the other one hire another lawyer for the same medical malpractice case? Will it be conjoined in court even with seperate representation? Also,...

    Brian’s Answer

    It is permissible for each individual in a wrongful death case to hire a separate lawyer, or share one. The latter is more common. Yes, if two separate lawsuits were actually filed, they will undoubtedly be consolidated into one action by the court.

    The "fight" between them will only come at the end, when the respective shares of any money recovered have to be worked out. But during the lawsuit, they are pulling on the same oar, so the need for separate lawyers is not clear to me. Sounds like a trust issue. But a ship with two captains has trouble steering, yannow?

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  • Is it uncommon for a lawyer to work from home?

    We are trying to find a lawyer. We found out that one of the possible attorneys works from home. We are not sure what to think of this. He also has not personally disclosed this information.

    Brian’s Answer

    Sometimes, older, experienced lawyers who cut back on their law practices find that it is no longer necessary to maintain a full time office, and so work from home. Good luck.

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  • 17 year old made verbal threat, got citation 2 weeks later w/ today's date. Is that appropriate?

    Two weeks ago my H.S. brother (age 17) threatened a boy that he would hog tie him and drag him down the street as this boy was in his face. He turned 18 a week ago. Today he was called into the principal's office, and received a citation from an o...

    Brian’s Answer

    This case has to be transferred to juvenile court, not adult court. It is the day of the incident, not the day of the arrest that controls whether he is treated as an adult of Juvenile. This is not the kind of offense that would merit being sent to adult court. I am sure it is a misunderstanding or error on the officer's part. He should raise the age issue with the judge on the day of his first court hearing. Good idea to bring his birth certificate along with him.

    And he should not just plead guilty to the Juvie petition either. Often people make what are called "conditional threats," as in "If you don't stop threatening me, I'll hog tie you." A conditional threat is not a crime. If that was the case, even the Juvie petition should be dismissed. Whatever the outcome, he can move to seal his Juvenile record as soon as the case is over.

    Given the issues involved, it would be wise to spring for a lawyer for this.

    Lastly, assuming he IS able to dispose of this case without any conviction or Juvenile adjudication (equivalent to a "conviction"), then he ought to work on having the arrest sealed and destroyed due to factual innocence.

    Petitions for Factual Innocence (PFI) under Sec. 851.8 of the Penal Code are my specialty. I have done many of them, from San Francisco to Los Angeles. I also give training to other lawyers how to do these petitions. You can see a recent article I wrote about it in California Lawyer Magazine here:

    http://callawyer.com/story.cfm?pubdt=NaN&eid=901853&evid=1

    The PFI is very valuable and of critical importance because a mere arrest record can jeopardize occupational licensing, jobs, promotions, child custody, security clearances, immigration, credit applications, insurance premium rates, and of course any chance at public office. No one should start off his adult life with an arrest for a violent crime. Just the arrest alone is highly damaging, as many of my clients tell me. Most employers now check the California Dept. Of Justice criminal database for a background check, and his arrest will show up there and any prospective employer will know of it. I have to think that an arrest for threatening bodily harm to someone will lose him many good jobs over his adult life, so I urge him to take this extremely seriously.

    He should NOT take any deal whatever without an attorney making every effort to get this wiped clean. Offers like "Oh, it's only an infraction, and no jail time" may SOUND good, but the arrest is devastating. He could likely in later years even be refused as a Little League Coach due to this.

    Factual innocence is a complicated area of law that is in general poorly understood by defense lawyers, prosecutors, and judges. In addition, the statute itself is very poorly drafted. In fact, the statute contradicts itself as to when petitions can be filed. In addition, many judges still believe that if the police had probable cause to arrest you, you cannot get a PFI granted. Totally untrue.

    If the petition IS granted, all the arrest and court records are totally sealed and then destroyed so you have a totally clean record again.

    To learn more about the PFI, you can read the articles on my website here, or call me for a free consultation to see if I can help you: I just checked Kelseyville and you are within the geographical area that I accept cases in, so I could help your brother with this, if the parents are willing to help.

    http://lawyer-expungement.com/petition.htm

    And

    http://lawyer-expungement.com/results.htm

    Good luck.

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  • My insurance has totlaed my car - other party was repsonsible for accindent should I settle with my insurance or wait ?

    they tell me body shop has totaled it - other party insurance respponsible foraccident has not contacted me -

    Brian’s Answer

    If the liability of the other guy is not disputed, I would prefer to make my claim against him, not my own policy. You do not need to wait for them to contact you. Call them up. Give them the name of their insured, the date of the accident and his policy number if you have it. Then you mail them a letter demanding whatever cost you want to make you whole, with photos of your car and your auto body shop's estimate. They they either pay or don't. You do not need a lawyer for this.

    If they want to fight about it, you might feel it's a lot easier to claim against your own collision policy, in which fault is not relevant. Then your insurer can chase the other guy's insurer to reimburse them.

    I prefer claiming against the responsible party because it's hard to be sure what your company's reaction will be in terms of your rates next renewal period. However, if you want to ask your own company adjuster whether claiming against them could possibly factor into your rates, maybe they will tell you. Maybe not.

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  • Can I sue E.D.D due to an error on there part I wont be recieving benfits until possibly feb if I can prove it was an error on

    there part would I be able to sue them?, with them making a mistake it freeze all my money which allows my bills to grow wild and my credit score to sink a lot.

    Brian’s Answer

    As harmful this error was to you, I can't think that in the long run, it would be worth while to try to sue them for their error. Even if they had liability, (and I offer no opinion on that), the amount of money you could win would never equal the time, expense and trouble of the suit. EDD's lawyers' fees don't come out of one cash strapped individual's pocket. I just don't see this leading anywhere. But maybe an attorney with specific experience on EDD issues will answer you.

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  • If 1 apt. unit overflows & causes damages, does both property owners have a right to their own contractor for repairs?

    I am a rental unit owner .My unit's toilet overflowed, causing damage to a unit below. The owner of the damaged unit presented me with a letter from his lawyer, with a damage estimate from a contractor of his choosing. This est. is extremely high....

    Brian’s Answer

    You have the right to ask, and if they are reasonable, they will agree to these things, if they want to be paid without the necessity of filing and litigating a lawsuit. The real issue here is: what is the value of the damage done? That obviously is a fluid topic and both sides get to have their input and positions. Then negotiate.I would certainly ask to see the damage and have your own contractor do an estimate. While you are there, you might want to photograph the damage. Who knows? Their "contractor" might be their uncle Ernie.

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  • Need some one to write a suit correctly, people take it and dont finish it.

    need someone that can work with us, to write and file an suit against money laudering and fraud from a canadan who has a history of it, and an attorny who gave it to him from the turst, when he was suppose to be the buyer. also some one write a le...

    Brian’s Answer

    I'm sorry, but I have no idea what your question means. Perhaps someone can help you formulate a clearer question with more detail.

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  • Endless Noise from Neighbors

    I own a condo in a row home configuration. I've lived here for approximately 6 months and have had barely two weeks of peace and quiet as a result of a large family living in the unit adjacent to ours. The family includes 5 adults and two you...

    Brian’s Answer

    Well, either you have a comatose 108 year old woman for the other neighbor, or the condo is just poorly designed. I would have an architect or general contractor take a look at the place during prime noise pollution hours and get his opinion. Then take his report to the condo association and see if you can get them to remedy the problem. You might need to take legal action if that does not work. One wonders if the person who sold you the unit did so just because of these neighbors, in which case, perhaps there is a duty to disclose this factor that they violated. Talk to a real estate lawyer.

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  • Are there laws for using family members not guilty, for leverage to get a guilty plea? uneithical?

    are there laws protecting family members from being used by the DA to get the guilty person to plead. for example, Father does something that gives the DA an opportunty to file against him. the DA uses adult children as pons (who may have been u...

    Brian’s Answer

    The more usual kind of prosecutorial abuse is for the D.A. to charge a man's wife for possessing HIS drugs jointly, with the offer to drop charges against her IF he pleads guilty. I have not run across what you are describing, personally. It is legal and proper for the D.A. to offer a discounted sentence or other prosecution deal to someone to testify against another party, but they have to disclose this. You have simply said that the deal is the dad gets less time if the child pleads guilty. That, in my opinion, is unethical if that is how it went down.

    Have the defense lawyer alert the judge to this tactic if that is indeed what is going on. This kind of tactic has the clear capacity of motivating one defendant to put improper pressure on another defendant to plead, whether he is guilty or not. It also tends to create an atmosphere where the defense attorneys are being circumvented while the defendant becomes a de facto agent of the prosecutor.

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  • Is it legal to record a teacher in school

    none needed

    Brian’s Answer

    The question almost certainly has an "understood" clause "without his/her knowledge?" And I take the question that way. No, it is not legal to record anyone's conversation in California without the consent of all parties to the conversation.

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