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Frank Wei-Hong Chen

Frank Chen’s Answers

24,184 total

  • Motion to Quash Filed BUT not served

    I am the plaintiff. Filed a complaint against 2 defendants, waited 35 days. Process Server filed proofs of service with his due diligence declaration. Just saw on the docket one defendant (#1) in pro per filed a motion to quash, but did not serve ...

    Frank’s Answer

    No, filing a Motion to Quash Service of Summons, albeit not a general appearance, prevents entry of default. In other words, the clerk will reject your Request for Entry of Default against Defendant #1 if Defendant #1 filed a Motion to Quash (even if Defendant #1 failed to serve you with the motion).

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  • Question about Breach of Contract SOL

    SOL on Breach of Contract, does it start when the breach occurred or when the contract was signed?

    Frank’s Answer

    In California, the statute of limitations for breach of oral contract is 2 years from breach or date of last payment, whichever is later. For breach of written contract, the statute of limitations is 4 years from breach or date of last payment, whichever is later. It is possible to extend the statute of limitations if the defendant signs a "tolling agreement" or under certain circumstances when the defendant is outside the State of California.

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  • Would attorney-client privilege cover this scenario?

    Defendant is asked if they saw the complaint their attorney submitted on their behalf in a RAF. Can the defendant's attorney successfully object to question, invoking attorney-client privilege, or would the defendant eventually be compelled to adm...

    Frank’s Answer

    No, the attorney-client privilege would not be a valid objection to the RFA because the RFA does not call for communications between the attorney and the client. The RFA only asks if the defendant saw a specific document, i.e. complaint. California Evidence section 952 provides: "As used in this article, "confidential communication between client and lawyer" means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship."

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  • Does an illegal eviction include cases where the landlord is the owner?

    is the landlord that lives on the premises physically allowed to remove your possessions and furniture or would they need to file eviction papers? What are the consequences for evicting somebody by force/physically?

    Frank’s Answer

    Yes, "self-help" evictions (without undergoing the proper unlawful detainer procedures) are against the law in California. Landlords who effectively evict a tenant themselves without following the proper legal procedure run the risk of California penalties for self-help evictions. If a landlord violates the law, a tenant may sue the landlord. California Civil Code section 789.3 (a) provides as follows:

    "789.3. (a) A landlord shall not with intent to terminate the
    occupancy under any lease or other tenancy or estate at will, however
    created, of property used by a tenant as his residence willfully
    cause, directly or indirectly, the interruption or termination of any
    utility service furnished the tenant, including, but not limited to,
    water, heat, light, electricity, gas, telephone, elevator, or
    refrigeration, whether or not the utility service is under the
    control of the landlord.
    (b) In addition, a landlord shall not, with intent to terminate
    the occupancy under any lease or other tenancy or estate at will,
    however created, of property used by a tenant as his or her
    residence, willfully:
    (1) Prevent the tenant from gaining reasonable access to the
    property by changing the locks or using a bootlock or by any other
    similar method or device;
    (2) Remove outside doors or windows; or
    (3) Remove from the premises the tenant's personal property, the
    furnishings, or any other items without the prior written consent of
    the tenant, except when done pursuant to the procedure set forth in
    Chapter 5 (commencing with Section 1980) of Title 5 of Part 4 of
    Division 3.
    Nothing in this subdivision shall be construed to prevent the
    lawful eviction of a tenant by appropriate legal authorities, nor
    shall anything in this subdivision apply to occupancies defined by
    subdivision (b) of Section 1940."

    A landlord who violates California Civil Code section 789.3 shall be liable to the tenant in a civil action for all of the following:

    -- Actual damages;
    -- $100/day of violation (with $250 minimum);
    -- An injunction prohibiting violation during the court action;
    -- The right to stay; and
    -- Reasonable attorney fees and costs.

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  • Is this legal, or am I responsible for paying a different amount as we gave our 30 day notice today?

    My roommate and I gave our landlord our 30 day notice today, 4/20/16. We are on a month to month, and the Langland is saying that we must pay the full amount of next month's rent, instead of a prorated amount ending on 4/20. He stated that this ...

    Frank’s Answer

    Under California law, a tenant can give the landlord notice any time during the rental period, but the tenant must pay full rent during the period covered by the notice. Therefore, assuming you are a month to month tenant (with no lease or rental agreement) and the rent is normally due on the 1st day of each month, if you gave 30 days notice today, you are only obligated to pay rent covering the next 30 days.

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  • Thanks.

    Real Estate Attorney /legal or not I want to buy a house. it has a back unit built with a permit as a recration room. it has a bathroom w permit (and a shower with no permit) (1) can i rent the back unit? and if not why not? (2)what can be ...

    Frank’s Answer

    1) No. Generally speaking, if the back unit does not have a Certificate of Occupancy, it would be considered an illegal dwelling unit, and as such, you cannot rent it out to a tenant as a separate dwelling.

    2) If the dwelling is illegal, then under the case of Gruzen v. Henry (1978) 84 Cal.App.3d 515, you as the landlord are not entitled to collect or request any rent. California law does not reward a landlord who has an illegal structure, and punishes the landlord by declaring the contract leasing that structure "void." Therefore, in the event the tenant fails to pay rent, you will be able to evict the tenant to regain possession of the premises, but you will not be able to obtain a civil judgment for unpaid rent. In extreme cases, the tenant will sue you to recover any rent monies you collected. Also, in rent controlled areas, such as Los Angeles, you might be obligated to pay relocation assistance. The relocation money is due even if the unit is illegal, under the ruling of Salazar v. Maradeaga (1992) 10 Cal.App.4th Supp. 1.

    3a) Yes. If you are discovered, then the city can make you remove the unpermitted shower.

    4) You are probably better off not purchasing this house. An attorney would need substantially more facts to prove you with an accurate recommendation.

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  • What are suitable examples for service of process agents referred to on the "Articles of Organization" LLC document?

    Hello, Could you provide me with any advise concerning who to appoint as the "service of process" agent for an up-incoming LLC firm. If you have any questions, please let me know. Thank you, Cedric Clarke

    Frank’s Answer

    An agent for service of process is an individual who resides in California, or a corporation, designated to accept service of process if the LLC is sued. The agent for service of process can be one of the members of the LLC, or the LLC's attorney or the LLC's accountant.

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  • What type of lawyer should I seek? Will they accept payment from the money I recover? How much would this process cost me?

    I loaned $150,000 to my friend and he promised to return it with interest after 2 years. Well more than 2 years have passed and he has not paid a cent. I have a notarized copy of the agreement, and would like to bring him to court. He has means t...

    Frank’s Answer

    You should seek a debt collection attorney. Yes, it is typical for a collection attorney to be paid on a contingency fee basis, which means no attorney's fees to you in the event of no recovery, and a percentage of the recovery (which percentage is fully negotiable). Even with a contingency fee arrangement, however, you will typically still have to pay the costs, such as the court filing fee, process server fee, deposition court reporter, and jury fees.

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  • How long does it take to remove tenants from a house under rent control when their 1 year contract expired?

    I was wondering how long does an eviction take in the city of Los Angeles. I have already paid an eviction attorney. He just needs to file with Los Angeles court.

    Frank’s Answer

    The eviction attorney whom you hired would be the best person to respond to your question. Generally speaking, an unlawful detainer action can be brought to trial within 30 days of filing the complaint for unlawful detainer. However, a tenant with one or more viable defenses is often be able to delay the time until you obtain a judgment.

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  • Does she owe rent for the month of May?

    My tenant in California gave notice on the 15th of the April to vacate. She is on a month to month lease beginning on the first. I have her last month rent and security., ( she paid April rent) Does she owe rent for the month of May?

    Frank’s Answer

    Your month to month tenant would owe rent for the entire 30 day period of the notice. Therefore, based upon your facts, the tenant owes rent through May 15th (not the entire month of May).

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