Skip to main content
Frank Wei-Hong Chen

Frank Chen’s Answers

24,243 total


  • What's the difference between just attaching exhibits and a request for judicial notice?

    I will be attaching exhibits to my opposition to a motion. Most of these exhibits have to do with documents and minute orders filed in the instant case (the exhibits are A LOT of pages though). I will also be attaching a page or two from anothe...

    Frank’s Answer

    You cannot just attach exhibits to your opposition. You must either attach the exhibits to your declaration in support of your opposition, or concurrently file a separate Request for Judicial Notice, setting forth the Evidence Code pursuant to which you desire the court to take judicial notice. The court can take judicial notice of the fact that certain documents were filed. Judicial notice may be taken of the records of any federal or state court; however, not all matters contained in court records (e.g., pleadings, affidavits, etc.) are indisputably true. In California, judicial notice is covered under California Evidence Code sections 450 through 460. Evidence Code section 450 provides that judicial notice may not be taken of any matter unless authorized or required by law.

    Mandatory judicial notice is set forth under Evidence Code section 451, which provides as follows:

    "Judicial notice shall be taken of the following:
    (a) The decisional, constitutional, and public statutory law of
    this state and of the United States and the provisions of any charter
    described in Section 3, 4, or 5 of Article XI of the California
    Constitution.
    (b) Any matter made a subject of judicial notice by Section
    11343.6, 11344.6, or 18576 of the Government Code or by Section 1507
    of Title 44 of the United States Code.
    (c) Rules of professional conduct for members of the bar adopted
    pursuant to Section 6076 of the Business and Professions Code and
    rules of practice and procedure for the courts of this state adopted
    by the Judicial Council.
    (d) Rules of pleading, practice, and procedure prescribed by the
    United States Supreme Court, such as the Rules of the United States
    Supreme Court, the Federal Rules of Civil Procedure, the Federal
    Rules of Criminal Procedure, the Admiralty Rules, the Rules of the
    Court of Claims, the Rules of the Customs Court, and the General
    Orders and Forms in Bankruptcy.
    (e) The true signification of all English words and phrases and of
    all legal expressions.
    (f) Facts and propositions of generalized knowledge that are so
    universally known that they cannot reasonably be the subject of
    dispute."

    Discretionary judicial notice is covered under Evidence Code section 452, which provides as follows:

    "452. Judicial notice may be taken of the following matters to the
    extent that they are not embraced within Section 451:
    (a) The decisional, constitutional, and statutory law of any state
    of the United States and the resolutions and private acts of the
    Congress of the United States and of the Legislature of this state.
    (b) Regulations and legislative enactments issued by or under the
    authority of the United States or any public entity in the United
    States.
    (c) Official acts of the legislative, executive, and judicial
    departments of the United States and of any state of the United
    States.
    (d) Records of (1) any court of this state or (2) any court of
    record of the United States or of any state of the United States.
    (e) Rules of court of (1) any court of this state or (2) any court
    of record of the United States or of any state of the United States.
    (f) The law of an organization of nations and of foreign nations
    and public entities in foreign nations.
    (g) Facts and propositions that are of such common knowledge
    within the territorial jurisdiction of the court that they cannot
    reasonably be the subject of dispute.
    (h) Facts and propositions that are not reasonably subject to
    dispute and are capable of immediate and accurate determination by
    resort to sources of reasonably indisputable accuracy."

    Procedurally, in order to invoke discretionary judicial notice under California Evidence Code section 452, a party must request it and give each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request.

    See question 
  • If an unlawful detainer complaint is based on a flawed 3-day notice, can they amend it or do they have to start again?

    If a 3-day notice is served, and a UD complaint is filed based upon that 3-day notice, but the 3-day notice is shown to be fatally flawed in court (such as a motion to strike), does the landlord have to start again with a new 3-day notice, or can ...

    Frank’s Answer

    Yes, the landlord could file a First Amended Complaint for Unlawful Detainer based upon a newly served corrected 3 day notice without having to dismiss and refile the UD, but only if no defendant has filed an Answer. See California Code of Civil Procedure section 472. Otherwise, if any defendant has filed an Answer or Motion to Strike, the court could possibly grant the Motion to Strike but also grant the landlord leave to amend the complaint.

    See question 
  • In a HOA which permits owners to rent the units, would I be under rent control?

    If the corporate status of the HOA is suspended and the CCRs cannot be enforced, does this mean I am under the RSO and if an eviction were attempted the RSO rules would come into play?

    Frank’s Answer

    To be subject to the RSO, a property must meet all of the following three criteria: (1) the property must be within the City of Los Angeles; (2) there must be two or more units on the lot; and (3) the building must have a Certificate of Occupancy issued on or before October 1, 1978.

    To ascertain whether a particular property is subject to the RSO, go to http://zimas.lacity.org/, click accept, and then follow the prompts. You will see a page which shows the property on a map, along with other information. Click on the Planning and Zoning tab at the left, and more information will appear. Towards the bottom, it will either say 'yes' or 'no' for Rent Stabilization Ordinance.

    See question 
  • In the state of CA., are you able to get a Quit Claim for a residential property and not assume the loan?

    My brother has a house in Fullerton. I am paying the mortgage now. Assuming the loan, at the present time, seems to be lengthy and taxing. After turning in 30 pages of paper work, which, they did not accept, the Lender mailed out another 30 pa...

    Frank’s Answer

    Your facts are a bit nebulous as far as whose name is on title and whose name is under the loan, but it seems you are asking whether your brother can quit claim the title of the house to you without you assuming the loan. Generally speaking, it is possible to quit claim title to residential property. Recording a quit claim deed does not change the person obligated to pay the loan. A word of caution, however, is that when there is a change in the ownership/title such that the original borrower is no longer on title, the lender has the right to call the entire loan due.

    See question 
  • Is my small claims lawsuit legal?

    I am the only plaintiff in a lawsuit against someone who caused major damage to my dad's classic car. my case has been filed and the defendant has been served. My dad didn't feel the need to go to court even though hes the registered owner. at th...

    Frank’s Answer

    No. Absent an assignment of the claim to you, you do not have the right to sue for property damages that your dad sustained. The easiest way to correct this is to dismiss your current small claims lawsuit and have your dad file and serve a new small claims lawsuit.

    See question 
  • What do i do if my employer has not paid me

    My employer recently laid me off for 3 weeks when we got the new job I worked a full week on my payday my employer told me that they did not have our checks because I was not paid on time I am now getting evicted from my apartment because I cannot...

    Frank’s Answer

    You can either make a claim with the Labor Commissioner or hire a private attorney to pursue the unpaid wages for you. For information on how to file a wage claim with the Labor Commissioner, see:

    http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

    California Labor Code section 204 provides:
    "(a) All wages, other than those mentioned in Section 201, 201.3, 202, 204.1, or 204.2, earned by any person in any employment are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month. However, salaries of executive, administrative, and professional employees of employers covered by the Fair Labor Standards Act, as set forth pursuant to Section 13(a)(1) of the Fair Labor Standards Act, as amended through March 1, 1969, in Part 541 of Title 29 of the Code of Federal Regulations, as that part now reads or may be amended to read at any time hereafter, may be paid once a month on or before the 26th day of the month during which the labor was performed if the entire month’s salaries, including the unearned portion between the date of payment and the last day of the month, are paid at that time."

    See question 
  • New 3 day notice received does that mean the 3 days start over again?

    Got served a 3 day notice that ended today. Was expecting a UD today but instead got a new 3 day noticE on our door sayin new notice supersedes old notice. So does that mean we doing a 3 day notice all over again?

    Frank’s Answer

    Yes it does. The newly served 3 day notice starts the time period for you to cure, which means you now have until the end of Monday.

    See question 
  • Am I required to meet and confer for the purpose of discussing objections and demurrer?

    I received a letter from opposing counsel in a lawsuit recently served. I was given a 24hour deadline to meet and confer for the purpose of discussing objections to the entire complaint with the threat of filing demurrer should I not comply. I und...

    Frank’s Answer

    Yes. Senate Bill 383, which became effective January 1, 2016, adds California Code of Civil Procedure section 430.41 and amends Code of Civil Procedure section 472 and 472a, mandating parties to meet and confer prior to filing a demurrer and imposing new limits on the use of demurrers. Five (5) days before the responsive pleading is due, the parties must meet and confer, either in person or telephonically, "for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer". If the parties are unable to meet and confer, the demurring party must file a declaration stating that a good faith attempt to meet and confer was made and explain why the parties could not meet and confer. Filing such a declaration triggers an automatic 30 day extension of time to respond. [Code Civ. Proc., 430.41(a)(2)].

    If the parties are unable to resolve their differences such that a demurrer must be filed, the demurring party must file a separate declaration concurrently with the demurrer either stating (A) the means by which the parties met and conferred and that the parties did not reach an agreement, or (B) that the pleading party failed to meet and confer in good faith [Code Civ. Proc., 430.41(a)(3)].

    The new law does not specify what consequences are associated with the failure to meet and confer, except to state that any finding that the meet-and-confer process was insufficient "shall not be grounds to overrule or sustain a demurrer." [Code Civ. Proc., 430.41(a)(4)].

    Code of Civil Procedure section 430.41 also imposes new limits on filing demurrers. First, a party may demur only once on grounds that should have been raised in an initial demurrer. [Code Civ. Proc., 430.41(b).] Secondly, when the court sustains a demurrer with leave to amend, the court may order a conference before an amended pleading may be filed. [Code Civ. Proc., 430.41(c).] However, if the conference is held, the court cannot preclude a party from filing a demurrer and the time to file a demurrer does not begin until after the conclusion of the conference. Previously, there was no limit on the number of times a party could amend following a demurrer. Under the new law, in response to a demurrer, a complaint or cross-complaint cannot be amended more than three times without court approval. [Code Civ. Proc., 430.41(e).] However, the three-amendment limit does not apply to amendments made pursuant to Code of Civil Procedure section 472 when the amendment is filed before a demurrer to the original complaint or cross-complaint is filed. [Code Civ. Proc., 430.41(e)(1).]

    Note that Code of Civil Procedure section 430.41 does not apply to unlawful detainers or forcible detainer/entry actions, or to actions wherein a party not presented by counsel is incarcerated. [Code Civ. Proc., 430.41(d).]

    See question 
  • 3 day notice falls on Saturday or Sunday

    If I serve a 3 day notice to pay or quit to my tenant personally on Wednesday or Thursday. on which day I can submit the eviction paper into the court? Please advise. Thank you.

    Frank’s Answer

    Here is how you count the days in the notice period: The first day is the day after the notice is served.
    Then count every day on the calendar, including weekends and holidays. If the last day of the notice period falls on a holiday or weekend, then the notice period ends the next work day. So in your hypothetical question, the earliest day you can file an unlawful detainer lawsuit based upon the personally-served 3 day notice to pay rent or quit is Tuesday.

    See question 
  • Can I allege IIED and/or tortious interference or similar claim if D refuses to pay loan and I am now short on cash and need it?

    Representing myself in a case where I sold my business to a local buyer in Orange County, who agreed to pay me $400k up front, and an additional $180k via 2 separate Notes. After closing deal, Buyer refused to make payments on either of the Notes,...

    Frank’s Answer

    It is possible but unlikely that an IIED cause of action would be viable in a business litigation case such as yours. There certainly must be sufficient facts to support the emotional distress element. It must be emotional distress, as opposed to physical (bodily) injury. Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.) In California, to adequately allege and prevail on a cause of action for Intentional Infliction of Emotional Distress (“IIED"), the plaintiff must allege and prove: (1) outrageous conduct by defendant; (2) intentional or reckless causing emotional distress; (3) severe emotional distress; and (4) causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1259.) The plaintiff must allege conduct which “exceeds all bounds of decency usually tolerated in a decent society.” (Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1362–1363.)

    See question