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Frank Wei-Hong Chen

Frank Chen’s Answers

24,184 total


  • I need clarification on these ADA Compliance for a Small Business

    1) I am starting a small Business (Vintage Resale Store) I will have 5 parking spaces. I have not signed the lease yet. The landlord has not previously made the parking ADA compliant with a Handicap Space/curb ramp at the sidewalk. Whose responsi...

    Frank’s Answer

    1) The responsibility to ensure compliance with accessibility laws is jointly between landlord and tenant, but a lease agreement can delegate the party responsible for particular tasks. In common practice, the parking lot is the landlord's responsibility.
    2) No one can really advise you where to place the handicap space without having seen it. Generally speaking, the location of the handicap accessible space must be reasonably close to the entrance to minimize the path of travel from the parking space to the entrance of the business.
    3) Generally speaking, California law requires the wider van-accessible handicap parking space, as opposed to the regular handicap space under federal standards, unless there is some unique situation that would make it impossible or impractical to put in a van accessible space. A CASp inspector can help you determine what is readily achievable.
    4) If the business facility provides parking for customers, you can restrict parking for customers only.
    5) If the business does not provide public restrooms for customers, then the restroom for employees only does not have to be ADA compliant.

    I strongly suggest that the landlord and/or tenant obtain a CASp inspection as soon as possible in order to take advantage of the protections under California's newly enacted SB 269.

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  • How can a motion for SJ get put forward when material facts remain at odds?

    My opposition is trying to stall discovery. They know I'm going to compel an issue they don't want in the case, so they are moving for SJ. But there is an issue of material fact that we are at odds between in the complaint and answer. They say the...

    Frank’s Answer

    Are you in federal court or state court? In California, the superior courts are general jurisdiction courts. Subject matter jurisdiction is never waived. A party can bring a motion for summary judgment if it is dispositive of the case, or alternatively a motion for summary adjudication of issues. If you contend that you need discovery in order to properly oppose the MSJ, then look at CA Code of Civil Procedure section 437c, subdivisions (h) and (i), which provide as follows:

    "(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,
    order a continuance to permit affidavits to be obtained or discovery
    to be had, or 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.

    (i) If, after granting a continuance to allow specified additional
    discovery, the court determines that the party seeking summary
    judgment has unreasonably failed to allow the discovery to be
    conducted, the court shall grant a continuance to permit the
    discovery to go forward or deny the motion for summary judgment or
    summary adjudication. This section does not affect or limit the
    ability of a party to compel discovery under the Civil Discovery Act
    (Title 4 (commencing with Section 2016.010) of Part 4)."

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  • DO I bring a motion to enforce ?

    I am a plaintiff. I came to a settlement with the defendant. The settlement was signed by me, but I do not have a signed settlement from the defendant. The defendants attorney filed a conditional "Notice-Settlement" (corm cm-200). The defend...

    Frank’s Answer

    Without a signed settlement agreement which contains a reference to Code of Civil Procedure section 664.6, you will not be able to bring a successful motion to enforce settlement. Most likely, you will have to wait until the court's Order to Show Cause Re Dismissal to bring this to the court's attention. The court ordinarily sets an OSC hearing upon the filing of a Notice of Conditional Settlement. At the OSC hearing, the court will either dismiss the case (if the settlement is complete) or place the case back on to the civil active list (to proceed to trial).

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  • Can a application for immediate injunctive relief be filed if the defendant files a demurrer instead of answer?

    I was told I have to wait until defendant answers the complaint before filing answer but is this also true in the case of demurrer and does it need to be filed on regular motion or ex parte?

    Frank’s Answer

    Yes, a plaintiff can file either an ex parte application for temporary restraining order (TRO) and preliminary injunction, or a noticed motion for injunctive relief, at any time, regardless of whether the defendant files an answer or a demurrer. In other words, the case does not need to be "at issue". However, in terms of assessing the likelikhood of prevailing on a motion for injunctive relief, an attorney would need to know whether or not the plaintiff's complaint states a viable cause of action, as well as whether or not the plaintiff can demonstrate the necessary elements. An injunction may be granted “[w]hen it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” (Code Civ. Proc., § 526(a)(3).) Injunctive relief requires a wrongful act stating a cause of action and basis for equitable relief (e.g., ordinarily irreparable harm must be threatened, or a remedy at law is inadequate). (Brownfield v. Daniel Freeman Marina Hosp. (1989) 208 Cal. App. 3d 405, 410.)

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  • Filing a Request for Judicial Notice with your reply brief.

    Can I ask make a Request for Judicial Notice in Support of Reply papers? I filed a motion, it was opposed, and now I'm replying. I didn't do a request for judiical notice in support of my motion. Can I do one along with my reply papers?

    Frank’s Answer

    Yes, it is possible, although it might not be considered if you waited to file it with the Reply. Your post does not indicate the type of motion for anyone to ascertain whether a Request For Judicial Notice would be proper. In California, judicial notice 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. Should you elect to file a Request for Judicial Notice concurrently with you Reply to Opposition, make sure it is a separate document (with separate caption page), indicate the specific Evidence Code section (e.g. 451, 452) and specific subdivision applies, and attach the documents as separately labeled exhibits.

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  • Can they demand late fees and utility surcharges along with late rent on 3- day notice?

    Received 3-day notice to pay rent or quit. Notice includes late fees and utility surcharges along with the late rent. Proof of service states the notice was left on the door and a copy was mailed. The 3-day notice was served/taped on the door on a...

    Frank’s Answer

    No. Generally speaking, for a residential tenancy, a three day notice to pay rent or quit can only list unpaid rent due, not late fees, utilities, or other charges. If the 3-day notice to pay rent or quit includes a late fee, the notice might be invalid for two reason: First, because it includes a demand for payment other than rent, and second, the late fee and/or utility surcharges makes the entire total excessive. Thus, the three day notice appears to be defective. It sounds like there might be procedural issues regarding the service of the three day notice, and for that reason, it is imperative that you retain a tenant's attorney to defend you in the event the landlord files an unlawful detainer lawsuit. You will still have to defend the unlawful detainer action and raise the appropriate affirmative defenses which include the defective notice and/or make a motion to quash.

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  • Are businesses below a certain size exempt from California's more stringent accessibility regulations?

    I know ADA is only for businesses of a certain size. But I also know California has stricter laws. Do California laws apply to all businesses (as long as the business is open to the public)? Also, can a suit be brought by a non-disabled individual...

    Frank’s Answer

    No, there is no such exemption. You are correct that California has more demanding accessibility standards than the federal government. The California Unruh Civil Rights Act applies to all businesses and all property owners. It prohibits discrimination based on disability with respect to "accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever," and which incorporates the ADA, making ADA violations also violations of this act. Likewise, the same is true of the California Disabled Persons Act (Civil Code §§ 54-55.2). It applies to all businesses and property owners, regardless of size.

    That being said, there are certain small businesses which are eligible to reduce their liability for the minimum statutory damages. A defendant's liability for minimum statutory damages may be reduced to $1,000 per offense (instead of $4,000) if a business is in a location that was completed after January 1, 2008, or any business in California that has received a Certified Access Specialist (CASp) inspection, that business will have 60 days to correct all construction-related violations within 60 days of being served with complaint (along with other requirements) [Civil Code § 55.56(f)(1)],
    -or-
    reduced to $2,000 per offense (instead of $4,000) if the defendant corrects violations within 30 days of being served with complaint, and the defendant is a small business with 25 or less employees within last 3 years and with gross receipts of less than $3.5 million. [Civil Code § 55.56(f)(2)].

    No, an individual who is not "disabled" as defined under the law does not have legal standing to sue. Moreover, with respect to statutory damages for construction-related accessibility lawsuits filed on or after January 1, 2009, Civil Code § 55.56 provides that statutory damages under § 52(a) or 54.3(a) may be recovered only if the plaintiff personally encountered or had actual knowledge of a violation on a particular occasion.

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  • On appeal, what's the standard of review when appealing/filing a writ for an order denying a motion to vacate?

    When filing a writ after trial court denied a motion to vacate, what's the standard of review there? is there any helpful case law that anyone can offer on here?

    Frank’s Answer

    A motion to vacate a default and set aside a judgment is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, the exercise of that discretion will not be disturbed on appeal. The standard of review is a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.) The appropriate test for abuse of discretion is whether the trial court "exceeded the bounds of reason." (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-1319.)

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  • Is there a way to amend plaintiff's motion to compel to argue the need for a court order to compel further responses?

    Motion to compel further responses on discovery was filed. Defense counsel then produced the pending discovery responses. However, there were two items that defense had originally said they would not produce without a court order. The motion to co...

    Frank’s Answer

    There is a big difference between a motion to compel responses (where there were no responses at all), and a motion to compel further responses (where the responses were inadequate and/or objections were without merit). If you originally filed a motion to compel responses and then received responses, then the motion to compel responses would be moot. You would need to meet and confer, and then file a motion to compel further responses, along with the separate statement which is required under Rule 3.1345 of the California Rules of Court. Generally speaking, you cannot amend your motion from one type of motion to another. Also, generally speaking, you cannot amend your motion unless the opposing side has the statutory nine court days to file an opposition. Most likely, you will need to file a new/separate motion to seek the relief that you are seeking.

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  • For the purpose of discovery limits can the Plaintiff serve additional discovery against Defendant as a Cross-Complainant?

    Plaintiff files a Complaint against Defendant, Defendant files a cross-complaint against Plaintiff. For the purpose of discovery limits can the Plaintiff serve additional discovery against Defendant as a Cross-Complainant? (For example, CCP Di...

    Frank’s Answer

    Yes. Pursuant to California Code of Civil Procedure section 2033.040, any party who attaches a supporting declaration of necessity as described in Code of Civil Procedure section 2033.050 may request a greater number of admissions by another party if the greater number is warranted by the complexity or the quantity of the existing and potential issues in the particular case.

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