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Frank Wei-Hong Chen

Frank Chen’s Answers

24,184 total


  • What valid reason I could state in order to have civil litigation judgement documents sealed? The matter was just settled.

    Hi, What valid reason I could state in order to have civil litigation judgement documents sealed? The matter was resolved without a judgement entered by reaching a settlement amount. I'm in CA. Thank you in advance for your advice.

    Frank’s Answer

    If the case was settled, usually a Request for Dismissal is filed with the court and there is no "judgment". The entire court file remains public record, but the settlement agreement is not part of the record. As for sealing the entire court file, there is a procedure for this, but you will not likely be successful. In California, motions to seal records in both civil and criminal cases are governed by California Rules of Court, Rules 2.550 et seq. Under California law, unless confidentiality is required, court records are presumed to be open to the public. (CRC 2.550(c).) An agreement by the parties to file documents under seal is therefore insufficient. Such an arrangement “is entirely inconsistent with the mandatory requirements of rules 2.550 and 2.551 and the constitutional values informing those requirements.” (Savaglio v. Wal–Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600. )

    In order to seal records, the court must “expressly find facts that establish:

    (1) There exists an overriding interest that overcomes the right of public access to the record;

    (2) The overriding interest supports sealing the record;

    (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

    (4) The proposed sealing is narrowly tailored; and

    (5) No less restrictive means exist to achieve the overriding interest.”

    California Rules of Court, Rule 2.550(d).

    This rule and Rule 2.551 provide a standard and procedures for courts to use when a request is made to seal a record. The standard is based on NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178. These rules apply to civil and criminal cases. They recognize the First Amendment right of access to documents used at trial or as a basis of adjudication. The rules do not apply to records that courts must keep confidential by law. Examples of confidential records to which public access is restricted by law are records of the family conciliation court (Family Code, § 1818(b)), in forma pauperis applications (Cal. Rules of Court, rules 3.54 and 8.26), and search warrant affidavits sealed under People v. Hobbs (1994) 7 Cal.4th 948. The sealed records rules also do not apply to discovery proceedings, motions, and materials that are not used at trial or submitted to the court as a basis for adjudication.

    Rule 2.550(d)-(e) is derived from NBC Subsidiary. That decision contains the requirements that the court, before closing a hearing or sealing a transcript, must find an "overriding interest" that supports the closure or sealing, and must make certain express findings. (Id. at pp. 1217-1218.) The decision notes that the First Amendment right of access applies to records filed in both civil and criminal cases as a basis for adjudication.

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  • What valid reason I could state in order to have civil litigation judgement documents sealed? The matter was settled.

    What valid reason I could state in order to have civil litigation judgement documents sealed? The matter was resolved without a judgement entered by reaching a settlement amount. I'm in CA. Thank you in advance for your advice.

    Frank’s Answer

    If the case was settled, usually a Request for Dismissal is filed with the court and there is no "judgment". The entire court file remains public record, but the settlement agreement is not part of the record. As for sealing the entire court file, there is a procedure for this, but you will not likely be successful. In California, motions to seal records in both civil and criminal cases are governed by California Rules of Court, Rules 2.550 et seq. Under California law, unless confidentiality is required, court records are presumed to be open to the public. (CRC 2.550(c).) An agreement by the parties to file documents under seal is therefore insufficient. Such an arrangement “is entirely inconsistent with the mandatory requirements of rules 2.550 and 2.551 and the constitutional values informing those requirements.” (Savaglio v. Wal–Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 600. )

    In order to seal records, the court must “expressly find facts that establish:

    (1) There exists an overriding interest that overcomes the right of public access to the record;

    (2) The overriding interest supports sealing the record;

    (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

    (4) The proposed sealing is narrowly tailored; and

    (5) No less restrictive means exist to achieve the overriding interest.”

    California Rules of Court, Rule 2.550(d).

    This rule and Rule 2.551 provide a standard and procedures for courts to use when a request is made to seal a record. The standard is based on NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178. These rules apply to civil and criminal cases. They recognize the First Amendment right of access to documents used at trial or as a basis of adjudication. The rules do not apply to records that courts must keep confidential by law. Examples of confidential records to which public access is restricted by law are records of the family conciliation court (Family Code, § 1818(b)), in forma pauperis applications (Cal. Rules of Court, rules 3.54 and 8.26), and search warrant affidavits sealed under People v. Hobbs (1994) 7 Cal.4th 948. The sealed records rules also do not apply to discovery proceedings, motions, and materials that are not used at trial or submitted to the court as a basis for adjudication.

    Rule 2.550(d)-(e) is derived from NBC Subsidiary. That decision contains the requirements that the court, before closing a hearing or sealing a transcript, must find an "overriding interest" that supports the closure or sealing, and must make certain express findings. (Id. at pp. 1217-1218.) The decision notes that the First Amendment right of access applies to records filed in both civil and criminal cases as a basis for adjudication.

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  • What is the Statutes of limitation for Lawyer Breach of Fiduciary Duty

    What is the Statutes of Limitation for Lawyer Breach of Fiduciary Duty in civil case legal representation; Also what is the difference between that and legal Malpractice

    Frank’s Answer

    The statute of limitations in California for breach of fiduciary duty is four years. California Code of Civil Procedure section 343 is a "catchall" section which provides that "[a]n action for relief not hereinbefore provided for must be commenced within four years after the cause of action accrues." The statute of limitations in California for legal malpractice can be anywhere from one year to four years, as provided under Code of Civil Procedure section 340.6. Note that a lawyer's misconduct can involve both breach of fiduciary duty and negligence (i.e. legal malpractice). The major difference between legal malpractice and breach of fiduciary duty lies in the nature and scope of the applicable duty. Legal malpractice refers to conduct which falls below the standard of care. Breach of fiduciary duty arises when there is a special relationship, such as when trust or control over a client's affairs are vested with an attorney. A fiduciary duty has a much higher standard of care than the ordinary duty of care applicable to negligence (malpractice).

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  • Question about partner agreement

    Can a partnership agreement be signed over the weekend or is it suggested to be signed during business hours weekdays? Also, is it recommended that both partners sign the agreement in front of a notary?

    Frank’s Answer

    A written partnership agreement can be signed on any day of the week, including Saturdays, Sundays, and holidays. It makes no difference with respect to the validity of the agreement. It is not necessary to sign the agreement in front of a notary public, but if either partner wants to preserve the right to challenge the validity of a signature on the partnership agreement, it would be prudent to have the partnership agreement notarized.

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  • Are we entitled to a copy of the mold report since we live in the apartment that was checked out?

    We recently found mold in all over our apartment, the apartment complex brought in a mold specialist to look around they recently got the mold report but are with holding it from us, is this legal to do?

    Frank’s Answer

    No, unless you are in pending litigation, you are not entitled to receive a copy of the mold report.

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  • Facing eviction - we have the money to pay back rent - will be still be evicted?

    Facing eviction, but we have the money. Initially. Property manager started eviction process. Roommate who has been in apartment for almost 6 years. Dec. rent was paid late and around $1030 of $1280.00 Jan. came and roommate sent in balance of ...

    Frank’s Answer

    If you already filed an answer to the complaint for unlawful detainer, you can no longer file a motion to quash service of summons. You waived that right by filing an answer, and will not be able to challenge the service at trial. A landlord has no obligation to accept rent after the expiration of the three day notice to pay rent or quit. As such, it is probable that you will lose at trial, and the judgment will include possession of the premises and an award to the landlord of all unpaid rent, as well as reasonable attorney's fees and costs. However, you can avoid eviction by settlement anytime before or even on the date of trial.

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  • Can a new cause of action be commenced based on the underlying events of already adjudicated case?

    I have sued the defendant in small claims for trespass to chattel. Lost. May I sue him (in either small claims of civil) for violation of statute and fraud arising out of the same event? The civil damages allocated under the statute are calculated...

    Frank’s Answer

    No. Res judicata, or "claim preclusion", prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. California’s res judicata doctrine is based upon the primary right theory which provides that a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. The violation of a single primary right gives rise to a single cause of action, even with multiple legal theories. The prior final judgment on the merits not only settles issues that were not actually litigated, but also every issue that might have been raised and litigated in the first action. It also precludes litigation of the same cause of action on a different legal theory or for different relief. (Lincoln Property Co., N.C., Inc. v. The Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 912-913.)

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  • Calendar or Court Days? Start Counting when?

    The superior court gave me 20 days to amend a civil complaint. I take that to mean 20 calendar days, but do I began counting the day after the tentative ruling or the day after what would have been the hearing date had the ruling been contested?

    Frank’s Answer

    • Selected as best answer

    Yes, calendar days. A tentative ruling is merely tentative. The date of the ruling (which is normally the date of the hearing, but if there is no hearing, then it is the date of the court's order) is the date used to calculate the 20 days. To determine the deadline, the first day after that date is day 1, and so forth.

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  • Need to serve landlord with civil lawsuit paperwork

    How can I serve my landlord with court papers with only P.O. box I need to serve landlord with civil lawsuit papers , but do not have an address , only a P.O. box, and from what I gather, this person lives on a boat at the local marina

    Frank’s Answer

    You cannot serve a summons and complaint to a post office box. You need to ascertain the physical address of the defendant, either by hiring a private investigator, an attorney with access to public records, or by mailing a request for boxholder information needed for service of process to the Postmaster of the city/state where the post office box is located:
    http://napps.org/uploads/docs/ReqAddressChange.pdf

    Note that it is possible to serve a summons and complaint via mail if the landlord signs the Notice and Acknowledgment of Receipt form:
    http://www.courts.ca.gov/documents/pos015.pdf

    Also note that regardless of the method of service, someone other than yourself (a party to the lawsuit) must serve the summons and complaint.

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  • In a settlement agreement, if the defendant fails to pay the plaintiff the considerations it was promised (x dollars), does that

    In a settlement agreement, if the defendant fails to pay the plaintiff the considerations it was promised (x dollars), does that mean there is a breach of contract? Does that also mean the contract is void? I broke my leg while working for my empl...

    Frank’s Answer

    • Selected as best answer

    Yes, it would typically constitute a breach of contract. If there was pending litigation and the settlement agreement recites Code of Civil Procedure section 664.6, then the court has jurisdiction to enforce the settlement. Otherwise, your recourse would be to sue for breach of contract. However, as my colleague notes, your remedies might be limited under workers compensation law if you broke your leg while working for the employer.

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