Fry Law Corporation

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Why you need an experienced and aggressive lawyer for your foreclosure lawsuit.

Fry Law Corporation is proud to announce a huge victory in a foreclosure defense lawsuit against Wells Fargo Bank, N.A. The win is a great reminder of why you need an experienced and aggressive attorney when suing the banks.

The lawsuit was filed because Wells Fargo Bank was reviewing our clients’ mortgage for a loan modification. The dual-tracking was so bad that our clients were providing requested documents up until the day before the sale.

Fry Law Corporation filed and immediately set a hearing for a restraining order barring the sale pursuant to Civil Code 2923.6 (“Homeowner Bill of Rights”). 

After presenting evidence, the Superior Court Judge granted the restraining order and set the case for a hearing to determine whether the sale should be enjoined for the duration of the lawsuit.

At that hearing, Wells Fargo offered virtually no valid argument as to why it was not violating the statute.

Nevertheless, the Judge, as many do, sided with the bank and even asked Attorney Chris Fry, “so how long have they been in the home without paying a mortgage?” Mr. Fry’s response was, “in the eyes of the law that does not matter your honor.” The Judge then denied the injunction and Wells Fargo was free to foreclose with a sale date just 2 weeks away.

Not satisfied with this outcome, Fry Law Corporation worked on the appeal for nearly an entire week and filed it just days before the sale. 

When a Superior Court judge makes a ruling that is incorrect, the Court of Appeals will sometimes review the ruling to determine if there was error. The Court of Appeals is a panel of 3 judges and they are a separate and distinct court to ensure fairness.

In this case, since the sale date was so close, Fry Law Corporation had to file what is known as a writ. In fact, given the timeframes, 2 writs were required. The first writ was asking the Appeals Court to review the denial of the injunction. The second writ was asking the Appeals Court for an order barring the foreclosure sale until the Appellate Court made a decision.

Appellate Writs are notoriously difficult. They are considered “extraordinary” relief and the Appeals Court is not required to look at them, let alone grant them. The legal community has estimated that less than 10% of writs are granted.

Fry Law Corporation took a chance and is proud to announce that both writs were granted and the sale stopped until the Appeals Court can make a determination. We expect a ruling before the end of the year!

Less than 5% of attorneys have appellate experience. Less than 1% have experience with writs. 

Fry Law Corporation is in the top 1% of California attorneys and fights hard for our Clients.

Why Having a Lawyer is Important.

Facing a legal battle is not something anyone wants to do. However, if it happens to you, having a lawyer can be critical.

Most cases belong to the client and not the attorney. However, having an attorney is like having a co-pilot. You are driving the ship but the lawyer has the map.

Fry Law Corporation has seen a lot of situations where having an attorney has helped the case.

In one instance, a personal injury client came in to our office. She handed us a letter from the insurance company that said, “given the minor impact of the crash, we don’t feel you were injured.” The problem is, she was injured. It wasn’t a million-dollar case but it had value. We sued and she ended up with about $10,000.00! The insurance company changed their tune after we got involved.

In another instance, a tenant was being evicted for non-payment of rent and sued for damages. The landlord was demanding over $10,000.00. Fry Law Corporation was able to negotiate a settlement where the tenant got time to vacate and only had to pay $3,500.00. Without us, they would have been kicked out and owing a lot of money.

In a foreclosure case, the client walked in and told us that the bank would simply not return her calls. She was struggling and facing a sale date but wanted to try for a loan modification. She could make the payments but the arrearages were just too high. We sued and within a few days, the bank responded and offered a loan modification. She walked out and kept her home. 

Fry Law Corporation is here to assist in pursuing or defending all legal issues!

Just bought a house? Discovered problems with it? You may be able to sue!

So you just bought that beautiful contemporary home that looks just like the one on HGTV! But wait, you moved in and you noticed that the roof leaks! What do you do!? The seller may be responsible for anything that wasn’t disclosed during escrow.

The Law

Sellers of residential real estate have a duty to disclose any material defect in a property that they know, or have reason to suspect, exists. Non-disclosure is a misrepresentation. See Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161.

Remember the 1,000 pages of documents you went through during escrow? One key document in that stack is the “Seller Property Questionnaire.” This document is a punch list of virtually every aspect of the home. If a Seller knows or has reason to suspect any issues with these items, they must disclose that to the purchaser. The form goes through whether the property was used for illegal purposes, whether there are title issues and whether there are problems with the structure, systems, etc.

Any and all known issues with the property should be listed by the seller here. For example, if they know that a tree has grown into the foundation causing damage, they must list it. If they know that the roof leaks, they must list it. If they know that the next door neighbor has weekly fraternity parties, they must list it.

The Transfer Disclosure Statement is also your friend. It contains a myriad of items that the seller must go through and “certify” that there are no problems.

Free Advice: Get an inspection, thoroughly review the inspection results, thoroughly review the Seller Properly Questionnaire and thoroughly review the Transfer Disclosure Statement.

If the seller knew of your leaking roof and didn’t disclose it, you may have a case.

So who do we sue?

In buyer-seller litigation, there are several parties to the lawsuit. First and foremost, you sue the seller.

Though the seller is the primary wrongdoer, the seller’s agent can also be held responsible. Pursuant to Civil Code section 2079, et seq., if a realtor knows of any defects in the property, even if the seller does not disclose, the agent has to.

That’s not all! Each realtor typically works under a broker. That broker can also be sued! Code of Regulations section 2725 says that all brokers must exercise reasonable supervision over the activities of all realtors employed by them. That means, the broker has to have rules and restrictions in place to try and avoid situations of non-disclosure and thoroughly and carefully review each transaction.

That’s not all (again)! In most escrows, the buyer gets an inspection done. In very rare situations, if that inspector doesn’t catch something that they were hired to catch, you can sue them! 

What do we want?

In these cases, we want to made whole. If you bought a home and the roof leaks, we want to get you the money to fix it. In most cases, we also want to get you your attorney’s fees!

The statute of limitations in cases like these can range from 2 to 10 years depending on the circumstances.

Call Fry Law Corporation to see if you have case.

How to sue the bank for wrongful foreclosure (in a nutshell)

California has seen a substantial improvement in foreclosures. Nevertheless, close to 40,000 homes were sold at foreclosure in 2016. (http://www.thebusinessjournal.com/news/real-estate/22067-report-rates-declining-but-california-still-among-national-foreclosure-leaders)

People still need help.

Just because borrowers are behind on their mortgage does not mean the bank can do whatever it wants. At Fry Law Corporation we consider ourselves well versed in virtually all legal theories of wrongful foreclosure.

The Homeowner Bill of Rights.

The first and likely strongest legal theory for those facing foreclosure is the Homeowner Bill of Rights (“HBOR”).

The HBOR’s strongest law is the law prohibiting “dual-tracking.” Dual-tracking occurs when a borrower is in the middle of a loan modification review and the bank continues to proceed with the foreclosure while simultaneously reviewing the loan modification. It has been referred to as a “scary game of chicken” to see if the loan modification can be reviewed before the sale.

Legislature included a great section on the purpose of the law: “The purpose of the act that added this section is to ensure that…borrowers are considered for, and have a meaningful opportunity to obtain, available loss mitigation options…such as loan modifications or other alternatives to foreclosure.” (Section 2923.4)

It’s shocking that it took until 2013 for something like this to be enacted!

The dual-tracking provision (section 2923.6) is very complicated. In order to prove dual-tracking, you have to prove that a completed application was submitted along with all required documents. You also have to prove that the bank was actually reviewing you. Faxing a loan modification application to the bank simply won’t cut it. The law has particular carve-outs for this sort of thing.

A few other key factors in determining whether a viable dual-tracking claim can be made are: Whether the dual-tracking is material (i.e. is there an actual chance that the modification can be approved?); whether a borrower was previously approved for a loan modification; whether the borrower previously filed bankruptcy.

These cases are tough to prove but if a claim exists, not only can you stop the sale until the law is complied with (i.e. you get a fair review) but you get your attorney’s fees paid by the bank.

The HBOR also requires certain notices before sale and appointment of a single point of contact (or at least a group of people who know your situation when you call).

Negligent Denial of a Loan Modification

The next common legal theory against the bank is negligence. California Courts are starting to impose a duty of care on banks to handle loan modification properly. Again, it’s sad that it’s taken this long but we’re glad it’s here.

The duty imposed on banks can be breached by them if they improperly deny a loan modification. For example, if your income is $100,000.00 and the bank used $60,000.00, if we can prove that had they used the correct amounts you would have been approved, you can sue for damages. In some instances, the Court will stop a foreclosure until they review the modification application using the correct information!

These are just a couple examples of what the attorneys at Fry Law Corporation look for when dealing with potential foreclosure cases.

If you or someone you know is facing foreclosure and want to have us take a look, they can call us for a free consultation.

How to respond to a lawsuit and summons in California:

So you’ve been served with a lawsuit and summons from a process server, what do you do now!?

Step 1: Call Fry Law Corporation! As most of you know, we love to sue but we also love to defend lawsuits. Having a successful Plaintiff’s attorney defending your case provides well-rounded representation. Most all-defense firms are jaded and have defense-only mindsets. This can cos their client’s a lot of money in unnecessary fees and time.

Here’s what we’ll do!

First, we have to look at the claims set forth in the complaint.

Every time a person files a complaint with the Court, they are asking the Court to determine whether or not they have claims. In order to successfully establish a claim, the person suing must adequately allege and be able to prove certain elements. For example, if you are being sued for fraud, the plaintiff must allege and prove that you 1) made a representation that was false at the time you made it; 2) s/he relied on the representation and 3) that reliance on the representation caused some kind of damage.

The first thing a good defense lawyer will look at whether each element of the claim has been alleged and can be established. If the allegations are insufficient, a demurrer may be appropriate (that’s another blog). If the allegations are there but they can’t be proven, a summary judgment motion may be suitable (again, another blog). If there is a controversy over facts, the case will need to go to trial. This is done either by judge or by jury (yet another blog).

If the Plaintiff can successfully allege and prove each and every element, the person being sued is able to raise defenses. For example, if you are being sued for breach of contract, if you can prove that the contract was illegal or otherwise unenforceable, you may raise that as a defense to all claims of damage.

The second thing good lawyers look at is whether these defenses apply. If they do, it may be worth defending.

Having the skill to handle these tasks efficiently makes for a good defense attorney. Great defense attorneys have another ability. That is, weighing factors outside of the claims. For example, in some instances, it will cost more to defend a case than to just make a settlement offer. Sometimes just paying a small amount to prevent incurring legal fees makes sense. Sometimes it doesn’t.

A great lawyer (like Fry Law Corporation) will be able to do what’s right for you and not put revenue ahead of their client’s financial interests.

Call us if you have been served with a lawsuit and need aggressive yet strategic representation.

Landlord Tenant

Fry Law Corporation enjoys helping tenants in seeking justice against landlords. In a landlord-tenant relationship, the landlord holds all the cards and unfortunately, landlords have taken advantage of this fact. This “confidence” coupled with the fact that very little lawyers handle landlord-tenant disputes has resulted in landlords essentially doing as they please and banking on not getting sued. Fry Law Corporation is not a name they want to see!

There are three main grounds for a lawsuit against your landlord. First, a breach of the warranty of habitability. Second, a breach of your right to quiet enjoyment of your property. And third, a breach of your lease or rental agreement.

WARRANTY OF HABITABILITY

In every landlord-tenant relationship, there is an implied warranty of habitability. This means that the property offered up must be in a condition fit occupation. (Civil Code section 1941.) This not only requires that the property be in that condition but that the landlord repair all subsequent conditions rendering the property untenantable. (Ibid.)

The warranty of habitability says that the landlord must provide adequate 1) weather protection; 2) plumbing and gas; 3) water; 4) heating; 5) electricity; 6) clean and sanitary premises; 7) trash facilities; 8) safe floors, stairways and railings; and even 10) locking mail receptacles. (Civil Code section 1941.1)

One of the most common areas Fry Law Corporation encounters relates to whether the property is clean and sanitary. The most common example is cockroaches or other pests like rats or other vermin.

If you can prove that you put the landlord on notice of a violation and they did not take the appropriate steps to remedy it, you may be able to recover some or all of your rent paid, emotional distress damages for the stress and anxiety of dealing with it and in some cases, punitive damages punishing the landlord (slumlord)! In most cases, the landlord has to pay your attorney’s fees!

RIGHT TO QUIET ENJOYMENT

In every lease agreement there is an implied right to quiet enjoyment. (Civil Code section 1927.) Quiet enjoyment means the landlord must provide possession and beneficial enjoyment of the premises and must prevent any issue trampling on this right.

The most common issue presented is the situation where there is some outside source impeding on your right to enjoyment. Examples include a loud co-tenant or neighbor, excessively noisy or disruptive construction, excessive crime, etc.

In most cases, if you prevail, you may get awarded damages for rent paid. If the action is egregious, you may be able to recover emotional distress damages and in very rare instances, punitive damages!

BREACH OF CONTRACT (LEASE AGREEMENT)

Most rental agreements are in writing. These agreements contain the rules that must be followed. If a landlord breaks any of these rules, you may sue for breach of contract.

Lease not in writing? That’s okay! So long as your lease agreement is not for a year or more, you may still have claims!

Dealing with landlord-tenant issues can be tough. It is a complicated area of law that most attorneys are afraid of. Call Fry Law Corporation for a full evaluation of your landlord tenant issue. We know what we are doing and will go to bat for tenants being taken advantage of by landlords!

Why You Need A Good Lawyer For Your Slip And Fall Injury Lawsuit

If you were recently in a store or out in the public and you slipped or tripped on something and fell, you need a good lawyer. Slip or trip and fall cases present a variety of issues that if not thoroughly explored, may lead to loss of time and money.

One of the threshold issues with slip and fall cases is whether the owner of the property owed the person who fell a legal duty of care. The owner/occupier/lessor of premises is under a duty to exercise ordinary care in the use or maintenance of the premises in order to avoid exposing persons to an unreasonable risk of harm. RESTATEMENT (SECOND) OF TORTS, §343; Rowland v. Christian, 69 Cal. 2d 108 (1968).

This issue is typically easy to overcome as once a person steps foot on someone else’s property with permission, it is presumed that that person or entity should avoid exposing the victim to risk of harm.

The next and far more difficult issue to prove is whether the owner did something that an ordinary person would not have or did not do something that an ordinary person would have. For example, if the floor is wet, an ordinary person would likely take steps to put those around the wet spot on notice that the floor is wet. They’d do this to warn people to be careful. Most defendants in these types of cases are corporate entities such as grocery stores, retail shops, etc. However, governmental entities such as cities, counties and states may also breach this duty.

Governmental entities are responsible for damages caused by unsafe conditions. Gonzalez v. City of San Jose (2004) 125 Cal. App. 4th 1127, 1138-1139.

Here’s where it gets tricky. If you can prove that the defendant owed you a duty to do something (or not do something) and that they did not (or did) and your injuries were caused by it, that’s only the start.

If you can prove all of the above, the defendant can defend the claims based on a few interesting theories.

First, if the defendant can prove that you did something negligent and that action was the actual reason why you slipped or tripped, you may lose or get substantially less. For example, if the floor was wet and there was wet floor signs, if you walked through carelessly, the defendant would blame your conduct and not the water on the floor. This is an issue the jury would decide. If the jury found you to be 100% at fault, you would recover nothing.

Second, if the wet floor or other thing that led to the fall was open and obvious, you may lose. Open and obvious means that any reasonable person would have seen the defect and avoided it. This happens a lot when there is something on the floor that is so obvious that to walk through it anyway would be unreasonable.

Finally, a property owner is not liable for damages arising from a “minor, trivial or insignificant” defect in the property. Whiting v. National City, 9 Cal. 2d 163 (1937). This is another issue for the jury to decide. If they find it was minor, trivial or insignificant, you may lose.

With a complete understanding of these issues, it’s important that you reach out to an attorney to fully evaluate your slip/trip and fall case. Fry Law Corporation is here to do just that. For slip and falls you really need an aggressive attorney who is willing to analyze these issues and not be afraid to present them to a jury.

Trial Period Plan Modification Lawsuits

Hundreds of thousands of California homeowners have faced foreclosure in the recent years. To remedy this, nearly all fifty states have sued the largest financial institutions leading to National Mortgage Settlements. The federal government has even had to step in and created the Making Home Affordable Program, otherwise known as HAMP.

HAMP has led to numerous saved homes. However, banks have still botched loan modification efforts though they receive billions in federal funds.

Fry Law Corporation sees one particular fact pattern all too often. That is, a botched trial period plan modification (“TPP”).

A TPP is a loan modification approval wherein the bank offers a permanent loan modification (or a review) if the borrower makes three trial period payments. If the three payments are made, the bank offers the borrower a permanent loan modification. Well…that’s what they are supposed to do.

Lawsuits ensue!

The problem with the banks is, they can’t seem to keep track of the TPP database. Fry Law Corporation sees botched TPP modifications primarily in the following ways: 1) a borrower has made all three trial payments but never received the permanent modification; 2) a borrower is in the middle of making the three trial payments and the loan is transferred from one servicer to another; and 3) a borrower makes all three trial period payments but is subsequently denied a permanent modification.

The Authority.

TPP lawsuits are based primarily on contract. When a party gets another party to act (or not act) in reliance on a promise, if the person who acted (i.e. made the trial payments), the promise has to be honored by the other side.

This is applicable because the banks are getting borrowers to pay trial payments in reliance on a promise to save the home. The borrower should be afforded an opportunity to keep the home if they hold up their end of the bargain!

The first published case on point is West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780. In West, the Court found that a “trial period plan” is a promise to review the borrowers and approve them for a HAMP sponsored loan modification if they made no misrepresentations about their financial position. (Ibid. at 798) The West panel came to this conclusion because the defendant in that case received federal funds to aid borrowers in default. At 786, a lengthy discussion of the HAMP program ensues and defines a trial period plan as the first stage of the modification process.

West has been followed by several other cases including a great recent opinion in Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150. These cases have applicability to any bank subject to HAMP. Including but not limited to; Wells Fargo Bank, N.A. and Bank of America, N.A.

Courts are requiring that the banks honor the agreement and offer a modification if the home has not been sold. If the home has been sold, the banks are required to pay damages if a borrower prevails.

If you have had a botched TPP modification, you need an attorney who has an extensive knowledge of the law surrounding them. Fry Law Corporation is happy to help.

Personal Injury Claims

Each kind of claim that falls under the classification of tort claims has two fundamental components. The first of these components is the liability whereas the second is the damages. This is regardless of whether the tort committed was intentional, negligence or strict liability. As such, in order for you as an aggrieved party to be successful in your personal injury claims, you must ensure that you prove both liability and damages. The courts can only award you compensation for your loss upon determining that you have sufficiently proved the existence of damages that occurred as a result of a tort committed by the defendant in question and through proving that the defendant is really liable of committing the said tort.

There are many kinds of personal injury cases. One typical example is that of accidents involving vehicles. This is quite a good example of how personal injury cases functions.  In cases where you fall victim of an accident where the driver who caused the accident failed to exercise reasonable care, then you being the victim will be entitled to make a negligence claim in a "fault" state. This is simply because every driver is obligated to ensure that they carry out reasonable care whenever they are on the road (ABA Website, 2017). A breach of this duty by drivers thereby results in damages which upon being sufficiently proved shall require the said driver to compensate the injured party through enabling them to recover their damages. The system may however be different in certain states depending on the legislation that has been put in place in those said states. Aside from motor vehicle accidents, tort claims can stem from a variety of situations as well. Examples of such situations are inclusive of medical malpractice amongst very many other situations.

   Other than negligence, other grounds for personal injury claims are inclusive of strict liability which is has witnessed a significant growth with regards to tort law in the recent past. Strict liability is important as it helps making designers and manufacturers strictly liable for injuries that arise form defective products. A good example lies in the case of Donoghue versus Stevenson where the facts of the case were such that, Mrs. Donoghue drinking a bottle of ginger beer in a café in Paisley, Renfrewshire. A dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson. The House of Lords held that the manufacturer owed a duty of care to her, which was breached, because it was reasonably foreseeable that failure to ensure the product's safety would lead to harm of consumers (Martin, 2008). Such cases do not need the injured person to establish negligence of the manufacturer. The injured person is only required to prove that the product was designed or manufactured in a manner that made it unreasonably dangerous when used as intended (ABA Website, 2017).

The last ground for personal injury is that of intentional wrongs. Examples of such wrongs are inclusive of assault and battery as well as false imprisonment.

It is important to note that just like other civil claims, there are certain time limits with regards to filing of personal injury claims. These time limits are referred to as "statutes of limitations," and their function is to regulate the period of time during which you must file a personal injury lawsuit (ABA Website, 2017).  These statutes of limitations vary depending on the regulations provided in different states. Failure to file for a personal injury case in due time leads to the case being thrown out automatically.

 

References

American Bar Association Website, (2017). Personal injury. Retrieved on January 24th, 2017 from http://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/injury_basis.html

Martin, R. T. (2008). "The Most Famous Litigant". Donoghue vs. Stevenson Digital Resources. Scottish Council of Law Reporting.

AG sues Calif. groups over foreclosure mailings

ALBUQUERQUE, N.M. — A group of California businesses and individuals is accused of trying to bilk thousands of New Mexicans by sending out “deceptive” mass mailings about foreclosure relief and home loan modification, according to a federal lawsuit filed Wednesday.

The suit, filed by Attorney General Hector Balderas, says the group’s mailings mimicked a legitimate government program aimed at helping distressed homeowners.

“These mailers were intended to look like official governmental communication and included a logo which used the name `Keep Your Home New Mexico’ to induce homeowners into believing the program was official,” according to an AG’s news release.

The “Keep Your Home New Mexico” program was set up and funded by the state AG’s Office following the foreclosure crisis in 2008, the suit says.

The California group charged upfront fees for its claimed services, which is illegal in New Mexico unless levied by an attorney licensed in the state, the suit says. It names one attorney, Thomas A. Moore, who is from California, and the Roosevelt Law Center, also of California. A list of companies named includes Miracles for Homeowners Marketing, Inc.

The mailings went out in 2013 and 2014 to 4,400 New Mexicans, at least two of whom paid a total of $4,000 in advance payments, according to the suit and to AG spokesman James Hallinan. That money was reimbursed during the AG’s investigation, Hallinan said.

Original Link: http://www.eastbaytimes.com/2016/12/07/housing-groups-sue-fannie-mae-for-failure-to-take-care-of-foreclosed-properties-in-communities-of-color/

Federal Judge Puts Starbucks Lawsuit on Ice in California

A federal judge has thrown cold water on a lawsuit that claimed Starbucks defrauded customers by adding ice to its cold beverages.

Judge Percy Anderson tossed out the potential class-action lawsuit because a reasonable customer would know that a portion of iced coffee or tea would include ice and they'd be able to see it through the clear plastic cups the beverages are served in. In fact, he said, even a child would get it.

"As young children learn, they can increase the amount of beverage they receive if they order 'no ice,'" Anderson said in a ruling issued Friday in U.S. District Court. "If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the court has no difficulty concluding that a reasonable consumer would not be deceived into thinking ... some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered."

Alexander Forouzesh sued Starbucks Corp. in May for fraud, breach of warranty and false advertising, among other claims.

The Los Angeles man said the chain was cheating customers out of iced coffee and tea by filling cups as much as halfway with ice.

Forouzesh said Wednesday that he plans to appeal and was insulted by the judge's remarks about children.

"Any child can figure out that they're being deceived by Starbucks, as well," he said. "It's not right. The whole point is that we're being deceived."

A Starbucks spokeswoman said the company was pleased with the decision and the judge's remarks. 

Original Link: http://www.nbclosangeles.com/news/local/Federal-Judge-Puts-Starbucks-Lawsuit-on-Ice-in-California--391293691.html



 

Statute of Limitations

A statute of limitations is the deadline for filing a lawsuit. Most lawsuits MUST be filed within a certain amount of time. In general, once the statute of limitations on a case “runs out,” the legal claim is not valid any longer.  

The period of time during which you can file a lawsuit varies depending on the type of legal claim. Here are the statutes of limitations for some common types of legal disputes:

  • Personal injury: Two years from the injury. If the injury was not discovered right away, then it is 1 year from the date the injury was discovered.
  • Breach of a written contract:  Four years from the date the contract was broken.
  • Breach of an oral contract: Two years from the date the contract was broken.
  • Property damage: Three years from the date the damage occurred.
  • Claims against government agencies: You must file a claim with the agency within 6 months (for some cases, 1 year) of the incident. If the claim is denied, you can then file your lawsuit in court but there are strict limits to when, so read the section on government claims and the chart on statute of limitations below.

Original Link: http://www.courts.ca.gov/9618.htm

 

California Legalizes Motorcyclist Lane Splitting

SACRAMENTO, Calif. — California has become the first state in the nation to formalize the practice of lane splitting after state Assembly members Thursday passed a bill authorizing the California Highway Patrol to establish guidelines for motorcyclists on how to do it safely.

The bill, sponsored by Democratic Assembly member Bill Quirk, passed Thursday with a 69-0 vote. On the floor, Quirk said the proposed law had many positives, including reducing traffic congestion and promoting safety.

“No issue is more important to me than roadway safety,” he said.

Lane splitting, in which a motorcyclist passes other vehicles by riding between them along the lane line, has long been a hot issue in the state.

Technically, it has not been legal or illegal, falling in a gray area where it was treated as acceptable by law enforcement agencies. But when the CHP published safe strategies on the practice in 2015, a citizen complained that the agency should not be allowed to create public policy. In came in AB 51.

Quirk’s original bill proposed that lane splitting could occur legally only when a motorcycle was moving no more than 15 miles per hour faster than the traffic around it, and it prohibited the practice at speeds above 50 mph.

Several motorcyclists’ groups objected to that language, finding the speed limit too low. Other groups and individuals, who believe that lane splitting is dangerous regardless of the speed, objected to the proposal on principle.

The revised bill, which has sailed through the legislative process, provides a basic definition of “lane” and leaves the rest to the CHP. “We think it’s a great idea,” said Nicholas Harris of the Western States Representative of the American Motorcyclist Association.

Original Link: http://www.pressherald.com/2016/08/04/california-legalizes-motorcyclist-lane-splitting/

 

Truck Accidents

Truck drivers and manufacturers are held to higher standards than most other drivers, so if something goes wrong, the driver or the truck company may reimburse you for your injuries. Here you'll find helpful information involving truck accidents and the law -- including common causes of truck accidents and frequently asked questions -- as well as tips on protecting your legal rights and what to expect after a truck accident. 

Special Considerations in Truck Accidents

Accidents involving the large commercial trucks present some unique scenarios and issues. A typical fully-loaded "big rig" can weigh 80,000 pounds or more, compared to the average passenger automobile's weight of about 3,000 pounds. Due to the great disparity in size and the basic laws of physics accidents with big rigs can be devastating. The large size of these vehicles also means that the acceleration, braking, visibility, and turning of big rigs are all limited.

Large vehicles such as eighteen-wheelers are prone to "jackknifing" under certain conditions, particularly during sudden braking and turning. This action may not result in liability for the truck driver where they jackknifed due to unforeseeable road conditions or an abrupt turn to avoid a motorist or other obstacle.

Commercial trucks also have difficulty on certain turns. Right turns often require the use of two lanes. Court decisions about whether drifting between lanes in such situations constitute negligence have been divided.

Trucks are often operated by a driver on behalf of a trucking or shipping company. As a result, identifying defendants in a truck accident may be different from an accident with another private motorist. Employers, contractors, trucking companies, and insurance companies may share liability for the driver's negligence. Questions about liability can become complicated where the truck driver is an independent contractor, or where the truck was hauling hazardous materials.

Common Causes of Truck Accidents

Apart from the dangers posed by the size and lack of maneuverability of commercial trucks there are a number of situations that may contribute to accidents with other motorists. Some are the fault of the truck driver, while others are the result of common mistakes made by other motorists.

Truck drivers may pose an increased risk to other motorists where they have inadequate training, systems of compensation that encourage more and faster driving, and unrealistic schedules that result in drivers who are tired or rushed.

Motorists may increase the risk of an accident with a big rig where they abruptly change lanes or merge improperly, where they make a left turn in front of a truck with insufficient space or move to the right of a truck making a right-hand turn, or when they drive in the areas behind and beside the truck where the driver has limited visibility. Wind turbulence may push a car passing a truck unexpectedly and a slow entry into traffic can cause a truck to stop abruptly. Vehicles left on the roadside that provide insufficient space, driving between large trucks, and unsafe passing are additional hazards that motorists create for truck drivers.

Original Link: http://injury.findlaw.com/car-accidents/truck-accidents.html

FLC: Case of the Week--Personal Injury

Plaintiff, a collegiate basketball player, is sitting in her car studying for an exam in the parking lot of her school. Defendant, attempts to make a U-turn in the parking lot and runs into Plaintiff’s car causing a herniated disc in her lower back. Before the accident, Plaintiff was starting each and every game and had potential to make it professionally. After, she was only able to play a portion of each game and will likely never have a chance at playing in the pros.

Personal injury is more than just medical bills. Personal injury is pain, suffering, emotional anguish and loss of enjoyment. The insurance looks at this case as a small case because the bills are not substantial. However, FLC looks at this case as a case that warrants a fight.

When you lose an opportunity like this at the fault of another, you should be made whole, not just have your medical bills paid.

Top Ten Reasons to Hire a Lawyer

Not every legal matter requires the use of an attorney. Fighting a speeding ticket and going to small claims courts are two examples. However, in many other situations involving a legal dispute, challenge, or deal, you may not wish to chance the risks of going it alone without the advice of an experienced lawyer who can help you out. In fact, while good legal representation may not be cheap, it can help get you out of a number of sticky situations.

While each person's legal situation is different, there are times when you really should hire a lawyer. Below are the top ten reasons.

1. The law is complicated. If you are not a lawyer you probably have no business acting like one in certain instances. Even experienced lawyers typically do not represent themselves in court. A solid case can quickly unravel without the help of a trained and emotionally detached attorney. Similarly, failing to hire a lawyer when starting a business, reviewing a contract or embarking on other endeavors with potential legal ramifications can result in otherwise avoidable pitfalls.

2. Not having a lawyer may actually cost you more. What is at stake? A criminal case may determine whether or not you spend time behind bars, while a civil case could hurt you financially. Besides, many civil attorneys don't collect a dime unless they win your case. Also, you may be able to claim legal fees as a plaintiff in a civil case, so hiring a lawyer can actually save or make you money.

3. Lawyers know how to challenge (and sometimes suppress) evidence.You may not even know that a key piece of evidence against you was improperly obtained or that the testimony of a witness contradicts an earlier statement. And did the crime lab properly handle the evidence every step of the way? Your attorney will find out.

4. Attorneys understand how to properly file court documents and handle other legal procedures. If you're not an attorney, you may struggle with the deadlines and protocol for properly filling out and filing certain legal documents. One late or incorrect filing could derail your case, delay a given legal procedure or worse - have the case thrown out altogether (and not in your favor).

5. Because you don't know any expert witnesses or private detectives.Attorneys depend on an extended network of professionals to help their clients' cases. Most non-attorneys do not personally know the types of professionals who can help with discovery or challenge evidence or testimony by the opposing party.

6. You're not sure how to plead -- or what a 'pleading' is? Pleading guilty is not the only choice, even if there is evidence pointing directly at you. An attorney who understands the law will be best situated to explain your options and can help you avoid potentially severe penalties even before a criminal trial begins.

7. Because it is probably better to avoid problems in the first place rather than try to fix them once they arise. You may have heard the saying "an ounce of prevention is worth a pound of cure?" Well, hiring a lawyer in many instances will help you avoid potential legal headaches down the road. Do you really understand the fine print of that contract you are signing? A lawyer will.

8. A good lawyer can strike up a good settlement offer or plea bargain, if necessary. An experienced lawyer probably has seen cases similar to yours or at least knows enough to make a calculated guess about how it might resolve at trial. Sometimes a settlement is the best choice, while other times it makes more sense to see your case through to trial. An attorney also can help negotiate a fair settlement with the opposing party.

9. The other party has legal representation. Non-attorneys are generally at a disadvantage when squaring off against opposing counsel or doing business with another party that has legal counsel. As explained above, the law is complicated and an attorney representing your adversary (or even a non-adversarial party entering into a legal agreement with you) will take advantage of this inequity.

10. Lawyers often provide a free initial consultation. Since many attorneys will meet with you for free during a face-to-face consultation, there is really no harm in talking with one. Not only will a free consultation give you an idea of the type of case you have, it will help you decide whether you actually need to hire a lawyer.

Original Link: http://hirealawyer.findlaw.com/do-you-need-a-lawyer/top-ten-reasons-to-hire-a-lawyer.html

Lawsuit Alleges Unequal Disability Payments For Women

In a case that could have ramifications around the country, a lawsuit filed Wednesday alleges that many disabled California workers get less than their due simply because they are women.

"This discrimination exacerbates and expands the pay gap,'' Kathryn Eidmann, one of the attorneys who filed the lawsuit in Los Angeles Superior Court, told reporters. "We cannot have true equality between the sexes until the fact of being a woman is no longer a reason to compensate women workers even a penny less for injuries on the job.’’

The lawsuit alleges that injured female workers in California are denied equal disability benefits because of systemic gender bias. The case was brought against California state agencies that oversee the dispensing of workers' compensation benefits on behalf of several women injured on their jobs, as well as the 700,000-member Service Employees International Union in California. The plaintiffs are seeking class-action status.

The suit comes at a time when equal pay issues are a hot topic, whether it's in the workplace or on the presidential campaign trail.

Several companies, including Amazon, Intel and Apple, have released details in recent months on what their male and female employees earn. And in February, Apple’s CEO Tim Cook said that the company, having found that female staffers were paid 99.6% of what their male counterparts earned, is committed to making wages equal regardless of gender. Democratic presidential candidate Hillary Clintonhas spoken often of the need for women to earn the same as their male colleagues doing the same job, signaling that it could become a top issue in her match-up against Republican Donald Trump.

Permanent disability benefits are often reduced, the suit claims, because an injury or condition is linked in part to gender-based "risk factors" like menopause. And the ramifications of some illnesses mostly associated with women, such as breast cancer, are considered less disabling than those that affect men, which can result in a denial of compensation .

One plaintiff, Janice Page, was diagnosed with breast cancer in February 2012 and ultimately underwent a mastectomy. Workers' comp officials determined that Page, a corrections officer  with nearly 30 years in law enforcement, contracted cancer after being exposed to toxins in the course of her work. However, a medical evaluator, adhering to American Medical Association guidelines, said that she had no permanent impairment, and so her insurance company denied her permanent-disability compensation.

Those guidelines give no impairment rating to women who undergo a mastectomy past childbearing age even if they were found to have breast cancer because of work conditions. The impairment rating for a woman who can still bear children is up to 5%. Yet a man whose prostate is removed because of cancer is usually assigned an impairment rating between 6% and 20%, according to the complaint.

“I should not be discriminated against, and have my disability compensation reduced, because of a bias against women,'' Page said at the news conference. "It’s not fair for me or my fellow female officers to be penalized because of our gender.''

In an emailed statement, Christine Baker, director of the Department of Industrial Relations which monitors workers' compensation claims, called the charges in the lawsuit “misleading and superficial.’’

“The Department of Industrial Relations and its Division of Workers’ Compensation take allegations of gender discrimination in the workers’ compensation system seriously,’’ Baker said. “When the plaintiffs’ counsel sent a demand letter to the department dated April 20, 2016, we investigated the examples they cited.  The examples did not support the inflammatory accusations of systemic gender bias in California’s workers’ compensation system, and we requested more information from plaintiffs’ counsel to substantiate their claims.’’

Instead of providing more evidence, Baker says, the plaintiffs filed suit. “The department will vigorously defend the workers’ compensation system against these unfounded accusations.’’

The suit asks the court to find that such actions violate both federal and state law and to order California’s workers’ comp system to root out gender bias, implementing staff training, monitoring and taking punitive action when discrimination is discovered.

The current system "sends a clear message that women’s work is worth less, and that plaintiffs — many of whom have worked for decades as one of the few women in a male-dominated field — are valued less than their male colleagues," the lawsuit states. "Such a message denigrates the contributions of women to the workplace and perpetuates women’s unequal status.’’

Original Link to Article: http://www.usatoday.com/story/money/2016/07/06/lawsuit-filed-guarantee-california-women-same-disability-payments-men/86754760/

Judge Allows Lawsuit Claiming Starbucks Underfills Lattes

Two people who accused Starbucks of deliberately underfilling lattes can continue their lawsuit after a federal judge in California dismissed three counts against the beverage retailer but allowed five to remain.

The plaintiffs, Siera Strumlauf and Benjamin Robles, contended in a class-action complaint filed in March that the popular drinks were underfilled by about 25 percent of their advertised sizes: 12, 16 and 20 ounces.

Starbucks had argued that a “reasonable consumer” would not have been misled.

But Judge Thelton Henderson of United States District Court in San Francisco said in his ruling on Friday, “This is not a case where the alleged deception is simply implausible as a matter of law.”

“The court finds it probable that a significant portion of the latte-consuming public could believe that a ‘Grande’ contains 16 ounces of fluid, measured without milk foam or in its cooled state,”he wrote. “If nothing else, it is probable enough that the issue should be decided by a trier of fact, not on a motion to dismiss.”

In their complaint, the plaintiffs said Starbucks used cups that held the advertised amounts only when filled to the brim, but that the drinks were not filled that high. They said that in 2009, Starbucks made a “conscious decision” to save money on milk by using pitchers with etched-in “fill to” lines that were too low, and the recipe required baristas to fill a quarter-inch below the brim of the cups, the lawsuit says.

In a statement, Starbucks said the lawsuit was “without merit.”

“All of our handcrafted beverages are made in accordance with our customers’ preferences,” the company said. “If a customer is not satisfied with their beverage preparation, we will gladly remake it. We will be prepared to defend our case in court.”

It’s not the first time that Starbucks has been sued over its drinks. A separate class-action lawsuit in April by Stacey Pincus of Chicago accused the company of putting too much ice in cold drinks, leaving consumers with just over half the amount they paid for, according to Courthouse News.

Starbucks called that lawsuit “without merit,” as well.

Original Link: http://www.nytimes.com/2016/06/22/business/judge-allows-lawsuit-claiming-starbucks-underfills-lattes.html 

By DANIEL VICTORJUNE 21, 2016

 

The president just signed a law that affects nearly every product you use

President Obama signed a bill into law Wednesday that places stronger regulations on chemicals present in nearly every product Americans use, including detergents, clothing, paint thinners, cleansers and automobiles.

The Frank R. Lautenberg Chemical Safety for the 21st Century Act passed by Congress early this month in a rare bipartisan vote. It updates the Toxic Substances Control Act, which had not been reauthorized since the Ford administration in the mid-1970s. The new law gives the Environmental Protection Agency more oversight and stronger tools to monitor chemicals that in some cases could cause cancer and other health problems in adults and children.

Minutes before signing the law, Obama said the bill's passage showed that "even in the current polarized political process here in Washington, things can work." He added: "Somewhere on the horizon we can make politics less toxic as well."

Congress passed the legislation after decades of criticism from environmental groups that called on lawmakers to fix what they called "one of the worst environmental laws on the books." Federal oversight over chemicals was so weak that a court ruled the EPA lacked the power to fully regulate use of asbestos.

EPA Administrator Gina McCarthy said the TSCA was well meant when it was originally passed but "without major changes to the law, EPA couldn’t take the actions necessary to protect people from toxic chemicals."

"The updated law gives EPA the authorities we need to protect American families from the health effects of dangerous chemicals," McCarthy said in a statement. "And at EPA, we’re excited to get to work putting it into action."

Now the EPA is expected to start reviewing at least 10 potentially toxic chemicals that are commonly found in households and businesses across the country: asbestos, formaldehyde and flame retardants. Those chemicals are in the framework of homes, cars, family sofas, clothing and even newspaper ink.

Remarking on the bill's passage, Sen. Tom Udall (D-N.M.) explained why the old law fell short. "Most Americans believe that when they buy a product at the hardware store or the grocery store, that product has been tested and determined to be safe," he said. "But that isn't the case. Americans are exposed to hundreds of chemicals from household items."

The Society of Chemical Manufacturers and Affiliates praised the bill's passage as historic and said it "begins the process of regaining the public's confidence in everyday products made possible by our industry."

The reaction of environmental groups was deeply split, with some hailing the bill as a new way forward and others calling it a disappointment.

Richard Denison, a lead scientist at the Environmental Defense Fund, called it "a strong new TSCA." Unlike the old version, the new law allows the EPA to stop a potentially dangerous chemical from going to market. A consideration of high risk populations, such as pregnant women and children, will factor into decisions on whether to approve chemicals. Chemicals with high priority concerns will get faster reviews, and companies can no longer hide behind "trade secret" claims to shield the identity of chemicals they use so officials can't investigate them.

But the Environmental Working Group said the bill got a lot wrong. States would be stripped of their power to stop products they deem suspicious from going to market for up to three years during an EPA investigation. Congress doesn't provide the agency with adequate funding to take on a stronger oversight role, the group said. And EPA must factor in the cost to a company for eliminating a chemical deemed harmful to public safety.

"The failure to include a bulletproof safety standard or sufficient resources, along with the uncertain effects of new restrictions on state action, could ultimately result in less regulatory action than supporters claim," Melanie Benesh, an attorney, and Scott Faber, vice president of government affairs, wrote for EWG.

Chemical companies can continue to tie up the EPA's oversight in the courts, "which is exactly what happened 25 years ago when the courts overturned EPA’s attempt to ban asbestos."

Original Link: https://www.washingtonpost.com/news/speaking-of-science/wp/2016/06/22/obamatoxic/ 

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