FREQUENTLY ASKED QUESTIONS

WHAT IS AN APPEAL?

An appeal is a legal process where a higher court reviews a lower court's decision. It is pursued when one party believes there was an error in the trial's procedure or the judge's interpretation of the law. Successful appeals can result in reversing or modifying the lower court's decision.

HOW LONG DO I HAVE TO FILE AN APPEAL?

In California, the timeframe to file an appeal varies depending on the type of case. Generally, for civil cases, you have 60 days from the date of the judgment or order to file a notice of appeal. For criminal cases, the deadline is typically 30 days. Missing these deadlines can result in losing the right to appeal. Always consult the specific rules or seek legal advice to ensure compliance with the correct filing period.

HOW LONG DOES AN APPEAL TYPICALLY TAKE?

The duration of an appeal process can vary, but in California, it typically takes between 12 to 18 months. This timeframe includes filing briefs, oral arguments, and waiting for the court's decision. Complex cases or those with extensive records may take longer. It's important to note that each step of the appeal process has specific deadlines that must be met. The overall length can also be influenced by the caseload of the appellate court.

DOES THE OTHER SIDE PAY MY ATTORNEYS' FEES OR COSTS IF I WIN THE APPEAL?

In California, if a litigant wins an appeal, they may be entitled to recover attorneys' fees and costs. The prevailing party can file a motion to claim these expenses from the losing party.

WHAT IS ARBITRATION?

Arbitration is a method of dispute resolution where parties agree to submit their conflict to one or more arbitrators instead of going to court. An arbitrator is a neutral third party chosen to hear both sides of the dispute and make a binding decision. Arbitration is a private and less formal process than a trial, and the arbitrator's decision is usually final. It can be faster and more cost-effective than traditional litigation. This method is commonly used in commercial disputes, employment matters, and consumer contracts. The rules and procedures of arbitration are typically outlined in an arbitration agreement between the parties.

WHAT ARE THE ADVANTAGES & DISADVANTAGES OF ARBITRATION VERSES GOING TO COURT?

Arbitration has several advantages over going to court, including being faster, more cost-effective, and offering greater privacy since proceedings are not public. Additionally, parties have more control over selecting an arbitrator with specific expertise relevant to their dispute. However, arbitration also has disadvantages, such as limited opportunities for appeal and the potential for high arbitrator fees. Unlike court rulings, arbitration decisions are binding and typically cannot be contested. Additionally, there may be concerns about the neutrality of arbitrators, especially if they are chosen by one of the parties involved.When a trial court has entered an order or a judgment based upon a legal error, the aggrieved party may appeal or petition for relief to a higher court, call the Court of Appeal. In California, we have six District Courts of Appeal assigned to hearing appeals from lower courts within their jurisdiction. The Sixth District Court of Appeal, in San Jose, hears appeals from the Superior Courts in Santa Clara, Santa Cruz, Monterey and San Benito counties. The parties to an appeal or petition “perfect” the record (placing the record of what happened in the trial court before the court of appeal), research and file briefs, and ultimately argue the matter before a panel of three justices. Once the matter is submitted, the Court of Appeal has 90 days to issue its decision. After, a party can petition to the Supreme Court for review of the appellate court’s decision, but in civil matters, it is exceedingly rare that the Supreme Court will take the case, so it is imperative that appellate attorneys put their best foot forward in the intermediate court of appeal.

WHAT IS A PRE-MARITAL AGREEMENT?

A pre-marital agreement, also known as a prenuptial agreement, is a legal contract entered into by a couple before they get married. This agreement outlines the division of assets, debts, and financial responsibilities in the event of divorce or death. Pre-marital agreements can also address issues such as spousal support and property rights. They are particularly useful for protecting individual assets and clarifying financial expectations. In California, these agreements must meet specific legal requirements to be enforceable.

WHAT IS A POST-MARITAL AGREEMENT?

A post-marital agreement, also known as a postnuptial agreement, is a legal contract between spouses after they are married. This agreement outlines the division of assets, debts, and financial responsibilities in the event of separation, divorce, or death. Post-marital agreements can address issues such as spousal support and property rights, similar to pre-marital agreements. They are useful for couples who want to clarify financial expectations or protect individual assets acquired during the marriage. In California, these agreements must comply with specific legal standards to be enforceable. Additionally, a valid post-marital agreement requires consideration, meaning something of value must be exchanged between the spouses. This could include financial concessions or property rights.

HOW CAN I PROTECT MY ASSETS BY FORMING A BUSINESS?

Forming a business can protect your personal assets by legally separating them from your business liabilities. By creating a limited liability company (LLC) or corporation, you shield your personal property, such as your home and savings, from business debts and lawsuits. This legal structure ensures that creditors can only claim business assets, not personal ones. Additionally, proper business formation can provide tax benefits and enhance credibility. In California, following the correct legal procedures is crucial to maintaining this protection.

WHAT IS A LIMITED LIABILITY CORPORATION (AN “LLC”)?

A limited liability corporation (LLC) is a legal business structure that provides personal liability protection to its owners, known as members. This means that members' personal assets are generally protected from business debts and claims. An LLC combines the flexibility of a partnership with the liability protection of a corporation. It also offers tax advantages, as profits and losses can pass through to the members' personal tax returns. In California, forming an LLC requires filing specific documents with the state and adhering to ongoing compliance requirements.

WHAT IS A LIMITED LIABILITY PARTNERSHIP (AN “LLP”)?

A limited liability partnership (LLP) is a legal business structure that offers personal liability protection to its partners. This means partners are not personally responsible for the LLP's debts or liabilities incurred by other partners. LLPs combine the flexibility of a general partnership with the liability protection similar to a corporation. They are commonly used by professional services firms, such as law firms and accounting practices. In California, forming an LLP requires filing specific documents with the state and complying with ongoing regulatory requirements.

COULD I FACE ANY PERSONAL LIABILITY IN A BUSINESS LITIGATION MATTER?

Yes, you could face personal liability in a business litigation matter under certain circumstances. If you operate as a sole proprietor or general partner, your personal assets may be at risk. Even with an LLC or corporation, personal liability can arise if you personally guarantee a business debt, commit fraud, or fail to maintain proper separation between personal and business finances. In California, it's crucial to follow legal formalities and maintain good business practices to minimize personal liability. Always consult with a legal professional to understand your specific risks and protections.

WHAT ARE THE POTENTIAL DAMAGES I CAN RECOVER IN A BUSINESS LITIGATION CASE?

In a business litigation case, the potential damages you could recover include compensatory damages, which cover actual losses such as lost profits and expenses. You may also recover consequential damages for losses indirectly caused by the breach or wrongdoing. In some cases, punitive damages may be awarded to punish and deter particularly egregious behavior. Additionally, you could recover liquidated damages if specified in a contract. In California, the specific damages available depend on the nature of the case and applicable laws.

WHAT IS A BREACH OF FIDUCIARY DUTY BETWEEN BUSINESS PARTNERS?

A breach of fiduciary duty between business partners occurs when one partner fails to act in the best interests of the partnership or the other partners. Fiduciary duties require partners to act with loyalty, care, and good faith in managing the business. Common breaches include self-dealing, misappropriating business assets, and failing to disclose relevant information. Such breaches can lead to legal action and damages for any harm caused. In California, fiduciary duties are taken seriously, and violations can result in significant legal consequences.

WHAT ARE THE IMPORTANT TERMS TO NEGOTIATE IN A COMMERCIAL LEASE?

When negotiating a commercial lease, important terms to consider include the rent amount and payment schedule, lease duration, and renewal options. Also, review the responsibility for maintenance and repairs, as well as the allocation of property taxes and insurance costs. Pay attention to any clauses related to subleasing and assignment, as well as the conditions for lease termination. Ensure the lease outlines any tenant improvement allowances and restrictions on property use. It's crucial to consult with a lawyer to ensure you are fully protected in your commercial lease agreement.

CAN I GET ATTORNEY’S FEES IN A LAWSUIT ABOUT A COMMERCIAL LEASE?

Yes, you can recover attorney’s fees in a lawsuit about a commercial lease if the lease agreement includes an attorney’s fees provision. This provision typically states that the prevailing party in a legal dispute is entitled to recover reasonable attorney’s fees and court costs. Without this clause, each party generally bears their own legal expenses. In California, such provisions are enforceable and can significantly impact the financial outcome of a lease dispute. Always review your commercial lease carefully to understand your rights and obligations regarding attorney’s fees.

WHAT IS A CONTRACT?

A contract is a legally binding agreement between two or more parties that creates mutual obligations enforceable by law. Contracts can be written or oral and must include an offer, acceptance, consideration, and mutual intent to be bound. They are essential in various transactions, including business deals, employment agreements, and sales of goods or services. In California, contracts must comply with state laws and regulations to be valid. Understanding the terms and conditions of a contract is crucial to ensure legal protection and enforceability.

WHAT IF I HAVE AN ORAL CONTRACT, INSTEAD OF A WRITTEN CONTRACT?

An oral contract can be legally binding, but it is often harder to prove than a written contract. In California, certain agreements, like those involving real estate or contracts that cannot be performed within a year, must be in writing to be enforceable. Without written documentation, enforcing an oral contract relies on witness testimony and other evidence. Disputes over oral contracts can be more complex and challenging to resolve. It is advisable to document agreements in writing to ensure clarity and legal protection.

WHAT IS THE STATUTE OF LIMITATIONS IN A CONTRACT DISPUTE?

The statute of limitations refers to the time limit within which a lawsuit must be filed. In California, the statute of limitations is four years for written contracts and two years for oral contracts. This period starts from the date of the breach or when the breach should have been discovered. If the lawsuit is not filed within this timeframe, the right to sue may be lost. Understanding these deadlines is crucial to protect your legal rights in contract disputes.

WHAT SHOULD I DO IF I WAS PAID LATE?

If your employer paid you late, document the late payment dates and any communications regarding the delay. Under California labor laws, employers are required to pay wages promptly, and late payments can entitle you to penalties. File a complaint with the California Labor Commissioner or seek legal advice to understand your rights and potential remedies. Employers may face fines and be required to pay additional compensation for late wages. Ensuring timely wage payments is essential for protecting your financial stability and legal rights.

WHAT ARE WAITING TIME PENALTIES?

In employment law, waiting time penalties refer to the compensation owed to an employee when an employer willfully fails to pay final wages on time. Under California law, these penalties accrue daily at the employee’s regular rate of pay, up to a maximum of 30 days. Waiting time penalties are intended to encourage prompt payment of wages upon termination or resignation. If you experience delayed final wages, you may be entitled to these penalties. Understanding your rights under California labor laws can help ensure timely wage payments.

WHAT SHOULD I DO AFTER I’VE BEEN FIRED?

After being fired, collect any documentation related to your employment. Review your final paycheck to ensure all owed wages and unused vacation are included, as required by California labor laws. Apply for unemployment benefits through the California Employment Development Department (EDD) and update your resume to start your job search. If you believe your termination was unlawful, consult with an employment attorney to explore potential legal actions. Understanding your rights can help you navigate this challenging time effectively.

WHAT SHOULD I DO IF I’M LAID OFF?

If you’re laid off, review your final paycheck to ensure you receive all entitled wages, including any accrued vacation, as required by California labor laws. Next, consider consulting with an employment attorney to review any severance agreement and understand your rights. Apply for unemployment benefits through the California Employment Development Department (EDD) to support your income during the transition. Update your resume and start searching for new job opportunities immediately.

I RECEIVED A SEVERANCE AGREEMENT FROM MY FORMER EMPLOYER. SHOULD I SIGN IT?

Before signing a severance agreement from your former employer, carefully review the terms and conditions, as it may waive certain legal rights. It’s advisable to consult with an employment attorney to understand the implications and ensure the agreement is fair and compliant with California labor laws. The agreement might include clauses on confidentiality and the release of claims that can significantly impact your future. An attorney can explain these clauses to you, and they could also help negotiate for higher severance pay and better terms. Protecting your rights and interests is crucial before making a decision.

WHAT SHOULD I DO IF I’M DEMOTED AT WORK?

If you're demoted at work, document the reasons provided for the demotion and any relevant communications. Review your employment contract and company policies to understand your rights and whether the demotion complies with California labor laws. Discuss the demotion with your employer to seek clarification and explore possible resolutions. If you believe the demotion was unjust or discriminatory, consult with an employment attorney to evaluate your legal options.

WHAT SHOULD I DO IF I’VE BEEN DISCRIMINATED AGAINST AT WORK?

If you're discriminated against at work, document the incidents with detailed notes on what happened, including dates, times, and witnesses. Report the discrimination to your HR department or supervisor following your company's procedures. Under California employment laws, you have the right to a workplace free from discrimination based on race, gender, age, disability, and other protected characteristics. File a complaint with the California Civil Rights Department (CA CRD) if the issue is not resolved internally. Consulting with an employment attorney can help you understand your rights and pursue any necessary legal action.

WHAT ROLE CAN A LAW FIRM PLAY IN HELPING VICTIMS OF FINANCIAL ELDER ABUSE RECOVER STOLEN ASSETS?

Attorneys can investigate the abuse, gather evidence, and identify the responsible parties. They can file lawsuits to reclaim misappropriated funds and seek damages for the victim. Under California law, elder abuse claims can lead to significant financial recovery and legal remedies. Legal professionals can also assist in securing protective orders and preventing further exploitation.

WHAT ARE THE STATUTES OF LIMITATIONS FOR FILING FINANCIAL ELDER ABUSE CLAIMS?

The statutes of limitations for filing financial elder abuse claims in California generally require that the lawsuit be filed within four years from the date the abuse was discovered or should have been discovered. Consulting with an attorney can ensure compliance with these timeframes and protect your rights.

DO CASES OF FINANCIAL ELDER ABUSE NEED TO INVOLVE SIGNIFICANT MONETARY LOSSES TO BE ACTIONABLE? 

No, cases of financial elder abuse do not need to involve significant monetary losses to be actionable. Any unauthorized use or exploitation of an elder's assets, regardless of the amount, can be grounds for legal action. California law protects elders from financial abuse, emphasizing the wrongful act rather than the financial magnitude. Evidence of misappropriation, coercion, or undue influence is sufficient to pursue a claim. Protecting elders from financial exploitation is critical, irrespective of the loss's size. And the losses could grow in size if the problem is not addressed.

WHAT EVIDENCE IS NEEDED TO PROVE FINANCIAL EXPLOITATION OF AN ELDERLY PERSON?

To prove financial exploitation of an elderly person, evidence is needed to demonstrate improper use of the elder's funds, property, or assets. This can include bank statements, financial records, and documents showing unauthorized transactions or transfers. Testimony from the elderly person, witnesses, and experts can also support the claim. Evidence of coercion, manipulation, or undue influence, such as emails, texts, or recorded conversations, is crucial. 

WHAT IS MEDIATION AND HOW DOES IT DIFFER FROM LITIGATION OR ARBITRATION?

Mediation is a voluntary dispute resolution process where a neutral third party, the mediator, helps the parties reach a mutually agreeable solution. Unlike litigation, which involves a court trial and a judge's decision, or arbitration, where an arbitrator makes a binding ruling, mediation focuses on negotiation and collaboration. Mediation is typically faster, less formal, and more cost-effective than litigation or arbitration. In California, mediation is often mandatory before your trial. Understanding the benefits of mediation can help you choose the best method for resolving your legal issues.

WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF MEDIATION COMPARED TO TRIAL?

Mediation offers several advantages over trial, including being faster, less expensive, and more private. It allows parties to maintain control over the outcome and fosters cooperative solutions. However, mediation also has disadvantages, such as the lack of a binding decision if no agreement is reached and the potential for power imbalances to affect the process. In contrast, a trial provides a definitive, legally enforceable judgment but can be time-consuming, costly, and public. Understanding these pros and cons of mediation can help you decide the best approach for resolving your dispute.

WHAT ARE COMMON TYPES OF REAL ESTATE DISPUTES?

Common types of real estate disputes include boundary disputes, where property lines are contested, and landlord-tenant disputes, involving issues like lease agreements and eviction. Other frequent disputes involve breach of contract in real estate transactions, such as failure to disclose property defects or incomplete transactions. Easement and right-of-way disagreements, zoning and land use conflicts, and title defects are also prevalent. In California, these disputes often require legal intervention to resolve and protect property rights. Understanding these common issues can help you identify and address potential real estate conflicts.

WHAT STEPS SHOULD I TAKE IF I AM INVOLVED IN A PROPERTY BOUNDARY DISPUTE?

If you are involved in a property boundary dispute, start by reviewing your property deed and any related documents to understand your property's legal boundaries. Hiring a licensed surveyor to conduct a professional survey can provide an accurate assessment of the boundary lines. Attempt to resolve the dispute amicably by discussing the issue with your neighbor, supported by the survey results. If an agreement cannot be reached, consult with a real estate attorney experienced in California property law to explore legal options, such as mediation or litigation. Taking these steps can help protect your property rights and resolve the dispute effectively.

WHAT ARE MY LEGAL OPTIONS IF A REAL ESTATE TRANSACTION FALLS THROUGH?

If a real estate transaction falls through, your legal options include negotiating a new agreement or pursuing mediation to resolve disputes. You may also file a lawsuit for breach of contract to seek damages or specific performance, which requires the other party to complete the transaction as agreed. Reviewing the contract terms and any contingencies is crucial to understanding your rights. Consulting with a real estate attorney experienced in California law can help you determine the best course of action. Protecting your interests in a failed real estate transaction is essential to recovering potential losses.

WHAT SHOULD I DO IF I DISCOVER A DEFECT IN A PROPERTY AFTER PURCHASE?

If you discover a defect in a property after purchase, first review your purchase agreement and disclosure documents to see if the defect was disclosed. Document the defect with photos and detailed notes. Notify the seller in writing about the defect and request a resolution, such as repairs or compensation. If the seller refuses to address the issue, consult with a real estate attorney experienced in California law to explore legal options, including potential claims for misrepresentation or breach of contract. Protecting your rights and ensuring proper remedies for undisclosed property defects is crucial.

WHAT IS SPECIFIC PERFORMANCE IN REAL ESTATE LITIGATION?

Specific performance in real estate litigation is a legal remedy where the court orders a party to fulfill their obligations under a real estate contract. This remedy is often used when monetary damages are insufficient, particularly in unique property transactions. In California, a buyer or seller can seek specific performance to compel the other party to complete the sale as agreed. To obtain specific performance, the requesting party must prove that they have met all contractual requirements and that the property is unique. Understanding specific performance can help protect your interests in real estate transactions.

HOW ARE EASEMENT AND RIGHT-OF-WAY DISPUTES HANDLED?

Easement and right-of-way disputes are handled by reviewing the property deeds and any recorded easement agreements to determine the legal rights involved. If the terms are unclear, a surveyor may be needed to define the exact boundaries and usage rights. Mediation or negotiation can often resolve these disputes amicably between property owners. If a resolution cannot be reached, litigation may be necessary, where a court will interpret the easement and rule on the dispute. Consulting a real estate attorney can provide guidance and protect your rights in easement and right-of-way conflicts.

WHAT ARE THE LEGAL IMPLICATIONS OF A TITLE DEFECT?

The legal implications of a title defect can include challenges to property ownership, financial losses, and potential disputes with third parties. Title defects, such as liens, encumbrances, or errors in public records, can prevent the clear transfer of property ownership. In California, resolving a title defect may require legal action to clear the title, which can involve litigation or negotiations with creditors or other claimants. Title insurance can provide some protection against unforeseen defects. Addressing title defects promptly is essential to securing property rights and ensuring smooth real estate transactions.

HOW CAN I CHALLENGE A ZONING OR LAND USE DECISION?

Consulting with a real estate attorney experienced in zoning and land use laws can provide guidance and increase the chances of a favorable outcome. To challenge a zoning or land use decision, an attorney will begin by reviewing the specific decision and the applicable zoning laws or ordinances in your area. File an appeal with the local zoning board or planning commission within the required timeframe, presenting evidence and arguments supporting your position. If the appeal is unsuccessful, you can file a lawsuit in a California court to seek judicial review of the decision. Understanding the legal process is crucial for effectively challenging zoning decisions.

HOW CAN I BEST PREPARE MYSELF TO TESTIFY EFFECTIVELY?

To prepare yourself to testify effectively, review all relevant documents and facts related to your case to ensure you understand them thoroughly. Practice answering potential questions clearly and concisely, focusing on the truth. Dress professionally and arrive at the court early to familiarize yourself with the surroundings. Listen carefully to each question asked, and take your time to respond accurately without speculation. Consulting with your attorney can provide additional guidance and confidence for your testimony in a California court.

DO MOST CASES ACTUALLY GO TO TRIAL, OR DO THEY SETTLE BEFORE REACHING THAT STAGE?

Most cases do not go to trial; they typically settle before reaching that stage. Settlement negotiations and alternative dispute resolution methods, such as mediation or arbitration, often resolve disputes more efficiently. Settling a case can save time, reduce legal costs, and provide more control over the outcome. Only a small percentage of cases proceed to trial. Understanding the likelihood of settlement versus trial can help manage expectations and strategy.

IF I RECEIVE AN UNFAVORABLE OUTCOME AT TRIAL, WHAT ARE MY OPTIONS FOR APPEAL?

If you receive an unfavorable outcome at trial, you can file an appeal to have a higher court review the decision. In California, you must file a notice of appeal within a specific timeframe, typically 30 days for criminal cases and 60 days for civil cases. The appellate court will examine the trial record for legal errors that could have affected the verdict. It's important to consult with an appellate attorney to evaluate the merits of your case and navigate the complex appeals process. An appeal can potentially overturn or modify the original decision if significant legal mistakes are found.

HOW MUCH DOES A TYPICAL TRIAL COST IN TERMS OF LEGAL FEES AND EXPENSES?

The cost of a typical trial can vary widely, but legal fees and expenses can range from tens of thousands to hundreds of thousands of dollars. Factors influencing the cost include the complexity of the case, the length of the trial, and the attorneys' hourly rates. In California, costs may also include court fees, expert witness fees, and costs for gathering and presenting evidence. Additional expenses such as deposition costs, travel, and document preparation can further increase the total. Understanding these potential costs is crucial for effective legal and financial planning.

WHAT IS PROBATE?

Probate is the legal process of administering a deceased person's estate, ensuring debts are paid and assets are distributed according to their will or state law. In California, probate involves validating the will, appointing an executor, and inventorying the estate's assets. This process can include paying outstanding debts and taxes before distributing the remaining assets to beneficiaries. Probate can be time-consuming and costly, depending on the estate's complexity. Understanding probate is crucial for effective estate planning and protecting your assets.

WHAT IS A TRUST?

A trust is a legal arrangement where one party, known as the trustee, holds and manages assets on behalf of another party, called the beneficiary. Trusts are used to control how and when assets are distributed, often providing tax benefits and avoiding probate. In California, trusts can be revocable or irrevocable, depending on whether they can be altered after creation. Trusts are commonly used in estate planning to protect assets and ensure they are distributed according to the grantor's wishes. Understanding trusts can help in creating a comprehensive estate plan.

WHAT IS A TRUSTEE?

A trustee is an individual or entity appointed to manage and administer the assets held in a trust on behalf of the beneficiaries. The trustee has a fiduciary duty to act in the best interests of the beneficiaries, ensuring the trust's terms are followed. In California, a trustee's responsibilities include managing investments, distributing assets, and maintaining accurate records. Trustees must act with loyalty, care, and impartiality to fulfill their legal obligations. Understanding the role of a trustee is essential for effective trust administration and estate planning.

WHAT ARE A TRUSTEE’S FIDUCIARY DUTIES? 

A trustee's fiduciary duties include acting in the best interests of the trust beneficiaries with loyalty, care, and impartiality. Trustees must manage trust assets prudently, avoid conflicts of interest, and ensure transparency by keeping accurate records and providing regular reports to beneficiaries. In California, these duties also require the trustee to follow the terms of the trust document and comply with relevant laws. Breach of fiduciary duty can lead to legal consequences and financial liability.