The Time of Discovery and the Statute of Limitations

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The statute of limitations plays an important role in personal injury cases in California. More specifically, the statute of limitations generally operates to prohibit injury victims and plaintiffs from bringing lawsuits against defendants if a certain amount of time has passed. There are a variety of statutes of limitations: in California, personal injury cases (such as slip and falls, car crashes, and catastrophic injuries) must be brought within two years. Courts typically begin the statute of limitations “clock” on the date that the injury incident occurred. For example, if a victim suffered injuries in a car crash on December 31, 2016, that victim would have until December 31, 2018 to bring a lawsuit against the parties he or she felt were responsible for causing his or her crash.

What Happens if the Statute of Limitations is Exceeded?

The statute of limitations does not technically stop a plaintiff from filing a lawsuit out of time; however, the defendant or defendants named in the suit would have the opportunity to raise the expiration of the statute of limitations as a defense to the suit. At this point, evidence and/or testimony may be received by the court and the court may subsequently:

Find that the statute of limitations has indeed expired and dismiss the case. This terminates the case and the plaintiff is not eligible to refile the lawsuit again; or
Find that an exception to the statute of limitations applies, that the statute of limitations period has not passed, and allow the case to proceed.

Exceptions to the statute of limitations are exceedingly rare. However, California and other states may permit the statute of limitations period be “tolled” (or stopped) for a period of time if your injuries were not easily discoverable.

Tolling the Statute of Limitations Based on the “Discovery of Harm” Rule

If you took reasonable steps to obtain medical evaluation and treatment after your injury accident (such as proceeding immediately to a hospital or urgent care center and following your doctors’ orders) and you were nonetheless oblivious about the extent of your injuries, the court may toll the statute of limitations until the time it believes you either discovered your accident-related injuries or you should have known about your injuries. Consider two examples, using the hypothetical crash above:

If you did not learn that you suffered a serious tissue injury until you went to the doctor on June 1, 2017 for a routine checkup and you had no other indications of injury, the statute of limitations period may begin to run on June 1, 2017.
If you began to feel excruciating pain a week after the crash but did not see a doctor until June 1, 2017, the statute of limitations period may begin to run on the date you began experiencing the pain.

Contact Your California Personal Injury Law Firm Today

Even if you believe the statute of limitations has passed in your case, it does not hurt to have your case evaluated by the experienced and professional personal injury lawyers in the Inland Empire. We fight to help our clients obtain compensation, and we can evaluate the facts of your case to see if an exception to the statute of limitations would permit your case to proceed. Call us at (951) 682-6400 or complete our online form and discuss your personal injury case with us today.

Photo Credit: https://www.flickr.com/photos/mcfarlandmo/

How to Vacate a Judgment in California

By

Nathan Mubasher

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How to vacate a judgment in California is the topic of this article. This article will discuss four of the most common methods by which a default or judgment can be vacated in California.

DISCRETIONARY RELIEF UNDER CCP SECTION 473(b)

The first and most well known method for vacating a default or judgment is filing a motion to vacate under Code of Civil Procedure section 473(b) on the grounds of mistake, inadvertance, surprise or excusable neglect.

This is the most commonly used method for vacating a default or judgment in California. California Code of Civil Procedure § 473(b) states in pertinent part that:

“The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

This motion is known as discretionary relief as the judge has the discretion to grant or deny the motion.

Note that the code section states that the motion must be made within a reasonable period of time and that six months is the deadline. This means that the moving party must act quickly. As a result of this requirement for action within a reasonable time, a moving party has the burden of showing that he or she acted diligently once learning of the judgment. Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420. Whether a party acted diligently is a question of fact for the trial court. (Ibid.)

Another factor to consider is that the California courts have held that the six-month period runs from entry of default, not entry of judgment. See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.

A motion to vacate a default or judgment under section 473 is typically filed when a party has been served with a summons and complaint but failed to file a timely response due to a medical or family emergency or other similar situation. As every case is unique it is best to consult with an experienced attorney who can review the situation and determine the best course of action.

There are several requirements that the moving party must meet when filing a motion for discretionary relief under section 473. They must show that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and provide a copy of their proposed pleading along with their motion, or file it as soon as possible before the hearing.

MANDATORY RELIEF UNDER CCP SECTION 473(b)

The second method of vacating a default or judgment in California is mandatory relief under Code of Civil Procedure section 473(b) using an attorney affidavit of fault.

Code of Civil Procedure section 473 states in pertinent part that,

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(c) (1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.”

Note that the judge cannot require that the attorney pay any of the costs or penalties as a condition of granting the relief.

The attorney affidavit of fault procedure differs in two major respects from the standard section 473 motion, (1) the six month deadline begins to run upon entry of judgment or dismissal, not when a default is entered, and (2) relief is mandatory, not discretionary as with a standard section 473 motion.

Where an “attorney affidavit of fault” is filed, there is no requirement that the attorney’s mistake, inadvertence, etc. be excusable meaning that relief must be granted even where the default resulted from inexcusable neglect by the defendant’s attorney, and the same rule applies to dismissals resulting from inexcusable neglect by the attorney. Further, the court is not concerned with the reasons for the attorney’s mistake.

The attorney affidavit of fault method can be very useful even if an attorney is hesitant to admit fault as it will avoid any possible malpractice claims by the client.

In order to use the attorney affidavit of fault method the attorney must sign the declaration. If you feel that your attorney was responsible for having a default or judgment entered against you contact an experienced attorney right away to discuss your situation.

RELIEF UNDER SECTION 473.5 FOR LACK OF ACTUAL NOTICE

Another method of vacating a judgment that is not as well known as a section 473 motion is a motion to vacate a default or judgment under California Code of Civil Procedure section 473.5 on the grounds that the service of the summons and complaint on the moving party did not result in actual notice in time to defend the lawsuit, and that their lack of actual notice was not caused by their avoidance of service or inexcusable neglect.

In the right situations, filing a motion under section 473.5 is very useful as the time limit for filing a motion under Section 473.5 is substantially longer than the six months allowed by Section 473. Some attorneys and other legal professionals are not aware of Section 473.5 and are under the impression that after six months there is nothing that can be done to vacate a default judgment.

California Code of Civil Procedure section 473.5 states in pertinent part that:

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (I) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered”, and “Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

A motion to vacate under section 473.5 is often filed when someone may not have received actual notice of a lawsuit, including situations where substitute service may have been used at an address at which that person no longer lives, someone may have forgotten to give the defendant the summons and complaint or a situation where service was done by publication.

MOTION TO VACATE VOID JUDGMENT UNDER SECTION 473(d)

Another little known method of vacating a default or judgment in California is filing a motion to vacate a judgment under the provisions of Code of Civil Procedure section 473(d) on the grounds that the default or judgment is void.

Code of Civil Procedure section 473(d) states that, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

If a judgment is void there is no time limit to filing a motion to vacate under Code of Civil Procedure section 473(d).

It should be noted that a judgment or order must be considered void and not merely voidable to be vacated under Code of Civil Procedure section 473(d).

A judgment can be considered void as a matter of law for several reasons including, (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.

“A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.

A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164.

Lack of or improper service of summons is generally the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served as that would mean that they lacked any actual or constructive notice of the lawsuit.

This article has discussed the four most common methods of vacating a default or judgment in California. There are other methods of vacating a default or judgment that have not been discussed. Every situation is unique and if you have had a default or judgment entered against you contact an experienced attorney as soon as possible. The attorney can review your situation and advise you as to whether or not filing a motion to vacate the default or judgment is likely to succeed and which method has the best chance of succeeding.

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this web site are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this web site by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this web site should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Law Offices of Nathan Mubasher

2621 Green River Rd, Ste 105 PMB 403

Corona, CA 92882

tel 1-800-691-2721 | fax 1-310-356-3660

www.mubasherlaw.com

What to expect when you are pulled over for DWI

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The Lampin Law Firm

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A typical DWI investigation begins with a traffic stop. You may have been speeding, swerving, or you were unlucky and your license plate light was out. The best way to make certain that you are never charged with driving while intoxicated (DWI) is to take a cab or Uber, find a designated driver, or walk home. However, getting pulled over on suspicion of DUI happens to many people – even completely sober people – and the actions a driver takes in the moments that follow are critical and can impact their case going forward.

The first thing that will happen after you are pulled over is that the officer will approach your vehicle and ask for your driver’s license, registration, and/or proof of insurance. She may ask you where you are going, where you have been and, importantly, whether you have been drinking alcohol. From the start of your conversation, the officer will be looking for clues that you are intoxicated or impaired. Signs of impairment include bloodshot eyes, slurred speech, nervousness, inability to find your registration and insurance information, and the smell of intoxicants. If you are suspected of driving under the influence, he will probably ask you if you have been drinking, how much you have had to drink, and other questions to gauge your possible level of intoxication. At this point he will also ask you to get out of your car.

Everything that happens from this point on can and will be used later in court as evidence of intoxication. You will probably be asked to submit to a series of standardized field sobriety tests (SFSTs). You should assume you are being video and audio recorded through the entire testing process, and the recording can be used against you by the prosecution in your DWI case. Even if you aren’t recorded, the officer’s observations and opinions of your ability to take the test can be used in court. Field Sobriety tests are used to examine whether your mental and physical abilities are impaired by alcohol to the point that you cannot drive. Officers use many different SFSTs to test for whether a person is intoxicated, but the National Highway Transportation Safety Administration (NHTSA) has put forth three tests that “reliably” test for an elevated blood alcohol content (BAC). These are the Gaze Nystagmus (eye test), One-Leg Stand, and Walk-and-Turn Tests. It is important to understand that you DO NOT have to take these tests.

The St. Charles, Missouri Criminal Defense Attorneys at The Lampin Law Firm represent people charged with all crimes including DWI/DUI. If you have been arrested for DWI please give us a call today to discuss your case with a St. Charles, MO DWI Lawyer who can help you in court with your criminal charges.

California Judicial Council Meeting to Improve Communication to Defendants

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Annette Gomez, Just Document Preparation

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On December 16th, 2017 the California Judicial Council will meet to talk about ways to improve communication to criminal defendants. This will include notices to defendants, pay and fee options as well as other changes in infraction cases. Infraction cases are to least sever in California, ranking in severity under Misdemeanors and Felony convictions. Traffic convictions are typically classified as infractions.

A review of these procedures may be a good idea since traffic and other infractions make a large portion of the filings and cases in the court system taking a large amount of resources and budget. Refined and revised procedures for infractions could result in lower operating expense for the court and more productivity from court staff not bogged down with so many infraction related tasks. A video cast will be available and a link to the live videocast of the meeting will be on the California Courts website on the day of the meeting.

Although Just Document Preparation is a large Legal Document Preparation service in California, their work in the criminal courts and cases and filings with infractions is small to none. Owner Annette Gomez does not anticipate a major disruption or change in their business or the business of others in the industry with regards to any procedural changes proposed or made as a result of the meeting.

My Web Traffic Cut in Half, Should I Fire MY SEO?

By

Joel Smith

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There are countless companies for Attorneys and legal professionals to spend their advertising budget. With many different legal marketing companies offering very different services and focuses, it seems like an easy way for attorneys to track results is by website traffic. The problem is that even though this is an easy number to compare month to month and year to year, traffic doesn’t accurately measure your end goal – revenue.

Our team has worked with many legal industry firms and there seems to be a common disconnect. People expect to pay and they want their phone to start ringing over night and they want their website traffic to double instantly. The truth is detailed and dialed optimization programs can take time and even though they can increase revenue, there could potentially be no change in call counts and website traffic.

Website traffic and analytics is a way to see visitors to your website as well as information about their behavior on the site. It provides information about their experience and how the general public interacts with your online presence. What is hard to track with traffic and analytics is conversions, price per acquisition, return on investment and more important numbers that display a business and its net profits.

When determining if your web optimization efforts are doing their best, or at least moving your online presence in the right direction there are some easy numbers to know to determine if you’re in good hands. Below is a short list of some top level items to dig into your advertising efforts.

My Website Traffic has cut in half – Is it time to fire my SEO?

The answer seems like it would be yes, but actually lower traffic could be a good thing. In many cases, when our team starts a project our goal may be to decrease traffic. Sounds crazy right? Below I will explain some reasons we target a decrease in website traffic and why it is actually beneficial to the bottom line of a business.

Cleaning and removing old outdated pages and services on the website.

Maybe an attorney has an old website from when they were general practice and currently they only do family law. Much of the traffic to the site may be for civil, personal injury or more services not offered anymore. This would also result in fewer calls to office, but this reduction in traffic and calls were not generating business and actually saves the office time. When we start a new project we always like to address out dated and other website aspects not relevant to the current business model. They may have driven traffic but traffic doesn’t always mean money.

Focus efforts on services with higher price points could drop traffic but drastically increase revenue.

This is an easy one to explain. Any good SEO will talk with a client about their highest price point service prior to starting a project. They will determine the best return on investment service factoring cost of acquisition and typically spend some time and efforts on that service. A recent example would we had was a civil attorney who previously marketed name changes because they are fast and easy to complete and have little time investment with the court and clients. After our team did some research we found that within the County our client worked, there were only about 4 name changes a month being filed, of which only 2 used an attorney. This meant that there were only 2-3 potential clients a month at their very affordable rate. They had good traffic to those pages for name change but no real conversion. Their civil answer/response service was about the same investment of time and cost, but they hadn’t really marketed it. We found that there were hundreds and hundreds of suits filed each month in their local courthouse and only a handful of their competitors marketed for them. The plan was to stop efforts for name change and move to answer/responses. During the ramp up process traffic for the name changes dropped, but ultimately that traffic decrease had no change on their revenue.

Refine or Delete outdated and under-performing paid ads.

With many legal professionals, paid internet ads are a large portion of their monthly budget. The problem is that just because you’re showing up for every search term it doesn’t mean you’re converting those clients, and you did pay for them. When choosing what search terms and services to pay for clicks, it is essential that research to determine a potential return on investment is. It is equally important to evaluate conversions and cost every few months. If you have low performing ads and see little to no conversion they should be addressed or eliminated. This could be way of refining the ad program or deleted it. This would cause an immediate decrease in traffic, but would result in lower overall costs by way of lower investment, higher return on investment and a lower cost of acquisition.

Stop tracking junk traffic.

We all know that everything online is there for everyone to see. This means spammers. Most attorneys are familiar with spam email, but if not engaged in their own website tracking may not know tracking analytics are often spammed. Spammers visit and drop data in the tracking that raises the total traffic numbers, but it isn’t actually real traffic. Another common artificial inflation of tracking numbers is self visiting. These are visits by yourself or your team. If you work or own a large office many employees may be using your website for reference for providing prices, contact and address details and more. Telling your website to exclude these visits is easy, but often overlooked. A one-time flipping of switches on your website tracking can immediately stop tracking spam and employee traffic. In some cases we have seen this drop website traffic numbers in half, but they were all junk visitors who didn’t accurately reflect potential clients.

To recap, these are just 4 common reasons why website traffic could go down while actually helping refine the overall optimization process. As seen in each example the traffic resulted in a better bottom line. Don’t judge your efforts or the efforts of your SEO service by traffic alone. To learn more about what you can do to help your SEO and your responsibility has the business owner, check out our article “Your Responsibilities As An Attorney to Your SEO Company” Questions about your SEO efforts or if you’re getting the most, our team is always available for questions. You can reach out to us and as always, don’t forget to add your law firm to Legallistings.us, a free legal directory.

California Vehicle Code Section 12810.5

By

Rob Collier, California Drivers Advocates

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How does the DMV use CVC Section 12810.5 to suspend a driver license?
The California Department of Motor Vehicles (DMV) is the government agency granted the power to issue a driving privilege to qualified drivers. What few people understand, however, is the nearly unbridled power the DMV possesses to deny a person the privilege to drive. One of the most common tactics used by the DMV suspend or revoke a person’s driver license is by the department labeling that person as a Negligent Operator.
Known as the Negligent Operator section of the Vehicle Code, Section 12810.5 specifically identifies the maximum violation “point” count permitted to accumulate on a driving record during specific periods of time. If a driver accumulates too many violation points within a specified period of time, the DMV will “Prima Facie” consider that person to be a Negligent Operator of a motor vehicle and will automatically act to suspend that person’s driver license. In other words, if there are too many points in too short a period of time, the driver is automatically presumed to be negligent without any other proof necessary.
CVC Section 12810.5 (a) is the section of law that specifically identifies maximum point counts for class C drivers:
“Except as otherwise provided in subdivision (b), a person whose driving record shows a violation point count of four or more points in 12 months, six or more points in 24 months, or eight or more points in 36 months shall be prima facie presumed to be a negligent operator of a motor vehicle.”

CVC Section 12810.5 (b) (1) is the section of law that specifically identifies point counts for class A and class B drivers:
“A class A or class B licensed driver except persons holding certificates pursuant to Section 12517, 12519, 12523, 12523.5 or 12527, or an endorsement issued pursuant to 12523.5, or an endorsement issued pursuant to subdivision (a), and who requests and appears at a hearing and is found to have a driving record violation point count of six or more points in 12 months, eight or more points in 24 months, or ten or more points in 36 months is presumed to be a prima facie negligent operator.

CVC Section 12810.5 (b) (2) is the section of law that determines commercial drivers accumulate violations point counts at a higher rate that Class C drivers:
“For purposes of this subdivision, each point assigned pursuant to Section 12810 shall be valued at one and one-half times the value otherwise required by that section for each violation reasonably determined by the department to be attributable to the driver’s operation of a vehicle requiring a class A or class B license, or requiring a certificate or endorsement described in this section.”

CVC Section 12810.5 (c) is the section of law that determines the department may require a negligent operator to an SR-22 Insurance Form:
“The department may require a negligent operator whose driving privilege is suspended or revoked pursuant to this section to submit proof of financial responsibility, as defined in Section 16430, on or before the date of reinstatement following the suspension or revocation. The proof of financial responsibility shall be maintained with the department for three years following that date of reinstatement.”

How we use CVC section 12810.5 to your advantage?

Vehicle Code Section 12810.5 is a prima facie section of law that allows the DMV to automatically presume a driver to be a Negligent Operator if their violation point count exceeds the maximum allowed by law. That being said, the DMV must prove that each point occurred from a separate occasion and that each point is valid. Also, some drivers will inadvertently miss the opportunity to remove a violation point by attending a driving school.

This section of law is particularly helpful to commercial drivers as it provides a mechanism to increase the maximum number of violation point allowed on the driving record, however, this section of law cannot be employed without requesting and appearing at a Negligent Operator hearing.

Everything the DMV does is time sensitive and so if you have received a notice from the DMV that they intend to suspend your driver license for being a Negligent Operator, you should react immediately. The law only permits a period of 14 days to request a hearing otherwise the suspension automatically goes into effect.

Pick up the telephone and call the DMV Defense Experts from California Drivers Advocates (CDA). We are a team of Administrative Advocates, former police officers, DMV hearing officers, investigators and scientists who are ready to turn the tables on the DMV. We will use our commanding knowledge of the Vehicle Code to fight for you. Don’t let the DMV steal your driving privilege without a fight. Call CDA today.

If the DMV is your problem……California Drivers Advocates is your solution. Visit our website here, or call us today at 888-281-5244.