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California Basic Practice Handbook

Rapidly identify frequently encountered issues in a wide array of practice areas; avoid traps that otherwise might be overlooked in evaluating a case; and decide whether a client’s issue is one you can realistically handle. Especially useful for newly admitted practitioners and those transitioning to new practice areas.

 

Rapidly identify frequently encountered issues in a wide array of practice areas; avoid traps that otherwise might be overlooked in evaluating a case; and decide whether a client’s issue is one you can realistically handle. Especially useful for newly admitted practitioners and those transitioning to new practice areas. Includes chapters on:

  • Personal injury
  • Discovery and general pretrial procedure in civil actions
  • Employment and workers’ compensation cases
  • Sale of residence and landlord-tenant issues
  • Personal bankruptcy and debt collection
  • Basic estate planning and administration
  • Uncontested divorces and basic criminal practice
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Rapidly identify frequently encountered issues in a wide array of practice areas; avoid traps that otherwise might be overlooked in evaluating a case; and decide whether a client’s issue is one you can realistically handle. Especially useful for newly admitted practitioners and those transitioning to new practice areas. Includes chapters on:

  • Personal injury
  • Discovery and general pretrial procedure in civil actions
  • Employment and workers’ compensation cases
  • Sale of residence and landlord-tenant issues
  • Personal bankruptcy and debt collection
  • Basic estate planning and administration
  • Uncontested divorces and basic criminal practice

1

Opening a Law Practice and Ethically Representing Clients

Lawrence E. Leone

  • I. OPENING A LAW PRACTICE
    • A. Initial Considerations in Deciding to Open Law Practice
      • 1. Personal Attributes Needed to Open Own Practice 1.1
      • 2. Financial Planning in Advance of Opening Practice 1.2
      • 3. Developing Practice Area Proficiency; Finding Mentors
        • a. Practice Area Proficiency 1.3
        • b. Finding Mentors
          • (1) Former Law Firm Colleagues 1.4
          • (2) Professional Organizations 1.5
          • (3) Law School Alumni Associations 1.6
    • B. Business Operations of Law Practice
      • 1. Choosing Form of Enterprise for Law Practice
        • a. Importance of Form of Enterprise 1.7
        • b. Sole Proprietorship 1.8
        • c. Limited Liability Partnership 1.9
        • d. Limited Liability Company Contrasted 1.10
        • e. Professional Corporation 1.11
        • f. Related Business Registration and Tax Matters
          • (1) Registering With City and Obtaining Business License 1.12
          • (2) Summary of Tax-Related Matters
            • (a) Importance of Consulting With Tax Advisor 1.13
            • (b) Income Tax and FICA Withholding 1.14
            • (c) No Income Tax Withholding for Independent Contractors 1.15
            • (d) Federal and State Unemployment Tax Deposits 1.16
            • (e) Formation Fees and Minimum Taxes; Annual Returns 1.17
            • (f) Estimated Tax Payments 1.18
            • (g) Payroll Tax 1.19
      • 2. Type of Office Set-Up
        • a. Physical Office Spaces
          • (1) Commercial Office Spaces
            • (a) Single Office Spaces for Sole Practitioners 1.20
            • (b) Shared Office Suites 1.21
          • (2) Home Offices 1.22
        • b. Online "Virtual Law Firm" Compared 1.23
      • 3. Establishing Bank Accounts and Accounting, Timekeeping, and Calendaring Methods
        • a. Bank Accounts 1.24
        • b. Accounting, Timekeeping, and Calendaring Methods
          • (1) Accounting Methods 1.25
          • (2) Timekeeping Methods 1.26
          • (3) Calendaring Methods 1.27
      • 4. Purchasing Insurance
        • a. Importance of Adequate Insurance Coverage 1.28
        • b. Property and Liability Insurance
          • (1) General Property and Liability Insurance 1.29
          • (2) Professional Liability (Malpractice) Insurance 1.30
        • c. Personal Health and Life Insurance 1.31
      • 5. Office Staffing
        • a. Deciding to Hire Staff 1.32
        • b. Special Hiring and Related Considerations
          • (1) Guarding Against Discrimination in Hiring 1.33
          • (2) Confirmation of Lawful Immigration Status 1.34
          • (3) Injury and Illness Prevention 1.35
        • c. Workers' Compensation Insurance 1.36
        • d. Unemployment and Disability Insurance 1.37
        • e. Employee Benefits
          • (1) Ability to Offer Benefits 1.38
          • (2) Communicating About Benefits to Employees 1.39
        • f. Terminating an Employee 1.40
    • C. Special Aspects of Law Firm Management and Operations
      • 1. Acquiring Clients Through Marketing and Other Methods
        • a. Marketing
          • (1) Overall Ethical Considerations 1.41
          • (2) Determining Target Market 1.42
          • (3) Traditional Marketing Tools
            • (a) Announcements Sent by Mail 1.43
            • (b) Writing, Speaking, and Networking 1.44
          • (4) Internet Marketing 1.45
        • b. Other Client Sources
          • (1) Referral Panels Maintained by Local Bar Associations 1.46
          • (2) Contract Work for Other Attorneys 1.47
          • (3) Involvement in Professional Organizations and Public Service 1.48
      • 2. Establishing Standard Fee Arrangements 1.49
      • 3. Establishing Client Screening and Conflict Avoidance Procedures
        • a. Client Screening in General 1.50
        • b. Conflict of Interest Avoidance 1.51
      • 4. Emergency Planning 1.52
  • II. SELECTED ETHICAL ISSUES IN REPRESENTING CLIENTS
    • A. Entering Into Fee Agreements With Clients
      • 1. No Illegal or Unconscionable Fees 1.53
      • 2. General Need for Written Agreement 1.54
      • 3. Contingent Fee Agreements 1.55
      • 4. Treatment of Retainer Fees 1.56
      • 5. Payment of Attorney Fees by Someone Other Than Client 1.57
      • 6. Limited Scope Representation Permissible 1.58
    • B. Avoiding Conflicting Interests
      • 1. Affirmative Duty to Avoid Conflicting Interests
        • a. Conflicting Interests Summarized 1.59
        • b. Adverse Legal, Business, Financial, Professional, or Personal Interests
          • (1) Relationship With Client 1.60
          • (2) Relationship With Party or Witness 1.61
          • (3) Relationship With Another Party's Attorney 1.62
        • c. Special Considerations in Criminal Cases
          • (1) Codefendants
            • (a) Conflicts of Interest; Multiple Representation 1.63
            • (b) Procedure When Retained Counsel Is Involved 1.64
            • (c) Procedure When Appointed Counsel Is Involved 1.65
          • (2) Concurrent and Former Clients (Not Codefendants) in Same Proceeding 1.66
          • (3) Conflicts Confronting Prosecutor
            • (a) Recusal 1.67
            • (b) Prosecutor May Not Also Defend 1.68
            • (c) City Attorneys 1.69
          • (4) Conflicts That May Disqualify Defense Attorney's Firm 1.70
      • 2. Attorney Withdrawal and Disqualification as Result of Conflict
        • a. Withdrawal 1.71
        • b. Disqualification 1.72
      • 3. Representation With Informed Written Consent Despite Conflict 1.73
    • C. Duty to Provide Effective Representation
      • 1. Necessary Learning and Skill to Take Case 1.74
      • 2. Proper Supervision of Others Working on Case 1.75
      • 3. Ineffective Assistance of Counsel 1.76
    • D. Duty to Keep Client Informed About Case 1.77
    • E. Duty to Communicate Terms of Offer in Criminal Matter 1.78
    • F. Duty to Keep Client's Confidences and Secrets 1.79
    • G. Concluding Attorney-Client Relationship
      • 1. Withdrawal From Representation
        • a. Withdrawal During Representation
          • (1) Withdrawal by Mutual Agreement 1.80
          • (2) Mandatory and Permissive Withdrawal; Court Approval
            • (a) Mandatory Withdrawal 1.81
            • (b) Permissive Withdrawal 1.82
            • (c) Need for Court Approval to Withdraw 1.83
        • b. Withdrawal at Conclusion of Representation 1.84
      • 2. Release of Files to Clients 1.85
      • 3. Termination of Representation on Attorney's Death, Incapacity, or Suspension 1.86
    • H. Mandatory Fee Arbitration When Dispute Over Fees 1.87
  • III. FORMS
    • A. Form: General Letter Agreement for Representation on Hourly Basis 1.88
    • B. Form: Agreement for Representation Based on Contingent Fee 1.89

2

Alternative Dispute Resolution

Hon. Jeremy D. Fogel

  • I. UNDERSTANDING AND USING ALTERNATIVE DISPUTE RESOLUTION (ADR)
    • A. Purpose, History, and Benefits of ADR 2.1
    • B. Choosing Appropriate ADR Process 2.2
    • C. Timing for Effective Use of ADR 2.3
  • II. TYPES OF ADR
    • A. Mediation
      • 1. Description 2.4
      • 2. Confidentiality
        • a. Importance of Confidentiality to Mediation 2.5
        • b. Statutory Provisions and Related Case Law 2.6
        • c. Applicability of Confidentiality Provisions 2.7
        • d. Other Sources of Confidentiality 2.8
      • 3. Mediators' Ethical Obligations 2.9
      • 4. Types of Mediation
        • a. Theoretical Models 2.10
        • b. Mediator Styles 2.11
        • c. Voluntary and Mandatory Mediation Distinguished 2.12
      • 5. Advantages and Disadvantages of Mediation 2.13
      • 6. Preparing for and Participating in Mediation
        • a. Choosing Mediator 2.14
        • b. Preparing for Mediation Session 2.15
      • 7. Stages of Mediation Process
        • a. Opening Session 2.16
        • b. Information Exchange 2.17
        • c. Identifying, Framing, and Organizing Issues 2.18
        • d. Identifying and Negotiating Solutions 2.19
        • e. Joint Session Versus Caucus 2.20
      • 8. Mediation Agreements 2.21
    • B. Collaborative Law
      • 1. Description 2.22
      • 2. Agreement Not to Litigate 2.23
      • 3. Advantages and Disadvantages of Collaborative Law 2.24
      • 4. Cases Suitable for Collaborative Law 2.25
    • C. Early Neutral Evaluation (ENE)
      • 1. Description 2.26
      • 2. Advantages and Disadvantages of ENE 2.27
      • 3. Typical ENE Procedures 2.28
    • D. Nonbinding Judicial Arbitration
      • 1. Description; Governing Law 2.29
      • 2. Advantages and Disadvantages of Judicial Arbitration 2.30
      • 3. Actions Subject to and Exempt From Judicial Arbitration
        • a. Actions Subject to Judicial Arbitration 2.31
        • b. Actions Exempt From Judicial Arbitration 2.32
      • 4. Preparing for Judicial Arbitration
        • a. Discovery 2.33
        • b. Using Documentary Evidence 2.34
      • 5. Setting Case for Arbitration 2.35
      • 6. Selection of Arbitrator and Ethical Rules 2.36
      • 7. Conduct of Arbitration Hearing 2.37
      • 8. Issuance of Arbitrator's Award 2.38
      • 9. Arbitration Award Not Automatically Binding 2.39
      • 10. Trial After Arbitration
        • a. Request for Trial 2.40
        • b. Potential Liability for Less Favorable Outcome After Court Trial 2.41
        • c. Discovery Issues 2.42
        • d. Conduct of Trial; Evidence 2.43
    • E. Contractual Arbitration
      • 1. Description; Governing Law 2.44
      • 2. Advantages and Disadvantages of Contractual Arbitration
        • a. Advantages of Contractual Arbitration 2.45
        • b. Disadvantages of Contractual Arbitration 2.46
      • 3. Ethics in Arbitration 2.47
      • 4. Contractual Arbitration Clauses
        • a. Specifying Issues to Be Arbitrated 2.48
        • b. Selection or Appointment of Arbitrator 2.49
        • c. Other Issues Addressed in Arbitration Agreements 2.50
      • 5. Consideration of Agreement's Enforceability in Seeking Arbitration
        • a. Valid Arbitration Agreement Required to Compel Arbitration 2.51
        • b. Plaintiff's Burden to Show Agreement to Arbitrate 2.52
        • c. Unconscionability as Defense to Enforcement 2.53
        • d. Scrutiny of Agreements to Arbitrate Unwaivable Public Rights 2.54
      • 6. Preparing for Contractual Arbitration
        • a. Demand 2.55
        • b. Procedure to Compel Arbitration; Order 2.56
        • c. Selecting Arbitrator 2.57
        • d. Discovery 2.58
        • e. Witness and Document Lists 2.59
      • 7. Arbitration Hearing
        • a. Parties' Rights Summarized 2.60
        • b. Preliminary Hearing 2.61
        • c. Arbitrator's Authority 2.62
        • d. Evidence and Testimony 2.63
        • e. Briefs, Arguments, Exhibits, and Transcripts 2.64
      • 8. Arbitration Awards and Remedies
        • a. Form and Content of Award; Service 2.65
        • b. Finality of Award 2.66
        • c. Confirmation, Correction, or Vacation of Award 2.67
        • d. Appeal From Award 2.68
        • e. Enforcing Arbitration Award 2.69
  • III. FORMS
    • A. Form: Sample Agreement to Mediate Existing Dispute 2.70
    • B. Form: Stipulation to Submit to Judicial Arbitration 2.71
    • C. Form: Sample Contractual Provision to Resolve Disputes by Arbitration 2.72

3

Preparing, Filing, and Serving Complaints and Answers

R. Camille King

Rae Lovko

  • I. INITIAL CONSIDERATIONS IN PLANNING TO BRING COMPLAINT
    • A. Nature and Function of Pleading 3.1
    • B. Complying With Statutes of Limitations 3.2
    • C. Prerequisites to Initiation of Action 3.3
    • D. Determining Jurisdiction and Venue
      • 1. Jurisdiction
        • a. Jurisdiction as Threshold Issue 3.4
        • b. Subject Matter Jurisdiction 3.5
        • c. Personal Jurisdiction 3.6
        • d. In Rem and Quasi In Rem Jurisdiction 3.7
      • 2. Venue
        • a. Governing Law 3.8
        • b. Nature of Action: Transitory, Local, or Mixed 3.9
        • c. Venue Selection Provisions in Contracts Void 3.10
        • d. Rules for Government Entities 3.11
        • e. Rules for Corporations, Associations, and Partnerships 3.12
          • (1) Contract Actions 3.12A
          • (2) Tort Actions 3.12B
      • 3. Determining and Naming Parties
        • a. Plaintiff Must Be Real Party in Interest; Exceptions 3.13
        • b. Defendant 3.14
        • c. Parties Must Have Legal Capacity to Sue or Be Sued 3.15
        • d. Joinder of Parties
          • (1) Ascertaining Need for Joinder 3.16
          • (2) Compulsory Joinder 3.17
          • (3) Permissive Joinder 3.18
        • e. Naming Corporations, Associations, and Other Entities as Parties 3.19
        • f. Naming Persons and Entities Whose True Names Are Unknown 3.20
  • II. PREPARING COMPLAINT
    • A. Attorney-Drafted Versus Judicial Council Forms 3.21
    • B. Format Requirements for Attorney-Drafted Complaints 3.22
    • C. Drafting Specific Elements of Complaint
      • 1. Caption 3.23
      • 2. Introductory Clause 3.24
      • 3. Allegations in Body of Complaint
        • a. General Guidelines on Form and Means of Presentation 3.25
        • b. Stating Separate Causes of Action Not Required 3.26
        • c. Joinder of Causes of Action Permitted; Splitting Causes of Action Prohibited
          • (1) Joinder of Causes of Action Permitted 3.27
          • (2) Splitting Causes of Action Prohibited 3.28
        • d. Factual Statement of Allegations
          • (1) Use of Ordinary and Concise Language 3.29
          • (2) No Need to Plead Facts Anticipating Defenses 3.30
          • (3) Facts Alleged on Information and Belief 3.31
          • (4) Incorporation of Facts by Reference 3.32
      • 4. Demand for Judgment and Related Remedies Issues
        • a. Demand for Judgment 3.33
        • b. Considerations in Selecting Legal and Equitable Remedies for Complaint 3.34
        • c. Inconsistent Remedies Disallowed 3.35
        • d. Statement of Damages in Personal Injury and Wrongful Death Actions 3.36
        • e. Reservation of Right to Punitive Damages 3.37
        • f. Effect of Demand in Complaint on Judgment in Case
          • (1) Default Cases 3.38
          • (2) Contested Cases 3.39
      • 5. Signature 3.40
      • 6. Verification
        • a. Nature and Purpose of Verification 3.41
        • b. When Required 3.42
        • c. Persons Who May Verify Complaint 3.43
    • D. Inclusion of Case Cover Sheet With Complaint 3.44
  • III. FILING AND SERVING COMPLAINT
    • A. Filing Complaint and Issuance of Summons
      • 1. Filing Complaint With Court Clerk 3.45
      • 2. Payment or Waiver of Filing Fees
        • a. Fee Amount Set by Statute 3.46
        • b. Fee Waivers 3.47
        • c. Fee Payments (Checks) Returned for Insufficient Funds 3.48
      • 3. Preparation and Issuance of Summons
        • a. Preparation of Summons 3.49
        • b. Issuance of Summons 3.50
    • B. Serving Summons and Complaint
      • 1. Persons Who May Serve and Defendants Subject to Service of Summons and Complaint
        • a. Persons Who May Serve Summons and Complaint 3.51
        • b. Defendants Who Are Subject to Receipt of Service of Summons and Complaint 3.52
          • (1) Corporations 3.52A
          • (2) Joint Stock Companies, Associations, and Partnerships 3.52B
          • (3) Public Entities 3.52C
          • (4) Minors or Other Incompetent Persons 3.52D
          • (5) Prisoners 3.52E
        • c. Manner of Service Within California
          • (1) Service Methods Summarized 3.53
          • (2) Personal Service 3.54
          • (3) Substituted Service 3.55
          • (4) Mail Service With Notice and Acknowledgment of Receipt 3.56
          • (5) Service by Publication 3.57
        • d. Service Outside California 3.58
        • e. Service Outside United States 3.59
        • f. Time Limits for Service; Application for Court Order Extending Time for Service 3.60
      • 2. Effect of Failure to Make Proper Service 3.61
      • 3. Proof of Service
        • a. Content 3.62
        • b. Filing Proof of Service
          • (1) What Constitutes "Filing" 3.63
          • (2) Time for Filing Proof of Service in Relation to Dismissal Statutes 3.64
  • IV. AMENDED COMPLAINTS AND AMENDMENTS TO COMPLAINTS
    • A. Distinguishing Amended Complaints From Amendments to Complaints and Supplemental Complaints 3.65
    • B. Reasons to Amend Complaint and Limitations on Amendment
      • 1. Reasons to Amend 3.66
      • 2. Limitations on Amendment 3.67
    • C. Use and Format of Amended Complaints
      • 1. Use of Amended Complaint 3.68
      • 2. Format 3.69
    • D. Use and Format of Amendment to Complaint
      • 1. Use of Amendment to Complaint 3.70
      • 2. Format of Amendment to Complaint 3.71
    • E. Amendment Procedure
      • 1. Amendment Without Court Permission 3.72
      • 2. Amendment by Stipulation 3.73
      • 3. Amendment to Correct Mistake or Add or Delete Name of Party 3.74
      • 4. Amendment to Substitute True Name for Fictitious Name 3.75
    • F. Filing Amended Complaint or Amendment to Complaint After Demurrer Sustained 3.76
    • G. Other Means of Amendment
      • 1. Oral Motion to Amend; Motions at Trial 3.77
      • 2. Noticed Motion for Leave to Amend 3.78
    • H. When Additional Summons Is Required After Amendment of Complaint 3.79
  • V. ANSWERS
    • A. Governing Law 3.80
    • B. Purpose of Filing Answer 3.81
    • C. Effect of Failure to File 3.82
    • D. Preparing Answer: Components
      • 1. Caption 3.83
      • 2. Introductory Paragraphs 3.84
      • 3. Body of Answer
        • a. Required Elements Summarized 3.85
        • b. Incorporation by Reference 3.86
        • c. Denials
          • (1) General Denials 3.87
          • (2) Specific Denials 3.88
          • (3) Denials on Information and Belief or Lack of Information or Belief
            • (a) When to Use 3.89
            • (b) Sample Language 3.90
          • (4) Effect of Failure to Deny Material Allegations 3.91
        • d. Defenses
          • (1) Description and Use 3.92
          • (2) Effect of Pleading and Not Pleading Defenses
            • (a) Affirmative Defenses Deemed Automatically Denied by Plaintiff 3.93
            • (b) Defenses Waived if Not Plead 3.94
          • (3) Pleading Inconsistent Defenses 3.95
        • e. Effect of Inadvertent Affirmative Admissions 3.96
        • f. Prayer or Demand for Relief 3.97
        • g. Date; Subscription 3.98
        • h. Verification of Answer
          • (1) When Required 3.99
          • (2) Who May Verify Answer
            • (a) Party or Attorney May Verify 3.100
            • (b) Verification by Corporate Defendant or Public Entity
              • (i) Corporate Defendant 3.101
              • (ii) Public Entity 3.102
  • VI. FILING AND SERVING ANSWER
    • A. Filing Answer
      • 1. Original of Answer Filed With Court 3.103
      • 2. Time to File Answer
        • a. General 30-Day Rule 3.104
        • b. Filing After Ruling on Demurrer 3.105
        • c. Filing Answer After Other Challenges to Complaint 3.106
        • d. Extending Time by Stipulation or Court Order 3.107
      • 3. Danger of Default 3.107A
    • B. Serving Answer 3.108
  • VII. FORMS
    • A. Form: Sample Verified Complaint 3.109
    • B. Form: Sample Verified Answer 3.110

4

Pretrial Discovery: A Step-by-Step Approach

Teresa A. McQueen

R. Camille King

Rae Lovko

  • I. DEVELOP DISCOVERY PLAN
    • A. Key Components of Developing a Discovery Plan
      • 1. Purpose of a Discovery Plan 4.1
      • 2. Legal Issues 4.2
      • 3. Factual Issues 4.3
    • B. Identify Types of Potential Evidence
      • 1. Testimony 4.4
      • 2. Documentary Evidence 4.5
      • 3. Physical Evidence 4.6
  • II. INFORMAL DISCOVERY
    • A. Nature of Informal Discovery 4.7
    • B. Interviews and Inspections 4.8
    • C. Public Information
      • 1. General Research 4.9
      • 2. Judicial Notice 4.10
      • 3. Public Records Requests
        • a. California Public Records Act 4.11
        • b. Freedom of Information Act 4.12
  • III. FORMAL DISCOVERY
    • A. Discovery Under the Civil Discovery Act 4.13
    • B. Methods of Discovery Approved by the Civil Discovery Act 4.14
    • C. Sequence and Timing of Discovery Under the Civil Discovery Act
      • 1. Sequence 4.14A
      • 2. Timing 4.14B
    • D. Propounding Specific Discovery Methods
      • 1. Depositions
        • a. Description 4.15
        • b. Oral Deposition 4.15A
        • c. Written Deposition 4.15B
        • d. Jurisdiction to Compel Attendance at Deposition 4.16
          • (1) Deposition of Party and Nonparty Witnesses Inside California 4.16A
          • (2) Nonparty Witnesses Outside California 4.16B
        • e. One-Deposition Rule 4.17
        • f. Time Considerations for Service and Scheduling of Depositions
          • (1) Service 4.18
          • (2) Scheduling 4.18A
        • g. Contents of a Deposition Notice 4.18B
        • h. Time to Complete Taking Depositions [Deleted] 4.19
        • i. Deposition Location
          • (1) If Deponent Within California 4.20
          • (2) If Deponent Outside California 4.21
        • j. Deposition by Telephone, Video Conference, or Other Electronic Means 4.22
        • k. Fees for Attending Depositions
          • (1) Nonparty Deponents in General 4.23
          • (2) Nonparty Government Employee Deponents 4.24
        • l. Special Considerations in Taking Depositions of Experts 4.25
      • 2. Deposition Subpoena for Records
        • a. Subpoena for Personal Records 4.26
        • b. Nonparty Business Records 4.26A
      • 3. Interrogatories
        • a. Description 4.27
        • b. Limitations 4.27A
        • c. Judicial Council Form Interrogatories 4.28
        • d. Specially Prepared Interrogatories 4.29
        • e. Supplemental Interrogatories 4.29A
        • f. Timing, Service, and Format
          • (1) Timing 4.30
          • (2) Service and Other Requirements 4.31
          • (3) Format 4.32
      • 4. Demand for Inspection of Documents, Things, and Places
        • a. Description 4.33
          • (1) Limitations 4.33A
          • (2) Supplemental Demand for Inspection 4.33B
        • b. Timing, Service, and Format
          • (1) Timing 4.33C
          • (2) Service 4.33D
          • (3) Format 4.34
          • (4) Drafting Considerations 4.34A
        • c. Service and Timing of Production or Inspection [Deleted] 4.35
      • 5. Demand for Physical and Mental Examinations
        • a. Description 4.36
        • b. Condition in Controversy Determines Right to Demand Examination 4.37
        • c. Limitations on Scope of Examination; Stipulations 4.38
        • d. Timing, Location, Service, and Format
          • (1) Timing, Location, and Service of Demand for Physical Examination 4.38A
          • (2) Format 4.38B
      • 6. Requests for Admission
        • a. Description 4.39
        • b. Limitations 4.39A
        • c. Specially Prepared Requests for Admissions 4.40
        • d. Using Judicial Council Forms 4.41
        • e. Timing, Service, and Other Requirements
          • (1) Timing 4.41A
          • (2) Service and Other Requirements 4.41B
        • f. Format 4.42
        • g. First Opportunity to Serve [Deleted] 4.43
        • h. Application to Serve Requests Early [Deleted] 4.44
        • i. Deadline to Serve [Deleted] 4.45
        • j. Methods of Service [Deleted] 4.46
        • k. Requesting Party's Right to Recover Cost of Proof [Deleted] 4.47
      • 7. Demand for Exchange of Expert Trial Witness Information
        • a. Description 4.48
        • b. Timing 4.48A
        • c. Procedures 4.49
        • d. Date and Place of Exchange 4.50
        • e. Format of Written Exchange 4.51
        • f. Format of Expert Witness Declaration 4.52
        • g. Motion to Augment and Amend Expert Witness Information 4.53
        • h. Withdrawal of Expert Designation 4.54
    • E. Other Discovery Procedures
      • 1. Request for Statement of Damages 4.55
      • 2. Demand for Bill of Particulars 4.56
    • F. Using Injunction to Prevent Destruction of Evidence 4.57
  • IV. RESPOND TO SPECIFIC DISCOVERY REQUESTS
    • A. Interrogatories
      • 1. Duty to Respond 4.58
        • a. Answering the Interrogatory 4.58A
        • b. Exercising the Option to Produce Writings 4.58B
        • c. Objecting to the Interrogatory 4.58C
        • d. Signature and Verification of Response
          • (1) By Party 4.58D
          • (2) By Attorney 4.58E
      • 2. Time to Complete Response; Failure to Timely Respond
        • a. Time to Respond 4.59
        • b. Service of Response 4.59A
        • c. Effect of Failure to Make Timely Response 4.60
      • 3. Format and Content of Response
        • a. Initial Responses; Related Papers 4.61
        • b. Further, Supplemental, and Amended Responses 4.61A
        • c. Signature and Verification of Response
          • (1) By Party [Deleted] 4.62
          • (2) By Party's Attorney [Deleted] 4.63
    • B. Demand for Inspection
      • 1. Duty to Respond 4.63A
        • a. Statement of Compliance 4.63B
        • b. Statement of Inability to Comply 4.63C
        • c. Objecting to the Demand 4.63D
      • 2. Signature and Verification 4.63E
      • 3. Time to Respond 4.63F
        • a. Service of Response 4.63G
        • b. Effect of Failure to Make Timely Response; Failure to Produce Items for Inspection, Copying, Testing, or Sampling 4.63H
      • 4. Format of Response 4.64
      • 5. Form of Production; Inadvertent Disclosures
        • a. Production of Documents 4.64A
        • b. Inadvertent Disclosure 4.64B
      • 6. Seeking Protective Order 4.65
      • 7. Further, Supplemental, and Amended Responses 4.65A
    • C. Requests for Admission
      • 1. Duty to Respond 4.66
      • 2. Objecting to the Request for Admission 4.66A
      • 3. Signature and Verification of Response 4.66B
      • 4. Time to Respond 4.67
        • a. Service of Response 4.67A
        • b. Effect of Failure to Make Timely Response 4.67B
      • 5. Format of Response 4.67C
      • 6. Further, Withdrawn, and Amended Responses 4.67D
      • 7. Motion for Protective Order 4.68
      • 8. Motion to Withdraw or Amend Admission [Deleted] 4.69
    • D. Demand for Exchange of Expert Witness Information
      • 1. Objecting to Untimely Demand 4.70
      • 2. Motion for Protective Order 4.71
    • E. Demand for Physical and Mental Examinations
      • 1. Potential Responses 4.72
      • 2. Time to Respond; Waiver 4.73
  • V. MOTIONS TO COMPEL RESPONSES OR FURTHER RESPONSES
    • A. Description 4.73A
    • B. Statutes Governing Specific Motions 4.74
    • C. Meet and Confer Requirement 4.75
    • D. Timing, Service , and Format
      • 1. Timing
        • a. 45-Day Limit 4.76
        • b. Time Extension by Stipulation 4.77
      • 2. Service 4.78
      • 3. Format 4.79
        • a. Notice of Motion 4.80
        • b. Memorandum in Support of Motion 4.81
        • c. Declaration or Affidavit 4.81A
        • d. Separate Statement of Disputed Responses 4.81B
  • VI. FORMS
    • A. Form: Form Interrogatories—General (Judicial Council Form DISC-001) 4.82
    • B. Form: Response to Interrogatories; Verification 4.83
    • C. Form: Requests for Admission (Judicial Council Form DISC-020) 4.84
    • D. Form: Sample Response to Requests for Admission 4.85

5

Law and Motion Practice

Susan J. Harriman

  • I. NATURE OF LAW AND MOTION PRACTICE
    • A. Wide Range of Civil Motions Involved; Governing Law 5.1
    • B. Preemptive Effect of Statewide Rules 5.2
    • C. Motion and Notice of Motion Defined; When Motion Is Deemed Made 5.3
  • II. PREPARING NOTICE OF MOTION AND SUPPORTING PAPERS
    • A. Necessary Papers 5.4
    • B. General Format and Content of Motion Papers
      • 1. Overall Physical Appearance and Related Requirements for Presentation 5.5
      • 2. Caption
        • a. Attorney Information 5.6
        • b. Title of Court and Notation of "Limited Civil Case" 5.7
        • c. Telephone Appearance 5.8
        • d. Title of Case 5.9
        • e. Nature of Paper 5.10
        • f. Date, Time, Location, and Other Details of Hearing
          • (1) Hearing Date and Time 5.11
          • (2) Hearing Location 5.12
          • (3) Name of Hearing Judge or Referee 5.13
        • g. Additional Information 5.14
        • h. Attachments 5.15
      • 3. Body of Motion
        • a. Required Elements 5.16
        • b. Nature of Order Sought 5.17
        • c. Grounds for Issuance of Order 5.18
        • d. Supporting Papers 5.19
        • e. Date 5.20
        • f. Signature 5.21
    • C. Preparing Supporting Documents
      • 1. Memorandum in Support of Motion
        • a. When Memorandum Required 5.22
        • b. Contents and Organization 5.23
        • c. Citation Format and Style 5.24
        • d. Length 5.25
        • e. Tables of Contents and Authorities 5.26
        • f. Introductory Statement; Introduction 5.27
        • g. Argument
          • (1) Inclusion of Argument Summary 5.28
          • (2) Concise and Persuasive Argument 5.29
        • h. Applicable Statutes and Cases 5.30
        • i. Conclusion and Optional Signing of Memorandum 5.31
      • 2. Declarations
        • a. Declaration Compared With Affidavit 5.32
        • b. Required Submission of Declaration and Use as Substitute for Oral Testimony 5.33
        • c. Selecting Declarant 5.34
        • d. Caption 5.35
        • e. Identity of Declarant 5.36
        • f. Competence of Declarant 5.37
        • g. Admissibility of Matters Stated 5.38
        • h. Signature
          • (1) Declaration 5.39
          • (2) Affidavit 5.40
      • 3. Pleadings and Papers on File 5.41
      • 4. Exhibits
        • a. Attaching Exhibits 5.42
        • b. Contracts, Letters, and Business Records as Exhibits 5.43
      • 5. Materials Lodged With Clerk 5.44
      • 6. Use of Copies 5.45
      • 7. Requests for Judicial Notice 5.46
  • III. PROCEDURE IN BRINGING MOTION
    • A. Time for Making Motion
      • 1. Timing Considerations 5.47
      • 2. Restrictions on Time for Motion or Hearing 5.48
      • 3. Shortening Time
        • a. By Stipulation 5.49
        • b. By Motion for Order Shortening Time 5.50
      • 4. Extending Time
        • a. By Stipulation 5.51
        • b. By Motion for Order Extending Time 5.52
    • B. Service and Filing
      • 1. Planning and Mode of Service in General
        • a. Whom to Serve 5.53
        • b. Effect on Timing of Hearing if Service Is by Other Than Personal Delivery 5.54
        • c. Service by Personal Delivery 5.55
        • d. Service by Mail 5.56
        • e. Service by Fax or Electronically 5.57
        • f. Proof of Service 5.58
      • 2. Special Rules for Service on Public Officers, Agencies, and Attorney General
        • a. Identification on Cover of Document 5.59
        • b. Service on Attorney General 5.60
        • c. Proof of Service 5.61
      • 3. Filing Papers With Court 5.62
  • IV. OPPOSING MOTION
    • A. Tactical Considerations
      • 1. Evaluation of Options and Factors 5.63
      • 2. Consulting With Client 5.64
      • 3. Leaving Motion Unopposed 5.65
      • 4. Resolving Motion by Stipulation or Compromise 5.66
    • B. Grounds for Opposing Motion
      • 1. Noncompliance With Procedural Requirements 5.67
      • 2. Evidentiary Matters Inadmissible or Declarant Incompetent 5.68
      • 3. Facts or Law Insufficient 5.69
    • C. Preparing Opposition Papers
      • 1. Memorandum in Opposition to Motion 5.70
      • 2. Declarations Opposing Motion 5.71
      • 3. Other Evidentiary Material 5.72
    • D. Opposition Procedure
      • 1. Check for Additional Filing Requirements 5.73
      • 2. Time for Filing Opposition Papers 5.74
      • 3. Filing and Serving Opposition Papers 5.75
      • 4. Moving for Continuance 5.76
  • V. REPLIES AND RESPONSES TO REPLIES
    • A. Reply to Opposition Papers 5.77
    • B. Responding to Reply 5.78
  • VI. HEARINGS, RULINGS, AND ORDERS
    • A. Hearings
      • 1. Attendance at Hearings
        • a. Attendance by Parties and Counsel 5.79
        • b. Telephone Appearances
          • (1) When Appropriate 5.80
          • (2) Notice of Intent to Appear by Telephone 5.81
          • (3) Personal Appearance After Notice to Appear by Telephone 5.82
          • (4) Teleconferencing 5.83
      • 2. Oral Argument; Answering Judge's Questions 5.84
      • 3. Presenting Evidence 5.85
    • B. Rulings and Orders
      • 1. Rulings and Orders Defined 5.86
      • 2. Court's Ruling on Noticed Motion 5.87
      • 3. Submission of Proposed Order 5.88
      • 4. Contents of Proposed Order 5.89
      • 5. Attorney Preparation of Order 5.90
      • 6. Findings 5.91
      • 7. Notice of Ruling 5.92
  • VII. POSTHEARING PROCEDURES
    • A. Procedures After Motion Granted
      • 1. Moving Party 5.93
      • 2. Opposing Party 5.94
    • B. Procedures After Motion Denied
      • 1. Motion for Reconsideration
        • a. Authority for Motion 5.95
        • b. Subsequent (Renewed) Motion for Same Order 5.96
        • c. Jurisdiction to Hear Motion 5.97
        • d. Denial of Motion 5.98
        • e. Sanctions 5.99
        • f. Appeal 5.100
      • 2. Court's Inherent Power to Reconsider 5.101
      • 3. Motion for Relief Under CCP §473 (Mistake, Inadvertence, Surprise, Neglect) 5.102
    • C. Sanctions 5.103
  • VIII. CHECKLISTS
    • A. Checklist: Moving Party's Procedures for Motions and Hearings 5.104
    • B. Checklist: Opposing Party's Procedure to Respond to Noticed Motion 5.105
  • IX. FORMS
    • A. Form: Notice of Motion 5.106
    • B. Form: Declaration Supporting Motion 5.107
    • C. Form: Declaration Opposing Motion 5.108
    • D. Form: Notice of Ruling on Motion 5.109
    • E. Form: Proposed Order 5.110
    • F. Form: Order After Hearing 5.111

6

Basic Criminal Practice

Maria E. Schopp

  • I. INITIAL CONSIDERATIONS IN HANDLING CRIMINAL CASES
    • A. Unique Circumstances of Criminal Practice 6.1
    • B. Meeting Standards of Professional Responsibility
      • 1. Complying With Professional Standards 6.2
      • 2. Competency to Handle Case 6.3
      • 3. Avoiding Conflicts of Interest 6.4
      • 4. Limited Withdrawal Opportunity After Accepting Case 6.5
      • 5. Maintaining Client's Confidences and Secrets as Part of Attorney-Client Privilege 6.6
      • 6. Duty to Investigate 6.7
      • 7. Duty to Assist on Appeal 6.8
      • 8. Prosecutorial Duty to Disclose Exculpatory Evidence 6.9
    • C. Attorney Fee Issues
      • 1. Privately Retained Counsel
        • a. Common Fee Arrangements 6.10
        • b. When Written Agreement Required 6.11
      • 2. Court-Appointed Private Counsel 6.12
    • D. Interview Client and Identify All Issues Arising Out of Crime Charged
      • 1. Using Interview to Understand Client's Entire Circumstances 6.13
      • 2. Client In or Out of Custody 6.14
      • 3. Nature of Offense Charged and Client's Prior Criminal History 6.15
      • 4. Other Pending Cases 6.16
      • 5. Prospective Job Loss and Related Economic and Support Issues 6.17
      • 6. Potential Deportation of Noncitizen Client for Criminal Conviction 6.18
    • E. Obtain and Review Police Report and Any Charging Documents 6.19
  • II. EVALUATING CHARGES AGAINST CLIENT
    • A. Distinguishing Types of Criminal Charges
      • 1. Infractions 6.20
      • 2. Misdemeanors 6.21
      • 3. Felonies 6.22
      • 4. "Wobblers" 6.23
    • B. Charges That Include Prior Offenses or Sentencing Enhancements
      • 1. Prior Offenses 6.24
      • 2. Sentencing Enhancements 6.25
    • C. Charges Subject to Diversion or Deferred Entry of Judgment Programs 6.26
    • D. Common Issues Involved in Selected Criminal Charges
      • 1. Illustrative Charges Presented 6.27
      • 2. Shoplifting 6.28
      • 3. Domestic Violence 6.29
      • 4. Driving Under the Influence
        • a. Wide Range of Issues and Consequences 6.30
        • b. Client's Arrest and Release 6.31
        • c. Role of DMV 6.32
        • d. Potential Criminal Charges 6.33
  • III. BASIC PRETRIAL PROCEDURES
    • A. Arraignment and Pleas
      • 1. Arraignment
        • a. General Purpose and Procedure 6.34
        • b. Arraignment on Citation 6.35
        • c. Arraignment on Complaint 6.36
        • d. Arraignment on Information or Indictment in Felony Prosecutions 6.37
      • 2. Pleas 6.38
    • B. Pretrial Motions
      • 1. Pretrial Motions in General 6.39
      • 2. Checklist: Common Pretrial Motions 6.40
    • C. Formal and Informal Discovery
      • 1. Reciprocal Right to Discovery by Defense and Prosecution 6.41
      • 2. Summary of Discovery to Be Provided to Defense 6.42
      • 3. Summary of Discovery to Be Provided to Prosecution 6.43
      • 4. Timing of Disclosures 6.44
    • D. Preliminary Hearing in Felony Cases 6.45
    • E. Suspension of Proceedings for Mental Health Issues or Evaluation 6.46
    • F. Disposing of Case Before Trial by Plea Bargaining
      • 1. Nature of Plea Bargaining 6.47
      • 2. Charge Versus Sentence Bargaining 6.48
      • 3. Timing of Plea Bargaining 6.49
      • 4. Limitations on Plea Bargaining
        • a. Certain Felonies and Prior Felony Convictions 6.50
        • b. Illegal Sentences 6.51
  • IV. TRIAL AND SENTENCING PROCEEDINGS
    • A. Trial
      • 1. Importance of Early Preparation 6.52
      • 2. Summary of Rights at Trial 6.53
      • 3. Order of Trial Presentation 6.54
    • B. Judgment and Sentencing After Trial
      • 1. Time and Procedure to Pronounce Judgment 6.55
      • 2. Misdemeanor Sentencing 6.56
      • 3. Felony Sentencing 6.57
  • V. POSTCONVICTION CONSEQUENCES
    • A. Registration as Certain Type of Offender 6.58
    • B. License Suspensions 6.59
    • C. Special Probation Conditions
      • 1. Offenses Subject to Mandatory Conditions 6.60
      • 2. Specific Discretionary Conditions 6.61

7

Personal Injury

Micha Star Liberty

  • I. UNDERSTANDING SCOPE OF PERSONAL INJURY MATTERS 7.1
  • II. INITIAL PROCEDURES AND CONSIDERATIONS IN HANDLING CASE
    • A. Client Interview 7.2
    • B. Establishing Fee Agreement and Obtaining Authorizations
      • 1. Fee Agreement
        • a. Contingent Fee Agreements 7.3
        • b. Other Fee Agreements 7.4
        • c. Limitations on Fees
          • (1) Medical Malpractice Cases 7.5
          • (2) MICRA Cases 7.6
      • 2. Obtaining Authorizations for Documents 7.7
    • C. Advising Client Regarding Medical Care and Returning to Work 7.8
    • D. Identifying Statute of Limitations
      • 1. Two-Year Limitations Period 7.9
      • 2. Special Limitation Periods 7.10
      • 3. Tolling of Statute During Child's Minority 7.11
    • E. Accounting for Reimbursement Rights and Liens 7.12
    • F. Exhausting Administrative Remedies if Claim Against Public Entity
      • 1. When Required; Procedure 7.13
      • 2. Time Limits 7.14
    • G. Determining Right of Plaintiff-Decedent's Representative or Survivors to Bring Action After Plaintiff's Death
      • 1. Personal Representative's Right to Bring Plaintiff-Decedent's Cause of Action 7.15
      • 2. Survivors' Own Actions in Wrongful Death Cases Contrasted 7.16
    • H. Availability of Liability Insurance 7.17
    • I. Consideration of Collateral Estoppel and Res Judicata
      • 1. Collateral Estoppel 7.18
      • 2. Res Judicata 7.19
    • J. Avoiding Splitting Cause of Action 7.20
  • III. EVALUATING LIABILITY
    • A. Negligence
      • 1. General Definition of Negligence 7.21
      • 2. Elements 7.22
      • 3. Application of Standard of Care to Specific Classes of Persons
        • a. Minors 7.23
        • b. Disabled Persons 7.24
        • c. Professionals and Specialists With Occupational Standards 7.25
    • B. Strict Liability 7.26
  • IV. EVALUATING DEFENSES
    • A. Comparative Fault 7.27
    • B. Contributory Negligence 7.28
    • C. Contributory Willful Misconduct 7.29
    • D. Assumption of Risk
      • 1. "Primary" (Implied) Assumption of Risk 7.30
      • 2. "Secondary" Assumption of Risk 7.31
      • 3. Express Assumption of Risk by Preinjury Agreement for Release of Liability 7.32
    • E. Other Defenses
      • 1. Statute of Limitations 7.33
      • 2. Failure to Mitigate Damages 7.34
      • 3. Workers' Compensation as Exclusive Remedy 7.35
      • 4. Defenses Available to Public Entities as Defendants
        • a. Public Entity May Assert Defenses Available to Private Persons 7.36
        • b. Liability Limited by Statute 7.37
        • c. Failure to Exhaust Administrative Remedies
          • (1) Availability as Defense 7.38
          • (2) Exceptions 7.39
  • V. ASSESSING DAMAGES
    • A. Terminology Used in Assessing Damages
      • 1. General and Special Damages 7.40
      • 2. Economic and Noneconomic Damages 7.41
    • B. Specific Types of General Damages
      • 1. Bodily Injury 7.42
      • 2. "Just" Damages in Wrongful Death Cases
        • a. Determining Damages That Are "Just" 7.43
        • b. Recoverable Elements 7.44
      • 3. Pain and Suffering 7.45
      • 4. Emotional Distress 7.46
      • 5. Loss of Consortium 7.47
      • 6. Limitations on General Damages 7.48
    • C. Special Damages
      • 1. Lost Wages and Impaired Earning Capacity 7.49
      • 2. Reimbursement of Medical Expenses 7.50
    • D. Future Damages 7.51
    • E. Punitive Damages 7.52
  • VI. ISSUES IN TYPICAL PERSONAL INJURY CASES
    • A. Motor Vehicle (Automobile) Negligence Cases
      • 1. Liability
        • a. Liability of Drivers
          • (1) Duty to Use Ordinary Care 7.53
          • (2) Statutory Duties 7.54
          • (3) Intentional, Willful, and Reckless Misconduct 7.55
        • b. Liability of Automobile Owners
          • (1) Vicarious Liability for Permissive Use 7.56
          • (2) Negligent Entrustment 7.57
          • (3) Failure to Equip and Maintain Safe Vehicle 7.58
          • (4) Failure to Take Precautions Against Theft 7.59
        • c. Liability of Adults for Minors at Fault 7.60
        • d. Supervising Minor With Driver's Permit 7.61
        • e. Employers and Principals
          • (1) Respondeat Superior 7.62
          • (2) Personal Negligence of Employer 7.63
          • (3) Independent Contractors
            • (a) Public Franchise Rule; Carriers 7.64
            • (b) Contractor Hired to Do Dangerous Work 7.65
            • (c) Negligent Hiring 7.66
      • 2. Defenses
        • a. Contributory Negligence 7.67
        • b. Assumption of Risk
          • (1) General Principles 7.68
          • (2) Firefighter's Rule 7.69
        • c. Willful Misconduct of Plaintiff 7.70
    • B. Premises Liability
      • 1. Liability of Private Property Owners in General
        • a. Owner's Liability to Visitors
          • (1) Standard of Ordinary Care 7.71
          • (2) Visitor's Status
            • (a) Invitee, Licensee, Trespasser 7.72
            • (b) Criminals 7.73
            • (c) Minor (Attractive Nuisance) 7.74
            • (d) Firefighters, Peace Officers, Emergency Medical Personnel
              • (i) Application of Firefighter's Rule 7.75
              • (ii) Exceptions to Firefighter's Rule 7.76
            • (e) Recreational Users of Private Property
              • (i) General Rule of Immunity 7.77
              • (ii) Exceptions to Immunity 7.78
            • (f) Resort, Amusement Place, and Swimming Pool Users 7.79
            • (g) Owner's Liability for Conduct of Others 7.80
        • b. Injuries on Public Sidewalks or Streets Adjacent to Private Property 7.81
      • 2. Defenses to Premises Liability
        • a. Contributory Fault 7.82
        • b. Assumption of Risk 7.83
        • c. Release Agreements
          • (1) Limitations on Owners' Liability to Visitors 7.84
          • (2) Limitations on Landlords' Liability to Tenants 7.85
    • C. Injuries Involving Dogs and Other Animals
      • 1. Persons Liable; Theories
        • a. Keeper or Owner
          • (1) Multiple Potential Bases of Liability 7.86
          • (2) Strict Liability
            • (a) Dog-Bite Statute 7.87
            • (b) Dangerous Animal Rule; Known Dangerous Traits
              • (i) Scope of Rule 7.88
              • (ii) Knowledge of Trait 7.89
            • (c) Trespassing Animals 7.90
          • (3) Negligence
            • (a) Animal Need Not Be Known to Be Vicious 7.91
            • (b) Failure to Warn, Restrain, or Control 7.92
            • (c) Failure to Vaccinate Dog for Rabies 7.93
            • (d) Violation of Local Leash Law 7.94
            • (e) Duty of Due Care to Control Livestock on Highway 7.95
        • b. Owner's Employer or Landlord 7.96
        • c. Other Potential Defendants 7.97
      • 2. Defenses
        • a. Statute of Limitations 7.98
        • b. Contributory Negligence
          • (1) As Defense to Strict Liability Cause of Action 7.99
          • (2) As Defense to Negligence Cause of Action 7.100
          • (3) Assumption of Risk
            • (a) Secondary Assumption of Risk 7.101
            • (b) Assumption of Risk That Bars Recovery 7.102
            • (c) Application of Assumption of Risk in Specific Contexts
              • (i) Injury Caused by Dog; Veterinarian's Rule 7.103
              • (ii) Injury Caused by Horse: Primary and Express Assumption of Risk 7.104
        • c. Willfully Invited Injury 7.105
        • d. Public Entity Immunities 7.106
        • e. Effect of Medical Injury Compensation Reform Act (MICRA) 7.107
    • D. Product Liability Cases
      • 1. Strict Product Liability 7.108
      • 2. Liability Based on Negligence
        • a. Negligence Liability as Alternative to Strict Liability 7.109
        • b. Persons to Whom Duty of Care Owed 7.110
    • E. Medical Malpractice Cases
      • 1. Medical Doctors (Physicians and Surgeons)
        • a. General Grounds for Professional Liability; Notice 7.111
        • b. Battery for Unauthorized Surgery or Treatment 7.112
        • c. Sexual Contact With or Harassment of Patient 7.113
        • d. Other Grounds 7.114
      • 2. Other Practitioners 7.115
      • 3. Hospitals, Sanitariums, and Rest Homes 7.116
      • 4. Defenses 7.117
      • 5. Recovery From (or Release of) Initial Tortfeasor; Indemnity 7.118
      • 6. Effect of Medical Injury Compensation Reform Act (MICRA) 7.119
  • VII. CHECKLIST AND FORMS
    • A. Checklist: General Client Interview for Personal Injury Case 7.120
    • B. Form: Sample Client Authorization to Release Medical Information or Police Report 7.121
    • C. Form: Sample Demand Letter-General Form 7.122

8

Uncontested Marital Dissolutions

Shanon K. Quinley

  • I. HOW UNCONTESTED PROCEEDINGS ARISE 8.1
  • II. REPRESENTING CLIENT AND DEALING WITH UNREPRESENTED PARTY
    • A. Representing Client and Avoiding Dual Representation
      • 1. Importance of Written Fee Agreement for Representation 8.2
      • 2. Avoidance of Dual Representation 8.3
    • B. Dealing With Unrepresented Party 8.4
  • III. INITIAL PROCEDURAL CONSIDERATIONS AND STEPS
    • A. Jurisdiction and Venue Rules in Dissolution Cases
      • 1. Subject Matter Jurisdiction
        • a. Exclusive Jurisdiction of Superior Court 8.5
        • b. Residency Requirement as Element of Jurisdiction 8.6
        • c. Jurisdiction in Child Custody and Visitation Cases 8.7
      • 2. Personal Jurisdiction 8.8
      • 3. Venue 8.9
    • B. Filing Dissolution Petition and Related Papers; Issuance of Summons
      • 1. Dissolution Petition 8.10
      • 2. Related Papers
        • a. Declaration Under UCCJEA 8.11
        • b. Voluntary Declaration of Paternity 8.12
        • c. Property Declaration 8.13
        • d. Child Custody and Visitation Attachments 8.14
      • 3. Issuance of Summons 8.15
    • C. Disclosure Declaration and Related Forms 8.16
    • D. Forms Possibly Needed for Temporary Orders 8.17
    • E. Service of Petition, Summons, and Other Forms 8.18
  • IV. ALTERNATIVE PROCEDURES FOR UNCONTESTED CASE AFTER SERVICE OF PETITION AND SUMMONS
    • A. Default by Respondent
      • 1. Defaults With and Without Agreement Contrasted 8.19
      • 2. When Default Available 8.20
      • 3. Scope of Relief on Default 8.21
      • 4. Submitting Forms
        • a. Request to Enter Default and Attachments 8.22
        • b. Additional Forms 8.23
      • 5. Entry of Default 8.24
    • B. Stipulated Appearance by Respondent 8.25
  • V. ISSUES TO RESOLVE IN REACHING SETTLEMENT AGREEMENT
    • A. Date of Separation 8.26
    • B. Child Custody, Visitation, and Support
      • 1. Child Custody and Visitation 8.27
      • 2. Child Support
        • a. Authority to Order Support and Duration 8.28
        • b. Child Support Guideline
          • (1) Mandatory Nature of Guideline; Calculation 8.29
          • (2) Time-Share Factor 8.30
          • (3) Special Adjustments to Formula
            • (a) Mandatory and Discretionary "Add-Ons" 8.31
            • (b) Low-Income Adjustment 8.32
            • (c) Extraordinarily High Income 8.33
            • (d) Parties' Stipulation 8.34
        • c. Tax Aspects 8.35
    • C. Spousal Support
      • 1. Nature of Support Duty; Waiver 8.36
      • 2. Temporary Versus Long-Term Support
        • a. Temporary Support 8.37
        • b. Long-Term Support 8.38
    • D. Family Support 8.39
    • E. Separate Property Confirmation 8.40
    • F. Community Property Division
      • 1. Equal Division as Basic Rule; Valuation 8.41
      • 2. Determining Property Subject to Division 8.42
      • 3. Dividing Particular Assets
        • a. Family Residence 8.43
        • b. Multiple-Party Accounts 8.44
        • c. Retirement and Pension Benefits 8.45
        • d. Social Security Benefits 8.46
        • e. Stock Options 8.47
        • f. Personal Injury Damages 8.48
        • g. Workers' Compensation Benefits 8.49
        • h. Small Businesses and Professional Practices 8.50
        • i. Life Insurance 8.51
      • 4. Special Reimbursement Issues
        • a. Community or Separate Contributions to Acquisition of Property 8.52
        • b. Community Contributions to Party's Education or Training 8.53
        • c. Debts Paid After Separation But Before Trial 8.54
    • G. Choosing Form of Agreement
      • 1. Stipulated Judgment 8.55
      • 2. Marital Settlement Agreement
        • a. Nature and Execution of Agreement 8.56
        • b. Treatment of Agreement in Relation to Court Judgment
          • (1) Incorporation of Agreement in Judgment 8.57
          • (2) Approval of Agreement by Court 8.58
          • (3) Merger of Agreement into Judgment 8.59
      • 3. Considerations in Choosing Form of Agreement
        • a. Enforcement 8.60
        • b. Expense 8.61
        • c. Stage of Proceeding 8.62
        • d. Privacy 8.63
  • VI. OBTAINING UNCONTESTED JUDGMENT
    • A. Proof of Facts for Dissolution
      • 1. Statutory Proof Requirement 8.64
      • 2. Proof by Declaration General Rule 8.65
      • 3. Proof by Hearing
        • a. Need for Hearing 8.66
        • b. Setting Hearing 8.67
        • c. Notice of Hearing 8.68
        • d. Proof of Facts 8.69
    • B. Preparation and Submission of Proposed Judgment
      • 1. Overview of Procedure 8.70
      • 2. When No Agreement Exists 8.71
      • 3. When Parties Have Agreement
        • a. Agreement Must Be in Written Form 8.72
        • b. Making Enforceable Record of Agreement 8.73
        • c. Judicial Discretion to Reject Agreement 8.74
    • C. Submitting Form for Notice of Entry of Judgment 8.75
  • VII. CHECKLIST AND FORMS
    • A. Checklist: Documents to Obtain 8.76
    • B. Form: Request to Enter Default (Judicial Council Form FL-165) 8.77
    • C. Form: Appearance, Stipulations, and Waivers (Judicial Council Form FL-130) 8.78
    • D. Form: Declaration for Default or Uncontested Dissolution or Legal Separation (Judicial Council Form FL-170) 8.79
    • E. Form: Judgment (Family Law) (Judicial Council Form FL-180) 8.80

9

Employment Cases

Stephen M. Murphy

  • I. BROAD SCOPE OF POTENTIAL EMPLOYMENT ISSUES 9.1
  • II. DETERMINING TYPE OF EMPLOYMENT RELATIONSHIP
    • A. Significance of Type of Employment Relationship 9.2
    • B. Distinguishing Employees From Independent Contractors
      • 1. General Characteristics of Employer-Employee Relationship
        • a. Right to Control Manner and Means of Producing Result 9.3
        • b. Specific Factors to Consider 9.4
      • 2. Independent Contractor Relationships Contrasted 9.5
    • C. Effect of Misclassification 9.6
  • III. RIGHT TO ASSERT CLAIMS FOR DISCRIMINATION OR HARASSMENT
    • A. Evaluating Type of Claim, Choosing Forum, and Exhausting Administrative Remedies
      • 1. Evaluating Type of Claim 9.7
      • 2. Choosing Forum 9.8
      • 3. Need to Exhaust Administrative Remedies 9.9
    • B. California State and Local Authority for Assertion of Claim
      • 1. Discrimination Based on Race, Religion, National Origin, Disability, Gender, and Other Factors
        • a. Fair Employment and Housing Act (FEHA)
          • (1) FEHA Protects Against Wide Range of Discrimination 9.10
          • (2) Retaliation Forbidden 9.11
          • (3) Aiding, Inciting, or Coercing Violation of FEHA Forbidden 9.12
        • b. Unruh and Other Civil Rights Acts
          • (1) Unruh Civil Rights Act 9.13
          • (2) Ralph Civil Rights Act 9.14
        • c. Civil Code §52.4 Action for Gender Violence 9.15
      • 2. Discrimination Based on Exercise of Family Leave Rights 9.16
      • 3. Gender-Based Pay Discrimination 9.17
      • 4. Interference With Exercise of Legal Rights 9.18
      • 5. Local Ordinance Authority for Assertion of Claim 9.19
    • C. Federal Authority for Assertion of Claim
      • 1. Discrimination Based on Race, Color, Religion, Sex, or National Origin 9.20
      • 2. Deprivation of Any Federal Right 9.21
      • 3. Deprivation of Equal Protection of the Law 9.22
      • 4. Gender-Based Pay Discrimination 9.23
      • 5. Age Discrimination 9.24
      • 6. Discrimination Based on National Origin or Citizenship Status 9.25
      • 7. Discrimination Based on Disabilities 9.26
      • 8. Discrimination Based on Genetic Information 9.27
  • IV. RIGHT TO ASSERT CLAIMS FOR WAGES AND BENEFITS
    • A. Need to Consider State and Federal Remedies; Administrative Claims 9.28
    • B. Wage and Hour Claims
      • 1. Wage and Hour Claims in General
        • a. Federal Authority for Assertion of Claim
          • (1) Fair Labor Standards Act 9.29
          • (2) Portal-to-Portal Act of 1947 9.30
          • (3) Other Federal Law 9.31
        • b. California Authority for Assertion of Claim and Enforcement
          • (1) Authority for Assertion of Claim
            • (a) Violations of Wage and Hour Laws 9.32
            • (b) Effect of IWC Wage Orders; Exceptions 9.33
          • (2) Enforcement 9.34
      • 2. Assertion of Particular Wage and Hour Claims
        • a. Overtime and Minimum Wage Requirements
          • (1) Overtime Requirements 9.35
          • (2) Minimum Wage Requirements 9.36
          • (3) Exemptions From Overtime and Minimum Wage Requirements 9.37
        • b. Meal and Rest Period Requirements 9.37A
        • c. Pay Periods 9.38
        • d. Recordkeeping Requirements 9.38A
          • (1) Itemized Payroll Statements 9.38B
        • e. Payment of Wages on Termination of Employment 9.39
        • f. Child Labor Issues 9.40
    • C. Family and Medical Leave
      • 1. Applicable California and Federal Law in General; Eligibility 9.41
      • 2. Remedies Under Federal FMLA 9.42
      • 3. Remedies Under CFRA 9.43
    • D. Other Types of Leave and Time Off
      • 1. Sick Leave and Medical Leave to Accommodate Disability
        • a. Sick Leave 9.44
        • b. Medical Leave to Accommodate Disability 9.45
      • 2. Vacation Time 9.46
      • 3. Legal Holidays 9.47
      • 4. Pregnancy Disability Leave 9.48
      • 5. Paid Time Off 9.49
  • V. RIGHT TO ASSERT CLAIMS FOR RETALIATION IN VIOLATION OF PUBLIC POLICY OR FOR WHISTLEBLOWING
    • A. Termination of Employment in Violation of Public Policy 9.50
    • B. Employer Retaliation for "Whistleblowing"
      • 1. California Authority for Assertion of Claim 9.51
      • 2. Federal Authority for Assertion of Claim 9.52
  • VI. FORMS
    • A. Form: Sample Complaint for Damages for Disability Discrimination Based on Medical Condition 9.53
    • B. Form: Sample Complaint for Damages for Sexual Harassment 9.54

10

Workers' Compensation Cases

Dennis A. Popalardo, Jr.

Justin M. Litvack

Carrie D. Wipplinger

  • I. GOVERNING LAW AND BASIC CONCEPTS OF WORKERS' COMPENSATION SYSTEM
    • A. Governing Law
      • 1. Injuries After 2004 10.1
      • 2. Main Features 10.2
    • B. Relationship to Tort Law 10.3
    • C. Potential Collateral Benefits 10.4
    • D. Attorney Fees 10.5
    • E. Involvement of State Division of Workers' Compensation (DWC)
      • 1. Overall Role 10.6
      • 2. Information and Assistance Officers 10.7
      • 3. Electronic Adjudication Management System (EAMS) 10.8
  • II. PREREQUISITES FOR RECOVERY
    • A. Specific Conditions of Compensability
      • 1. Conditions Summarized 10.9
      • 2. Employer and Employee Must Be Subject to Workers' Compensation Laws
        • a. Employer and Employee Defined 10.10
        • b. Included Occupations 10.11
        • c. Excluded Occupations 10.12
        • d. Joint Employers 10.13
      • 3. Services Must Be Related to Employment 10.14
      • 4. Proximate Cause 10.15
      • 5. Post-Termination Claims
        • a. Physical Injuries 10.16
        • b. Psychiatric Injuries 10.17
    • B. What Constitutes "Arising Out of and In Course of Employment" (AOE/COE)
      • 1. Rule Stated 10.18
      • 2. Arising Out of Employment
        • a. Condition of Employer's Premises or Equipment 10.19
        • b. Extraneous or Unknown Source: Positional Risk or Zone of Danger Rule 10.20
        • c. Employment Risks Versus Personal Risks 10.21
        • d. Employee's Preexisting Conditions 10.22
        • e. Horseplay 10.23
        • f. Intoxication 10.24
        • g. Self-Inflicted Injuries 10.25
        • h. Suicide 10.26
        • i. Initial Physical Aggressor 10.27
        • j. Felony Convictions 10.28
      • 3. Arising in Course of Employment
        • a. Focus on Time and Space Limitations of Employment 10.29
        • b. Unauthorized or Forbidden Manner of Performing Work 10.30
        • c. Activities for Personal Comfort and Convenience 10.31
        • d. Lunch and Coffee Breaks 10.32
        • e. "Bunkhouse Rule" 10.33
        • f. Commercial Travelers; Travel Between Worksites 10.34
        • g. Activities Before and After Work Hours 10.35
        • h. Restriction for Recreational, Social, and Athletic Activity 10.36
        • i. Going and Coming Rule 10.37
        • j. Telecommuting 10.38
        • k. Traveling to or From Medical Appointments 10.39
    • C. Injury Defined
      • 1. Event Gives Rise to Liability; Disability Distinguished 10.40
      • 2. Disease 10.41
      • 3. Psychiatric Injury 10.42
      • 4. Other Compensable Injuries 10.43
  • III. WORKERS' COMPENSATION BENEFITS
    • A. Benefits Summarized 10.44
    • B. Medical Treatment and Legal Expenses
      • 1. Extent of Treatment Benefits
        • a. All Reasonably Required Medical Services 10.45
        • b. Expenses for Requested Medical-Legal Examination 10.46
        • c. Expenses for Travel Incident to Treatment 10.47
      • 2. Employer's Obligation to Provide Treatment
        • a. Treatment Reasonably Required Must Be Provided 10.48
        • b. Control of Treatment
          • (1) Employer Has Initial Control 10.49
          • (2) Worker's Right to Change Physician; Treatment by HCO 10.50
        • c. Physician Reports
          • (1) Initial Report 10.51
          • (2) Progress Reports 10.52
          • (3) Permanent and Stationary Report 10.53
        • d. Self-Procured Medical Treatment 10.54
        • e. Medical Treatment Utilization Schedule (MTUS) 10.55
        • f. Utilization Review 10.56
      • 3. Legal Expenses
        • a. Medical-Legal Expenses 10.57
        • b. Procedure to Recover Costs 10.58
        • c. Interpreter's Fees 10.59
        • d. Attorney Fees 10.60
        • e. Other Costs 10.61
    • C. Temporary Disability
      • 1. Right to Temporary Disability Indemnity 10.62
      • 2. Total or Partial 10.63
      • 3. Availability of "Light" or "Modified" Work 10.64
      • 4. Payment and Timing of Disability Payments 10.65
      • 5. Calculating Average Weekly Earnings 10.66
    • D. Permanent Disability
      • 1. Right to Payment for Permanent Disability 10.67
      • 2. What Is Permanent Disability?
        • a. Disability Must Be Permanent and Stationary 10.68
        • b. Progressive Diseases 10.69
        • c. Disability May Be Total or Partial 10.70
      • 3. Effect of Earnings on Permanent Disability 10.71
      • 4. Calculating Permanent Disability Payments
        • a. Permanent Partial Disability 10.72
        • b. Permanent Total Disability 10.73
    • E. Supplemental Job Displacement Benefits 10.74
    • F. Death Benefits, Dependents, and Burial Expenses
      • 1. Benefits if Work-Related Injury Proximately Caused Death 10.75
      • 2. Death Benefits 10.76
      • 3. Determining Dependents 10.77
      • 4. Burial Expenses 10.78
  • IV. CLAIMS PROCEDURE
    • A. Initial Stages
      • 1. Client Interview 10.79
      • 2. Counsel's Initial Role 10.80
      • 3. Necessary Forms and Releases 10.81
      • 4. Notice to Employer of Claimed Injury
        • a. Use of Claim Form to Give Notice 10.82
        • b. Thirty-Day Deadline 10.83
        • c. When Claim Form Is Deemed Filed With Employer 10.84
        • d. Effects of Filing Claim Form 10.85
      • 5. Employer's Response to Claim Form (Denial or Acceptance) 10.86
    • B. General Dispute Resolution Procedures
      • 1. Role of Workers' Compensation Appeals Board 10.87
      • 2. Application for Adjudication of Claim
        • a. File Application Form With WCAB 10.88
        • b. Effect of Filing Application for Adjudication of Claim 10.89
        • c. Serve Application for Adjudication of Claim 10.90
      • 3. Particular Types of Disputes
        • a. Disputes on Compensability of Injury Under Workers' Compensation 10.91
        • b. Disputes Regarding Permanent Disability 10.92
        • c. Disputes Regarding Medical Treatment
          • (1) Mandatory Application of Utilization Review Process 10.93
          • (2) Utilization Review Described 10.94
          • (3) Mandatory Deadlines 10.95
      • 4. Dispute Resolution When Recommended Treatment Not Approved in Full 10.96
      • 5. Medical Evaluation Procedures
        • a. Nature and Function of Procedures 10.97
        • b. Obtaining Medical Evaluation
          • (1) Agreement on Evaluator 10.98
          • (2) Selecting Evaluator 10.99
          • (3) Appointment for Examination 10.100
          • (4) Communicating With Medical Evaluator 10.101
        • c. Evaluation and Report of Qualified Medical Evaluator or Agreed Medical Evaluator 10.102
        • d. Effect of Evaluation 10.103
        • e. Obtaining Medical Evaluation in Medical Provider Network 10.104
    • C. Declaration of Readiness to Proceed 10.105
    • D. Trial Preparation
      • 1. Discovery
        • a. Typical Reliance on Items in Employer's Possession 10.106
        • b. Obtaining Medical Reports 10.107
        • c. Subpoenas 10.108
        • d. Depositions
          • (1) Timing 10.109
          • (2) Employee's Deposition 10.110
          • (3) Other Depositions 10.111
      • 2. Delays in Obtaining Medical and Disability Benefits 10.112
      • 3. Mandatory Settlement Conference
        • a. Timing 10.113
        • b. Conduct of Mandatory Settlement Conference 10.114
        • c. When Hearing Required After Conference 10.115
        • d. Certain Evidence Not Admissible 10.116
    • E. Settlement
      • 1. Advantages 10.117
      • 2. Types of Settlement
        • a. Compromise and Release Agreement
          • (1) What Applicant Entitled to Receive 10.118
          • (2) Forms 10.119
          • (3) Approval 10.120
          • (4) Effect of Approval 10.121
        • b. Stipulations With Request for Award
          • (1) Function 10.122
          • (2) Form 10.123
          • (3) Effect 10.124
    • F. Hearings
      • 1. Purpose 10.125
      • 2. Conduct of Hearing
        • a. Trial Briefs and Oral Statements 10.126
        • b. Narrow Issues and Limit Presentations 10.127
        • c. Confirm Issues and Stipulations 10.128
        • d. Raise Issue or Risk Waiver 10.129
        • e. Order of Proof 10.130
        • f. How Workers' Compensation Judge Weighs Evidence 10.131
        • g. Continuances 10.132
        • h. Disposition and Submission 10.133
      • 3. Evidence 10.134
      • 4. Burden of Proof 10.135
      • 5. Presumptions 10.136
      • 6. Decision After Hearing
        • a. Timing 10.137
        • b. Components 10.138
        • c. Interest on Award 10.139
        • d. Appealing Award to Worker's Compensation Appeals Board 10.140
    • G. Arbitration 10.141
    • H. Reconsideration 10.142
    • I. Judicial Review 10.143
  • V. CHECKLIST: INFORMATION NECESSARY TO PURSUE WORKERS' COMPENSATION CLAIM 10.144

11

Residential Landlord-Tenant Issues

Laura L. Lane

  • I. WIDE RANGE OF POTENTIAL LANDLORD-TENANT MATTERS 11.1
  • II. CREATING THE LANDLORD-TENANT RELATIONSHIP
    • A. Need for Contractual Agreement; Terminology 11.2
    • B. Special Issues in Offering Premises for Rent
      • 1. Rental Applications, Tenant Screening, and Screening Fees 11.3
      • 2. Inspection of Rental Premises and Collection of Security Deposit 11.4
      • 3. Negotiations Leading to Agreement 11.5
    • C. Rental Agreement
      • 1. Legal Requirements of Rental Agreement 11.6
      • 2. Advantages and Disadvantages of Written Agreement
        • a. For Landlord 11.7
        • b. For Tenant 11.8
      • 3. Using Preprinted Forms 11.9
      • 4. Requisites of Agreement
        • a. Parties and Their Capacity to Enter Into Agreement 11.10
        • b. Consideration and Payment of Rent 11.11
        • c. Description of Premises 11.12
        • d. Term of Tenancy 11.13
        • e. Use of Premises 11.14
        • f. Required Disclosures
          • (1) Mandate of State and Federal Law 11.15
          • (2) Disclosures Required by CC §1962 and Related Statutes
            • (a) Agent for Service of Process 11.16
            • (b) Information About Payment of Rent 11.17
            • (c) Penalties for Nondisclosure 11.18
            • (d) Providing Copy of Agreement or Written Statement to Tenant 11.19
          • (3) Other Required Disclosures
            • (a) Common-Area Utilities 11.20
            • (b) Carcinogenic Material 11.21
            • (c) Lead Paint Warning Statement 11.22
            • (d) Notice of Negative Credit Report 11.23
            • (e) Deaths on Premises 11.24
            • (f) Proposed Demolition 11.25
            • (g) Potentially Explosive Munitions 11.26
            • (h) "Megan's Law" Disclosure in Residential Leases 11.27
            • (i) Structural Pest Control Notice 11.28
            • (j) Methamphetamine Contamination 11.29
            • (k) Mold 11.30
            • (l) Smoking Restrictions 11.31
            • (m) Pending Foreclosure 11.31A
            • (n) Pending Condominium Conversion 11.31B
        • g. Prohibited Provisions in Residential Rental Agreements 11.32
        • h. Execution of Rental Agreement
          • (1) By Spouses 11.33
          • (2) By Joint Tenants or Tenants in Common 11.34
          • (3) By Agents 11.35
          • (4) By Guardians 11.36
    • D. Fair Housing Considerations in Tenant Selection
      • 1. Applicable Law 11.37
      • 2. Exemptions to FEHA 11.38
      • 3. Prohibited Conduct 11.39
      • 4. Remedies 11.40
    • E. Special Considerations in Rent-Controlled Jurisdictions
      • 1. Limitations on Rent Increases 11.41
      • 2. Eviction Control 11.42
    • F. Special Requirements for Government-Owned and Government-Subsidized Rental Housing
      • 1. Public Housing 11.43
      • 2. Nonprofit Housing, Tax Credit Properties, and Other Low-Income Housing 11.44
      • 3. Section 8 Housing Choice Vouchers 11.45
  • III. RIGHTS AND OBLIGATIONS
    • A. Tenant's Right to Exclusive Possession of the Premises 11.46
    • B. Implied Covenant of Quiet Enjoyment 11.47
    • C. Implied Covenant of Good Faith and Fair Dealing 11.48
    • D. Landlord's Limited Right of Entry 11.49
    • E. Implied Warranty of Habitability and Landlord's Duty to Maintain Property
      • 1. Implied Warranty of Habitability 11.50
      • 2. Landlord's Duty to Maintain Rental Property 11.51
      • 3. Tenant's Remedies for Breach of Habitability Warranty or Landlord's Repair Duty
        • a. Notify Building Inspectors 11.52
        • b. Vacate Premises; Abandon Leasehold 11.53
        • c. Repair and Deduct 11.54
        • d. Withhold Rent 11.55
        • e. Petition Local Rent Board 11.56
        • f. File Civil Action
          • (1) Action for Breach of Habitability Warranty 11.57
          • (2) Action for Personal Injuries and Property Damage 11.58
      • 4. Tenant's Duty of Care 11.59
    • F. Assignment and Subletting 11.60
    • G. Extension and Renewal of Rental Term 11.61
    • H. Sale and Purchase of the Rental Property 11.61A
    • I. Landlord's Duty to Reasonably Accommodate Tenant's Disability 11.62
    • J. Changing Terms of Tenancy; Rent Increases
      • 1. Fixed-Term Tenancies 11.63
      • 2. Periodic Tenancies
        • a. Changing Terms in General; Notice 11.64
        • b. Rent Increases 11.65
  • IV. TERMINATING THE TENANCY
    • A. Methods of Terminating Tenancy 11.66
    • B. General Rules for Terminating Fixed-Term and Periodic Tenancies
      • 1. Termination of Fixed-Term Tenancy 11.67
      • 2. Termination of Periodic Tenancy
        • a. Written Notice Required 11.68
        • b. Termination During Sale of Rental Unit 11.69
        • c. Termination by Tenant's Death 11.70
    • C. Other Means of Termination
      • 1. Tenant's Surrender 11.71
      • 2. Tenant's Abandonment
        • a. Definition and Effect 11.72
        • b. Establishing Abandonment 11.73
        • c. Landlord's Remedies 11.74
    • D. Termination by Constructive Eviction 11.75
    • E. Termination by Withdrawing Property From Rental Market 11.76
    • F. Termination of Tenancy After Foreclosure 11.77
    • G. Termination for Tenant's Breach of Rental Agreement
      • 1. Three-Day Notice 11.78
      • 2. Limitations on Landlord's Ability to Terminate Tenancy
        • a. Retaliation
          • (1) Retaliation Against Tenant Prohibited 11.79
          • (2) Retaliation in Nonpayment of Rent Case 11.80
          • (3) Common Law and Statutory Retaliatory Eviction Defense 11.81
        • b. Discrimination 11.82
        • c. Domestic Violence and Elder Abuse 11.83
    • H. Unlawful Detainer Proceedings
      • 1. Nature of Unlawful Detainer Proceeding 11.84
      • 2. Strict Compliance With Notice Provisions Required 11.85
      • 3. When 3-Day Notice Required for Unlawful Detainer 11.86
      • 4. Unlawful Detainer Actions That Require No Notice
        • a. Tenant Gives Notice, but Remains After Notice Expires 11.87
        • b. Expiration of Fixed-Term Lease 11.88
    • I. "Self-Help" by Landlord Not Permitted 11.89
    • J. Disposition of Tenant's Security Deposit 11.90
    • K. Disposition of Personal Property Left at Premises 11.91

12

Sale of Residence

Howard L. Pearlman

  • I. HANDLING RESIDENTIAL TRANSACTIONS
    • A. Customary Use of Nonlawyer Professionals 12.1
    • B. Attorney's Potential Role in Residential Transactions 12.2
  • II. STANDARD FORM RESIDENTIAL PURCHASE AND SALE AGREEMENTS 12.3
    • A. Contract Interpretation 12.4
    • B. Offer, Acceptance, and Counteroffer 12.5
    • C. Selected Provisions of Purchase Agreement 12.6
      • 1. Property Interests Being Conveyed
        • a. Real Property Versus Personal Property 12.7
        • b. The Real Property 12.8
        • c. Fixtures and Personal Property 12.9
      • 2. "As Is" Clauses 12.10
      • 3. Liquidated Damages 12.11
      • 4. Deposit Forfeiture 12.12
      • 5. Arbitration 12.13
      • 6. Attorney Fees and Mediation 12.14
      • 7. Contract Contingencies
        • a. Typical Contingencies in Purchase Agreements 12.15
        • b. Conditions Precedent 12.16
        • c. Contingency Removal 12.17
      • 8. Allocation, Proration, and Disclosure of Transaction Costs 12.18
  • III. SELLER'S DISCLOSURES
    • A. Disclosure of Material Facts Required 12.19
    • B. Common Law Duty of Disclosure
      • 1. When Duty Arises and Result of Breach 12.20
      • 2. Materiality
        • a. Fact Must Affect Property's Value or Desirability to Be Material 12.21
        • b. Physical Property Conditions 12.22
        • c. Other Matters 12.23
      • 3. Scope and Extent of Disclosure 12.24
      • 4. Public Policy Limitations on the Duty to Disclose 12.25
    • C. Statutory Disclosure Requirements
      • 1. Matters Deemed Material in All Residential Transactions 12.26
      • 2. Transfer Disclosures
        • a. Application of Disclosure Statutes; Waiver Prohibited 12.27
        • b. Timing of Transfer Disclosures 12.28
        • c. Scope of Liability 12.29
        • d. Real Estate Transfer Disclosure Statement 12.30
        • e. Local Disclosure and Transfer Requirements
          • (1) Local Option Transfer Disclosure Statement 12.31
          • (2) Residential Building Records Report 12.32
          • (3) "Point of Sale" Ordinances 12.33
        • f. Mello-Roos Act and 1915 Bond Act 12.34
        • g. Supplemental Property Tax Bill 12.35
        • h. Former Federal or State Ordnance Locations 12.36
        • i. Window Security Bars and Safety Release Mechanisms 12.37
        • j. Industrial Use Zone 12.38
        • k. Private Transfer Fees 12.39
      • 3. Natural Hazard Disclosures
        • a. When Disclosure Required and Applicable Standards 12.40
        • b. Natural Hazard Zones 12.41
        • c. Natural Hazard Disclosure Statement 12.42
      • 4. Health and Safety Disclosures
        • a. Lead-Based Paint Disclosure 12.43
        • b. Earthquake Hazards 12.44
        • c. Environmental Hazards
          • (1) Mandatory Disclosure 12.45
          • (2) Voluntary Disclosure 12.46
        • d. Drug Lab Cleanup Order 12.47
        • e. Registered Sex Offenders ("Megan's Law") 12.48
        • f. Smoke Alarms and Carbon Monoxide Devices 12.49
        • g. Water Heater Compliance Statement 12.50
        • h. Structural Pest Control Inspection Report 12.51
      • 5. Common Interest Development Disclosures 12.52
      • 6. New Home Sales Disclosures 12.53
      • 7. Miscellaneous Disclosures
        • a. Death or Illness of Occupant of Property 12.54
        • b. Advisability of Title Insurance 12.55
        • c. FHA/HUD Inspection Disclosure 12.56
        • d. Flood Disaster Insurance Requirements 12.57
        • e. Financing Disclosures 12.58
        • f. Home Energy Rating Program 12.59
        • g. Gas and Hazardous Liquid Transmission Pipelines Disclosure 12.59A
        • h. Water-Conserving Plumbing Fixtures 12.59B
  • IV. BUYER'S DUE DILIGENCE
    • A. Buyer's Obligation to Act With Reasonable Care 12.60
    • B. Buyer's Duty of Self-Protection 12.61
    • C. Buyer's Duty to Investigate
      • 1. When Duty Arises 12.62
      • 2. Scope of Buyer's Due Diligence
        • a. Buyer Must Determine Scope 12.63
        • b. Items Generally Investigated 12.64
        • c. Additional Investigations in Common Interest Developments 12.65
    • D. Property Inspections
      • 1. Types of Inspections Summarized 12.66
      • 2. Pest Inspection 12.67
      • 3. Home Inspection
        • a. Nature of Inspection 12.68
        • b. Home Inspectors' Qualifications and Duties 12.69
        • c. Prohibited Practices 12.70
  • V. TITLE AND VESTING
    • A. Significance of Title Issues 12.71
    • B. Condition of Title
      • 1. Necessity of Marketable Title 12.72
      • 2. Recorded Interests in the Property
        • a. Preliminary Report 12.73
        • b. Basic Title Review 12.74
      • 3. Unrecorded Interests in Property 12.75
      • 4. Residential Title Insurance Policies 12.76
    • C. Vesting of Title
      • 1. Options for Holding Title 12.77
        • a. Joint Tenancy 12.78
        • b. Tenancy in Common 12.79
        • c. Community Property 12.80
        • d. Community Property With Right of Survivorship 12.81
      • 2. Title Forms Available to Registered Domestic Partners 12.82
  • VI. TAX CONSIDERATIONS
    • A. Real Estate Transactions Involve Multiple Taxing Authorities 12.83
    • B. State and Federal Withholding Taxes 12.84
    • C. Transfer Tax 12.85
    • D. Property Tax
      • 1. Change of Ownership Reassessment 12.86
      • 2. Exempt Transfers 12.87
    • E. Capital Gains Tax 12.88
  • VII. FAIR HOUSING AND ANTIDISCRIMINATION LAWS
    • A. Need for Consideration of Multiple Statutory Schemes 12.89
    • B. Federal Law 12.90
    • C. State Law 12.91
    • D. Treatment of Senior Citizen Housing
      • 1. Interplay of Public Policies 12.92
      • 2. Federal Exemption 12.93
      • 3. State Exemptions 12.94
    • E. Other State and Local Antidiscrimination Laws 12.95
  • VIII. SALE OF DISTRESSED PROPERTY
    • A. Identifying Mechanisms for Sale of Distressed Property 12.96
    • B. Deeds in Lieu of Foreclosure 12.97
    • C. Short Sales
      • 1. Short Sale Described 12.98
      • 2. Antideficiency Protection in Short Sales
        • a. Background 12.99
        • b. Antideficiency Protection Under CCP §§580b and 580e 12.100
        • c. Junior Lienholders' Consent Required 12.101
      • 3. Standard Forms Used; Disclosure Requirements Apply 12.102
      • 4. Lender's Evaluation and Requirements
        • a. Agreement to Short Sale Is Lender's Business Decision 12.103
        • b. Short-Pay Demand Statement [Deleted] 12.104
        • c. Home Affordable Foreclosure Alternatives (HAFA) Program 12.105
      • 5. Tax Considerations 12.106
    • D. Home Equity Sales Contracts 12.107
    • E. Lender-Owned (REO) Sales
      • 1. REO Sale Described 12.108
      • 2. Disclosure Requirements 12.109
      • 3. Buyer's Choice of Escrow and Title Insurance Services 12.110

13

Basic Personal Bankruptcy Law

Michael T. O'Halloran

  • I. BANKRUPTCY RELIEF AND CASE EVALUATION
    • A. Nature of Bankruptcy Relief
      • 1. Types of Bankruptcy Relief
        • a. Two Types of Relief Under Bankruptcy Code 13.1
        • b. Differentiating Chapter 7 and Chapter 13 Cases
          • (1) Chapter 7 Cases 13.2
          • (2) Chapter 13 Cases 13.3
    • B. Evaluating Appropriate Remedies for Client
      • 1. Representing Clients 13.4
      • 2. Ascertaining Client's Needs 13.5
      • 3. Alternatives to Bankruptcy 13.6
      • 4. Disadvantages and Limitations of Bankruptcy 13.7
      • 5. Selecting Exempt Property 13.8
    • C. Debtor's Attorney as a "Debt Relief Agency" 13.9
    • D. Fee Agreements With Debtor-Clients 13.10
  • II. BANKRUPTCY TERMINOLOGY, SOURCES OF GOVERNING LAW, AND PROCEDURE
    • A. Terminology 13.11
    • B. Sources of Bankruptcy Law and Procedure
      • 1. Bankruptcy Code 13.12
      • 2. Federal Bankruptcy Rules 13.13
      • 3. Interplay of Federal and State Law 13.14
    • C. National and Local Bankruptcy Court Forms 13.15
    • D. Electronic Case Filing 13.16
    • E. Bankruptcy Courts and Their Districts 13.17
    • F. Types of Bankruptcy Proceedings
      • 1. Core and Noncore Proceedings 13.18
      • 2. Contested Matters and Adversary Proceedings 13.19
  • III. GENERAL BANKRUPTCY CASE ADMINISTRATION
    • A. Voluntary Versus Involuntary Petitions 13.20
    • B. Property of Bankruptcy Estate; Turnover, Transfer Avoidance, Use, and Abandonment
      • 1. Property Generally Included in the Estate 13.21
      • 2. Property Excluded From the Estate 13.22
      • 3. Turnover of Property Held by Others 13.23
      • 4. Trustee's Powers to Void or Rescind Transfers 13.24
      • 5. Use, Sale, or Lease of Estate Property 13.25
      • 6. Abandonment of Estate Property 13.26
    • C. Automatic Stay
      • 1. Nature of Automatic Stay 13.27
      • 2. Application 13.28
      • 3. Exceptions to the Automatic Stay 13.29
      • 4. Consequences of Stay Violations 13.30
      • 5. Termination of Stay 13.31
      • 6. Relief From Stay 13.32
    • D. Claims
      • 1. Claim Defined 13.33
      • 2. Types of Claims
        • a. Secured Claims 13.34
        • b. Unsecured Claims 13.35
      • 3. Filing Proof of Claim 13.36
      • 4. Deadline for Filing Proof of Claim 13.37
      • 5. Allowance of Claims 13.38
      • 6. Objection to Claim 13.39
    • E. Executory Contracts
      • 1. Treatment of Executory Contracts in Bankruptcy Cases 13.40
      • 2. Definition of Executory Contract 13.41
      • 3. Assumption or Rejection of Executory Contracts 13.42
      • 4. Effect of Assumption or Rejection 13.43
  • IV. REPRESENTING A DEBTOR IN CHAPTER 7
    • A. Purposes of Chapter 7 13.44
    • B. Dischargeable and Nondischargeable Debts 13.45
    • C. Chapter 7 Eligibility; Means Testing
      • 1. Eligibility 13.46
      • 2. Means Test 13.47
    • D. Issues Relevant to the Timing of Filing 13.48
    • E. Preparation of Petition and Other Filings
      • 1. Summary of Items to File 13.49
      • 2. Schedules 13.50
      • 3. Statement of Financial Affairs 13.51
      • 4. Other Information Required 13.52
    • F. Meeting of Creditors Under §341(a) 13.53
    • G. Rule 2004 Examinations 13.54
    • H. Discharge and Reaffirmation of Debts 13.55
    • I. Conversion or Dismissal 13.56
  • V. REPRESENTING A DEBTOR IN CHAPTER 13
    • A. Purpose of Chapter 13 13.57
    • B. Eligibility to File 13.58
    • C. Preparation of Petition and Other Filings 13.59
    • D. Areas of Special Concern in Chapter 13 Cases 13.60
    • E. Chapter 13 Plan
      • 1. Preparation 13.61
      • 2. Initial Payments Under Plan 13.62
      • 3. Meeting of Creditors Under §341(a) 13.63
      • 4. Confirmation 13.64
      • 5. Performance; Motions to Dismiss or Convert Following Nonperformance 13.65
      • 6. Final Plan Payments and Discharge 13.66
      • 7. Exceptions to Discharge 13.67
  • VI. FORMS
    • A. Form: Bankruptcy Interview Worksheet 13.68
    • B. Form: Current Monthly Income Worksheet 13.69

14

Administering Decedents' Small Estates

Virginia Palmer

  • I. SIGNIFICANCE OF SMALL ESTATE ADMINISTRATION 14.1
  • II. NONPROBATE PROPERTY TRANSFERS IN GENERAL
    • A. Nonprobate Transfers by Beneficiary Designation, Contract, Statute, or Other Operation of Law 14.2
    • B. Property Passing to Surviving Spouse or Registered Domestic Partner Without Administration
      • 1. Survivor's Rights Under Prob C §§13500–13660 14.3
      • 2. Optional Election of Administration 14.4
      • 3. Right to Dispose of Community and Quasi-Community Property
        • a. Real Property 14.5
        • b. Securities Registered Solely in Name of Surviving Spouse or Registered Domestic Partner 14.6
      • 4. Collection of Decedent's Earnings by Affidavit or Declaration
        • a. Right to Collect Earnings 14.7
        • b. Presenting Affidavit or Declaration 14.8
        • c. Liability Issues 14.9
        • d. Form: Declaration Under Prob C §§13600–13606 to Collect Compensation Owed to Deceased Spouse or Registered Domestic Partner 14.10
    • C. Determining and Confirming by Court Order Property Passing to Surviving Spouse or Registered Domestic Partner
      • 1. Rationale for Obtaining Court Order 14.11
      • 2. Petition for Order 14.12
      • 3. Form: Spousal or Domestic Partner Property Petition (Judicial Council Form DE-221) 14.13
      • 4. Notice of Hearing on Petition 14.14
      • 5. When Inventory and Appraisal Required 14.15
      • 6. Order 14.16
      • 7. Form: Spousal or Domestic Partner Property Order (Judicial Council Form DE-226) 14.17
      • 8. Attorney Fees 14.18
      • 9. Liability Issues 14.19
    • D. Setting Aside Small Estates to Surviving Spouse, Registered Domestic Partner, or Minor Children
      • 1. Authority for Set-Aside 14.20
      • 2. Determining Net Value of Estate 14.21
      • 3. Petition for Set-Aside 14.22
      • 4. Form: Petition to Set Aside and Assign Estate 14.23
      • 5. Inventory and Appraisal 14.24
      • 6. Notice of Hearing 14.25
      • 7. Order to Set Aside Estate 14.26
      • 8. Form: Order Setting Aside Estate and Assigning Estate 14.27
      • 9. Attorney Fees 14.28
      • 10. Liability Issues 14.29
  • III. SMALL ESTATE SUMMARY PROCEDURES
    • A. Nature and Use of Summary Procedures 14.30
    • B. Collecting Personal Property by Affidavit or Declaration When Estate's Aggregate Value Does Not Exceed $150,000
      • 1. Authority for Transfer by Affidavit or Declaration 14.31
      • 2. Determining Value of Estate 14.32
      • 3. Affidavit or Declaration
        • a. Preparing and Presenting Affidavit or Declaration 14.33
        • b. Supporting Documents 14.34
        • c. Form: Declaration Under Probate Code §§13100–13116 14.35
      • 4. Completing Transfer 14.36
      • 5. Liability Issues 14.37
    • C. Transferring Real Property by Affidavit When Property's Aggregate Value Does Not Exceed $50,000
      • 1. Authority and Use of Affidavit Procedure 14.38
      • 2. Preparing Affidavit
        • a. Use of Judicial Council Form 14.39
        • b. Required Attachments 14.40
        • c. Form: Affidavit re Real Property of Small Value ($50,000 or Less) (Judicial Council Form DE-305) 14.41
      • 3. Filing Affidavit, Obtaining Certified Copy, and Giving Notice 14.42
      • 4. Recording Affidavit and Submitting PCOR to Assessor 14.43
      • 5. Liability Issues 14.44
    • D. Transferring Real Property by Petition for Court Order When Estate's Aggregate Value Does Not Exceed $150,000
      • 1. Use of Petition Procedure 14.45
      • 2. Preparing Petition and Attachments
        • a. Use of Judicial Council Form 14.46
        • b. Required Attachments
          • (1) Inventory and Appraisal 14.47
          • (2) Other Supporting Documents 14.48
        • c. Form: Petition to Determine Succession to Real Property (Estates of $150,000 or Less) (Judicial Council Form DE-310) 14.49
      • 3. Filing Petition 14.50
      • 4. Notice, Hearing, and Order
        • a. Notice of and Attendance at Hearing 14.51
        • b. Objections to Petition at Hearing; Order 14.52
        • c. Recording Order and Submitting PCOR to Assessor 14.53
        • d. Form: Order Determining Succession to Real Property (Estates of $150,000 or Less) (Judicial Council Form DE-315) 14.54
      • 5. Liability Issues 14.55
      • 6. Attorney Fees 14.56
  • IV. PROBATING AN ESTATE
    • A. Functions of Probate Administration 14.57
    • B. Beginning Probate Proceedings
      • 1. Persons Who May Initiate Probate Proceedings 14.58
      • 2. Preparing Petition for Probate 14.59
      • 3. Filing Petition and Setting Hearing 14.60
      • 4. Preparing Notice of Petition to Administer Estate 14.61
      • 5. Order for Probate and Letters of Administration or Testamentary 14.62
      • 6. Obtaining Probate Bond 14.63
    • C. Handling Estate After Appointment of Personal Representative
      • 1. Marshalling Estate Assets 14.64
      • 2. Filing Inventory and Appraisal of Estate Assets 14.65
      • 3. Exercising Independent Authority Under IAEA 14.66
      • 4. Paying Debts, Taxes, and Estate Liabilities
        • a. Creditors' Claims
          • (1) Importance of Handling Creditors' Claims 14.67
          • (2) Ascertaining Creditors 14.68
          • (3) Giving Notice of Administration to Creditors 14.69
          • (4) Completing Allowance or Rejection of Creditor's Claim Form 14.70
        • b. Taxes 14.71
    • D. Petitioning for Preliminary Distribution
      • 1. When Preliminary Distribution Necessary and How Made 14.72
      • 2. Petition for Preliminary Distribution and Notice Requirements
        • a. Importance of Local Court Rules 14.73
        • b. Notice of Petition Under Prob C §11620 14.74
        • c. Notice of Petition Under Prob C §11623 14.75
    • E. Closing the Estate
      • 1. Role of Personal Representative 14.76
      • 2. Petition for Final Distribution; Compensation for Services 14.77
      • 3. Transferring Assets and Discharge 14.78
  • V. IMPORTANT TERMS USED IN ESTATE ADMINISTRATION 14.79

15

Basic Estate Planning and Drafting

Judith Y. Tang

  • I. OVERALL CONSIDERATIONS IN ESTATE PLANNING
    • A. Key Goals of Estate Planning 15.1
    • B. Ethical Issues in Estate Planning 15.2
    • C. Tax Issues in Estate Planning 15.3
  • II. ESTATE PLANNING VEHICLES FOR MANAGING AND DISTRIBUTING ASSETS
    • A. Wills
      • 1. Function of Wills; Basic Requirements 15.4
      • 2. Advantages of Using Wills 15.5
      • 3. Disadvantages of Using Wills 15.6
      • 4. California Statutory Will
        • a. Authority to Use Statutory Will 15.7
        • b. Limitations of Statutory Will 15.8
        • c. Execution of Statutory Will 15.9
        • d. Effect of Marital or Domestic Partnership Dissolution on Statutory Will 15.10
      • 5. Uniform International Will 15.11
      • 6. Testamentary Trusts Created by Will
        • a. Nature, Uses, and Elements of Testamentary Trusts
          • (1) Nature and Uses of Testamentary Trusts 15.12
          • (2) Elements of Testamentary Trust 15.13
        • b. Trust Intent 15.14
        • c. Trust Property 15.15
        • d. Trust Beneficiary 15.16
        • e. Trust Purposes
          • (1) Purpose Cannot Be Illegal or Against Public Policy 15.17
          • (2) Purpose Cannot Be Too Indefinite or General 15.18
        • f. Single Versus Multiple Trusts 15.19
      • 7. Pourover Wills
        • a. Nature of Pourover Wills 15.20
        • b. Purposes of Pourover Wills 15.21
        • c. Uniform Testamentary Additions to Trusts Act 15.22
        • d. Authorizing Acceptance of Additions to Trust 15.23
        • e. Pourover Default Trust Provisions 15.24
    • B. Inter Vivos Trusts
      • 1. General Description and Distinguishing Inter Vivos From Testamentary Trusts 15.25
      • 2. Inter Vivos Revocable Trusts
        • a. Dual Functions of Inter Vivos Revocable Trusts 15.26
        • b. Advantages and Disadvantages
          • (1) Advantages 15.27
          • (2) Disadvantages 15.28
        • c. Drafting Inter Vivos Revocable Trusts
          • (1) No Single Type of Trust for All Estates 15.29
          • (2) Drafting to Meet Trust Objectives
            • (a) Drafting Trust to Enable Understanding by Intended Audience 15.30
            • (b) Flexibility and Safety 15.31
      • 3. Marital Trusts: The Marital Deduction 15.32
    • C. Nomination of Estate Conservator 15.33
    • D. Accounts Transferred on Death
      • 1. Types of Accounts
        • a. Pay-on-Death Accounts 15.34
        • b. Totten Trust Accounts 15.35
        • c. Registered Securities and Brokerage Accounts 15.36
      • 2. Planning Issues 15.37
    • E. Assets With Designated Beneficiaries
      • 1. Types of Assets 15.38
      • 2. Retirement Plans
        • a. Plans Tied to Income Tax Deferrals 15.39
        • b. Spouse as Beneficiary 15.40
        • c. Nonspouse Beneficiaries 15.41
        • d. Children as Beneficiaries 15.42
        • e. Trust as Beneficiary 15.43
      • 3. Roth IRAs 15.44
      • 4. Life Insurance 15.45
    • F. Joint Tenancy
      • 1. Nature of Joint Tenancy and Exception to Probate Avoidance 15.46
      • 2. Creating and Severing Joint Tenancy 15.47
      • 3. Planning Issues
        • a. Disadvantages of Joint Tenancy 15.48
        • b. When Severance May Be Advantageous
          • (1) Distribution to Other Than Joint Tenant Desired 15.49
          • (2) For Married Couples 15.50
    • G. Community Property With Right of Survivorship 15.51
    • H. Planning for Tenancy-in-Common and Community Property
      • 1. Tenancy-in-Common Property 15.52
      • 2. Community Property 15.53
  • III. IMPLEMENTING THE ESTATE PLAN
    • A. Consideration of Documents Involved 15.54
    • B. Real Property Deeds 15.55
  • IV. PLANNING FOR INCAPACITY WITH POWERS OF ATTORNEY, HEALTH CARE DIRECTIVES, AND OTHER DOCUMENTS
    • A. Commonly Used Powers of Attorney and Health Care Directives (AHCDs) 15.56
    • B. Advantages and Disadvantages of Durable Power of Attorney for Financial Management (DPOA)
      • 1. DPOA Advantages 15.57
      • 2. DPOA Disadvantages 15.58
    • C. Advantages and Disadvantages of AHCD and PAHC
      • 1. AHCD and PAHC Advantages 15.59
      • 2. AHCD and PAHC Disadvantages 15.60
    • D. Planning Durable Power of Attorney for Financial Management (DPOA)
      • 1. Durable Versus Nondurable Powers of Attorney 15.61
      • 2. General Versus Limited Powers of Attorney
        • a. General Power of Attorney 15.62
        • b. Limited (or Special) Power of Attorney 15.63
      • 3. Immediately Effective Versus Springing DPOA
        • a. Immediately Effective DPOA 15.64
        • b. Springing (Contingent, Standby, or Conditional) DPOA 15.65
      • 4. Statutory, Printed, and Attorney-Drafted DPOAs 15.66
      • 5. Execution of DPOA Generally 15.67
      • 6. Eligibility of Principal to Execute DPOA
        • a. Individuals 15.68
        • b. Fiduciaries 15.69
        • c. Agent's Delegation to Secondary Agents 15.70
      • 7. Agent
        • a. Eligibility to Serve as Agent 15.71
        • b. Selection of Agent 15.72
        • c. Agent's Duty and Standard of Care; Authority to Act 15.73
      • 8. Termination of DPOA
        • a. Revocation by Principal 15.74
        • b. Expiration of Agent's Term or Extinction of Subject of Instrument 15.75
        • c. Agent's Death 15.76
        • d. Agent's Resignation 15.77
        • e. Agent's Incapacity to Act 15.78
        • f. Dissolution or Annulment; Effect of Legal Separation or Termination of Domestic Partnership 15.79
        • g. Principal's Incapacity to Contract Terminates Nondurable Power of Attorney 15.80
        • h. Principal's Restoration to Capacity and Springing DPOA 15.81
        • i. Principal's Death 15.82
        • j. Revocation by Court Order 15.83
      • 9. Record Keeping for DPOAs
        • a. Availability of Documents 15.84
        • b. Use of Photocopies 15.85
        • c. Recording of DPOA 15.86
        • d. Multistate Considerations 15.87
    • E. Alternatives to DPOA 15.88
    • F. Additional Considerations in Planning for AHCDs and Related PAHCs
      • 1. Complying With Health Care Decisions Law 15.89
      • 2. Agent Under PAHC
        • a. Authority to Make Health Care Decisions
          • (1) Scope of Authority 15.90
          • (2) Health Care Decisions by Someone Other Than Agent 15.91
        • b. Right to Receive Information 15.92
    • G. Alternative Devices to AHCD
      • 1. Conservatorship of the Person 15.93
      • 2. Court-Ordered Health Care Decisions for Adult Without Conservator 15.94
      • 3. Ability of Spouse to Make Health Care Decisions 15.95
    • H. Do Not Resuscitate Orders (DNRs)
      • 1. Nature of DNRs 15.96
      • 2. DNR Order in Home Care Setting 15.97
      • 3. DNR Order in Skilled Nursing Facility (SNF) 15.98
      • 4. DNR Order in Assisted Living or Residential Care Facility 15.99
    • I. Physician Orders for Life Sustaining Treatment (POLST) 15.100
    • J. Anatomical Gifts (Powers)
      • 1. Description 15.101
      • 2. Agent's Authorization to Make Anatomical Gift 15.102
      • 3. Making Anatomical Gift 15.103
      • 4. Revoking or Amending Anatomical Gift
        • a. By Donor or by Agent Under Power of Attorney 15.104
        • b. By Other Third Parties 15.105
      • 5. Written Refusal to Make Anatomical Gift 15.106
    • K. Health Care Surrogates 15.107
  • V. FORMS
    • A. Form: California Statutory Will 15.108
    • B. Form: Uniform Statutory Form Power of Attorney 15.109

16

Debt Collection

  • I. INITIAL CONSIDERATIONS
    • A. Assessing the Case
      • 1. Overview of Issues Involved in Debt Collection Cases 16.1
      • 2. Identifying the Client and Determining Client's Motives
        • a. Identifying Client 16.2
        • b. Determining Client's Motives for Debt Collection 16.3
      • 3. Identifying the Debtor 16.4
      • 4. Viability of Claim Against Debtor
        • a. Overall Age of Claim 16.5
        • b. Accounting for Statute of Limitations 16.6
        • c. Status of Claim 16.7
        • d. Solvency of Debtor 16.8
        • e. Cost of Obtaining and Collecting Judgment 16.9
    • B. Complying With Laws Regulating Debt Collection
      • 1. Overall Governing Law
        • a. Both California and Federal Law Must Be Considered 16.10
        • b. California Law 16.11
        • c. Federal Law 16.12
      • 2. Regulation of Specific Debt Collection Practices
        • a. Restricted and Prohibited Communications With Debtor 16.13
        • b. Prohibited Communications With Third Parties About Debt 16.14
        • c. Permitted Communications With Third Parties About Debt 16.15
        • d. Required Notices From Debt Collector When Validating Debt 16.16
  • II. INITIATING DEMAND FOR PAYMENT AND EVALUATING DEBTOR'S RESPONSE
    • A. Demand for Payment 16.17
    • B. Evaluating Debtor's Response to Demand Letter 16.18
  • III. COMMENCING A DEBT COLLECTION ACTION
    • A. Court Jurisdiction and Venue
      • 1. Jurisdiction 16.19
      • 2. Venue 16.20
    • B. Drafting Complaint
      • 1. Form of Complaint 16.21
      • 2. Specifying Causes of Action in Complaint
        • a. Common Counts 16.22
        • b. Contract Actions
          • (1) Essential Elements to Plead 16.23
          • (2) Written Contracts 16.24
          • (3) Oral Contracts 16.25
          • (4) Performance 16.26
          • (5) Excuse or Prevention 16.27
          • (6) Waiver 16.28
          • (7) Breach 16.29
    • C. Pretrial Discovery 16.30
    • D. Special Prejudgment Remedies
      • 1. Attachment 16.31
      • 2. Writ of Possession 16.32
  • IV. OBTAINING JUDGMENT IN DEBT COLLECTION CASE; ENFORCEABILITY
    • A. Judgment Without Trial
      • 1. Default Judgments 16.33
      • 2. Other Judgments Without Trial
        • a. Judgment by Consent or Stipulation 16.34
        • b. Acceptance of Offer to Compromise Under CCP §998 16.35
        • c. Confession of Judgment 16.36
        • d. Judgment on Pleadings 16.37
        • e. Summary Judgment and Summary Adjudication
          • (1) Summary Judgment 16.38
          • (2) Summary Adjudication 16.39
    • B. Judgment After Trial
      • 1. Trial by Court or Jury 16.40
      • 2. Statement of Decision 16.41
      • 3. Drafting Judgment
        • a. Key Considerations in Drafting Judgment 16.42
        • b. Costs
          • (1) Statutory Authority 16.43
          • (2) Selective Cost Provisions 16.44
          • (3) Procedure for Recovery 16.45
        • c. Attorney Fees 16.46
        • d. Interest 16.47
    • C. Entry of Judgment 16.48
    • D. Period of Judgment's Enforceability; Renewal
      • 1. Period of Enforceability 16.49
      • 2. Renewal of Judgment 16.50
  • V. ENFORCING JUDGMENT
    • A. Judgment Liens on Real and Personal Property
      • 1. Judgment Lien on Real Property 16.51
      • 2. Judgment Lien on Personal Property 16.52
      • 3. Extinguishment of Enforcement Liens; Exceptions 16.53
    • B. Writ of Execution
      • 1. Statutory Authority 16.54
      • 2. Issuance; Limitation 16.55
      • 3. Affidavit of Identity 16.56
      • 4. Executing Writ 16.57
      • 5. Execution Lien 16.58
      • 6. What Property May Be Levied On 16.59
      • 7. Levying Officer 16.60
      • 8. Specific Types of Property Not Subject to Levy 16.61
      • 9. Exemptions 16.62
      • 10. Release of Custody of Property; Extinguishment of Lien 16.63
      • 11. Appointment of Receiver; Sale of Perishable Property 16.64
      • 12. Levy on Third Party
        • a. Third Party's Duties and Liabilities After Levy 16.65
        • b. Third Party's Response 16.66
      • 13. Secured Party 16.67
      • 14. Sale of Personal Property 16.68
      • 15. Levy on Real Property; Sale
        • a. Method of Levy 16.69
        • b. Sale
          • (1) Statutory Authority; Notice of Sale; Timing 16.70
          • (2) Sale Procedure 16.71
          • (3) No Right to Redemption; Exceptions 16.72
      • 16. Return of Writ of Execution; Time Limitations 16.73
      • 17. Debtor's Remedies Against Enforcement by Writ of Execution
        • a. Claim of Exemption 16.74
        • b. Stay of Enforcement 16.75
        • c. Recalling and Quashing Writ of Execution 16.76
        • d. Remedies After Execution Sale
          • (1) Restitution After Reversal of Judgment 16.77
          • (2) Setting Aside Improper Execution Sale; Damages 16.78
        • e. Third Party Claims 16.79
        • f. Exemptions From Levy of Execution
          • (1) Filing Exemption Claim 16.80
          • (2) Property Not Subject to Levy 16.81
          • (3) Bankruptcy 16.82
          • (4) Homesteads 16.83
    • C. Wage Garnishment
      • 1. Statutory Authority; Definitions 16.84
      • 2. Earnings Withholding Orders
        • a. Procedures to Obtain Order and Effect Levy; Creation of Lien
          • (1) Judgment Creditor's Application 16.85
          • (2) Manner of Levy; Papers Served on Employer 16.86
          • (3) Lien Created by Service of Earnings Withholding Order 16.87
        • b. Employer's Duties After Service of Earnings Withholding Order 16.88
        • c. Duration of Withholding Period; Payment to Levying Officer 16.89
        • d. Special Status of Earnings Withholding Orders for Support 16.90
        • e. Special Status of Earnings Withholding Orders for Elder or Dependent Adult Financial Abuse 16.91
        • f. Judgment Creditor's Duty to Give Notice When Judgment Satisfied Before Earnings Withholding Order Terminates 16.92
        • g. Additional Earnings Withholding Order for Recovery of Cost and Interest 16.93
        • h. Earnings Withholding Order for Taxes 16.94
      • 3. Exemption From Wage Garnishment
        • a. General State and Federal Provisions 16.95
        • b. Exempt Earnings; Procedure to Claim Exemption
          • (1) Earnings Necessary to Support Debtor and Family 16.96
          • (2) Exemption Amounts Under Different Types of Withholding Orders
            • (a) "General" Earnings Withholding Order 16.97
            • (b) Earnings Withholding Order for Support 16.98
            • (c) Earnings Withholding Order for Taxes 16.99
        • c. Procedure to Claim Exemption
          • (1) Filing Claim 16.100
          • (2) Opposing Claim 16.101
          • (3) Hearing; Orders 16.102
  • VI. ACKNOWLEDGING SATISFACTION OF JUDGMENT
    • A. Filing Acknowledgment of Satisfaction Form 16.103
    • B. Motion to Compel Filing of Acknowledgment 16.104
    • C. Vacating Satisfaction 16.105

CALIFORNIA BASIC PRACTICE HANDBOOK

(1st Edition)

November 2016

TABLE OF CONTENTS

 

File Name

Book Section

Title

CH01

Chapter 1

Opening a Law Practice and Ethically Representing Clients

01-088

§1.88

General Letter Agreement for Representation on Hourly Basis

01-089

§1.89

Agreement for Representation Based on Contingent Fee

CH02

Chapter 2

Alternative Dispute Resolution

02-070

§2.70

Sample Agreement to Mediate Existing Dispute

02-071

§2.71

Stipulation to Submit to Judicial Arbitration

02-072

§2.72

Sample Contractual Provision to Resolve Disputes by Arbitration

CH03

Chapter 3

Preparing, Filing, and Serving Complaints and Answers

03-109

§3.109

Sample Verified Complaint

03-110

§3.110

Sample Verified Answer

CH04

Chapter 4

Pretrial Discovery: A Step-by-Step Approach

04-083

§4.83

Response to Interrogatories; Verification

04-085

§4.85

Sample Response to Requests for Admission

CH05

Chapter 5

Law and Motion Practice

05-104

§5.104

Checklist: Moving Party’s Procedures for Motions and Hearings

05-105

§5.105

Checklist: Opposing Party’s Procedure to Respond to Noticed Motion

05-106

§5.106

Notice of Motion

05-107

§5.107

Declaration Supporting Motion

05-108

§5.108

Declaration Opposing Motion

05-109

§5.109

Notice of Ruling on Motion

05-110

§5.110

Proposed Order

05-111

§5.111

Order After Hearing

CH06

Chapter 6

Basic Criminal Practice

06-040

§6.40

Checklist: Common Pretrial Motions

CH07

Chapter 7

Personal Injury

07-120

§7.120

Checklist: General Client Interview for Personal Injury Case

07-121

§7.121

Sample Client Authorization to Release Medical Information or Police Report

07-122

§7.122

Sample Demand Letter-General Form

CH08

Chapter 8

Uncontested Marital Dissolutions

08-076

§8.76

Checklist: Documents to Obtain

CH09

Chapter 9

Employment Cases

09-053

§9.53

Sample Complaint for Damages for Disability Discrimination Based on Medical Condition

09-054

§9.54

Sample Complaint for Damages for Sexual Harassment

CH10

Chapter 10

Workers’ Compensation Cases

10-144

§10.144

Checklist: Information Necessary To Pursue Workers’ Compensation Claim

CH13

Chapter 13

Basic Personal Bankruptcy Law

13-068

§13.68

Bankruptcy Interview Worksheet

13-069

§13.69

Current Monthly Income Worksheet

CH14

Chapter 14

Administering Decedents’ Small Estates

14-010

§14.10

Declaration Under Prob C §§13600–13606 to Collect Compensation Owed to Deceased Spouse or Registered Domestic Partner

14-023

§14.23

Petition to Set Aside and Assign Estate

14-027

§14.27

Order Setting Aside Estate and Assigning Estate

14-035

§14.35

Declaration Under Probate Code §§13100–13116

CH15

Chapter 15

Basic Estate Planning and Drafting

15-109

§15.109

Uniform Statutory Form Power of Attorney

 

Selected Developments

November 2016 Update

All cases, statutes, rules, and regulations have been updated to reflect relevant developments that occurred since last publication. Significant developments in each chapter are listed below. Note that the Judicial Council and California Legislature have been updating the rules and codes to integrate electronic service and filing, as well as use of other technologies, into basic procedures. All of those changes are noted where relevant in the text. See, e.g., §§2.34, 4.22.

Opening a Law Office. The chapter has been updated to reflect changes in technology and practical advice on integrating it into an effective and ethical practice. See §§1.25, 1.27, 1.43, 1.45. See §1.87 for updated State Bar Rules on fee arbitration. Note that a draft revision of the California Rules of Professional Conduct is available for review on the State Bar's website at http://ethics.calbar.ca.gov/Committees/RulesCommission2014/ProposedRules.aspx.

Alternative Dispute Resolution. The California Supreme Court held that both procedural and substantive unconscionability must exist before a contract or arbitration provision will be found unconscionable. See discussion of Sanchez v Valencia Holding Co. (2015) 61 C4th 899 in §2.53. The Rules of Court around the use of documentary evidence in arbitrations have been updated to provide for electronic delivery of documentary evidence; see §2.34. See §2.47 for updated ethics standards for neutrals involved in arbitration.

Preparing, Filing, and Serving Complaints and Answers. When a case has been reclassified from limited to unlimited (or the reverse), the caption must reflect the reclassification. See §3.23. Judicial Council forms for fee waivers are available online and may be filled out online; see §3.47.

Pretrial Discovery. The discussion of discovery motions to compel in chapter 4 has been completely rewritten, with new practice tips added. See §§4.73A–4.81. Deposition notices must include a statement disclosing contracts between a noticing party (or party financing the litigation) and the deposition officer; see §4.18B.

Law and Motion Practice. California Rules of Court 3.670(h) has been amended to add a provision to allow a party to appear by telephone without the notice required, on a showing of good cause or unforeseen circumstances. See §5.81 for discussion of the change. Renewed application for reconsideration of a motion for relief from default must comply with CCP §1008 requirements. See Even Zohar Constr. & Remodeling, Inc. v Bellaire Townhouses, LLC (2015) 61 C4th 830, cited in §5.96 and discussed in §5.102. California Rules of Ct 2.251 on electronic service has been amended to provide for electronic service by or on a court. See §5.92 for discussion.

Personal Injury. In the area of product liability, there have been a few recent cases on the topic of whether a manufacturer has a duty to warn when its product's use as intended in conjunction with another product results in a substantial increase of danger to the users. See Sherman v Hennessy (2015) 237 CA4th 1133, and other recent cases discussed in §7.108. A handful of recent cases have challenged the MICRA cap on noneconomic damages but to no avail. See §7.119 for discussion of Chan v Curran (2015) 237 CA4th 601 and other cases.

Uncontested Marital Dissolution. Note that a preliminary declaration of disclosure is not required when a petitioner serves a dissolution petition by publication and the respondent defaults. See discussion of Fam C §2104(f) in §8.16. Effective January 1, 2017, new Fam C §70 redefines date of separation and abrogates the decisions in Marriage of Davis (2015) 61 C4th 846 and Marriage of Norviel (2002) 102 CA4th 1152. See Legislation Alert in §8.26.

Employment. For a recent district court case analyzing whether someone is an employee or an independent contractor, see §9.3. Both federal and California law have been amended to provide for equal pay for substantially similar work (as opposed to €œequal€ work). See discussion in §9.17. See Alberts v Aurora Behavioral Health Care (2016) 241 CA4th 388, cited in §9.37A, analyzing employer policies and practices on rest and meal breaks.

Worker's Compensation. The California Supreme Court has granted review in King v CompPartners, Inc. (review granted April 13, 2016, S232197; superseded opinion at 243 CA4th 685), which held that a physician who provides utilization review (UR) services in a worker's compensation claim may owe the injured worker a duty of care that extends beyond the exclusivity of the Workers' Compensation Act. See §10.3 for a note discussing the case. For a recent case analyzing whether a slip and fall resulting in significant psychiatric disability was caused by €œsudden and extraordinary€ employment conditions, see §10.42. California legislation taking effect July 1, 2017, requires a Medical Treatment Utilization Schedule (MTUS) to include a drug formulary. See discussion of Lab C §5307.27(b)–(c) in §10.55. Independent Medical Review (IMR) time limits continue to be the subject of litigation. See Stevens v WCAB (2015) 241 CA4th 1074, and §10.96 for discussion.

Residential Landlord-Tenant Issues. A tenancy can be created by occupancy with consent; see Mosser Cos. v. SF Rent Stabilization & Arbitration Board (2015) 233 CA4th 505, discussed in §11.2. Limitations on recovery of attorney fees may be based on language in the rental agreement (511 S. Park View, Inc. v Tsantis (2015) 240 CA4th Supp 44) or by statute (Dorsey v Superior Court (2015) 241 CA4th 583). See §11.7 for discussion. A landlord who intends to apply pesticide to its property, whether with or without a licensed pesticide control operator, must provide notice to its tenants. See discussion of CC §1940.8.5 in §11.28. See §11.32 for new discussions of a tenant's right to use a clothesline, grow fruits and vegetables in containers, and install an electric vehicle charging station. The Unruh Civil Rights Act now provides protection against discrimination on the basis of citizenship, primary language, and immigration status. See §§11.37, 11.82 for discussion of CC §51(b).

Sale of Residence. The amount of taxes a buyer must withhold from a foreign seller's proceeds on the sale of a piece of real property has increased to 15 percent if the sale price exceeds $1 million; see §12.84. The Unruh Civil Rights Act now provides protection against discrimination on the basis of citizenship, primary language, and immigration status. See §12.91 for discussion of CC §51(b). Antideficiency protection under CCP §580b applies to short sales. See §12.100, discussing the recent case of Coker v JP Morgan Chase Bank, NA (2016) 62 C4th 667.

Personal Bankruptcy. Bankruptcy forms were substantially revised and renumbered in December 2015. All citations to them throughout the text have been updated.

Estate Planning and Drafting. Reporting requirements regarding the basis of property acquired from a decedent have been revised. See Note in §15.50 for discussion.

Debt Collection. The maximum amount of disposable earnings subject to a general earnings withholding order has been revised. See §16.97.

About the Authors

Hon. Jeremy D. Fogel, who received his B.A. from Stanford University in 1971 and his J.D. from Harvard Law School in 1974, is the director of the Federal Judicial Center in Washington, D.C., the education and research agency of the federal courts. For over a decade before his 2011 appointment as director, Judge Fogel was a district judge of the United States District Court for the Northern District of California. Before his appointment to the federal bench, he served as a judge of the Santa Clara County Municipal and Superior Courts (1981–1998).

Susan J. Harriman, who received her B.A. from Brown University in 1976 and her J.D., magna cum laude, from the University of California, Hastings College of the Law in 1983, is a partner with Keker & Van Nest LLP in San Francisco and handles a wide range of business litigation. Since joining that firm in 1985, she has tried state and federal cases involving legal malpractice defense, commercial disputes, real estate, and wrongful termination. She also has arbitrated cases before the American Arbitration Association and the Financial Industry Regulatory Authority. Ms. Harriman has been honored with numerous awards for her trial skills, including being repeatedly named to Best Lawyers.

R. Camille King, who earned her undergraduate degree from the University of Georgia in 1995 and her J.D. from the University of California, Hastings College of the Law in 2001, began practicing law in Alameda County in 2001 and currently is a partner with the Law and Mediation Offices of Lovko & King in Berkeley, focusing on family law and mediation matters. She is a member of the State Bar Family Law Section and is an original contributing author of California Client Communications Manual: Sample Letters and Forms (Cal CEB).

Laura L. Lane, who earned her B.A. from Hunter College in 1988, her M.A. from San Francisco State University in 1992, and her J.D. from the University of California, Berkeley, School of Law in 1996, joined the East Bay Community Law Center in Berkeley as a supervising attorney in 1997 and has directed its housing practice since 2003. She has taught housing law and policy at the University of California, Berkeley, School of Law and at Golden Gate University School of Law. As a past recipient of an Echoing Green public interest fellowship, she founded and directed a project to provide free legal services to persons living with HIV/AIDS in Contra Costa County and has been recognized for her contributions to fair housing in the East Bay.

Lawrence E. Leone, who earned his undergraduate degree from the University of California, Los Angeles, in 1969 and his J.D. from Loyola University of Los Angeles School of Law in 1977, is a Certified Family Law Specialist who maintains a solo law practice in Los Angeles. A former partner in the Los Angeles law firm of Trope and Trope LLP, Mr. Leone is a former chair of the Family Law Section of the Los Angeles County Bar Association and currently is a Trustee as well as a member of the Los Angeles County Bar Association Foundation. Mr. Leone also serves as a Personnel Commissioner for Santa Monica College. He was appointed as a member of the Elkins Task Force. He has written extensively for and chaired the annual Los Angeles County Bar Association Family Law Symposium, edited the Los Angeles County Bar Association Monthly for many years, and is an ongoing editorial consultant for the California Family Law Monthly. Mr. Leone has also served as a judge pro tem in Los Angeles and Santa Monica as well as a family law mediator. He is a contributing author of the following publications: California Child Custody Litigation and Practice (Cal CEB), Dividing Pensions and Other Employee Benefits in California Divorces (Cal CEB), Family Law Financial Discovery (Cal CEB), and California Client Communications Manual: Sample Letters and Forms (Cal CEB).

Micha Star Liberty, who earned her undergraduate degree from the University of California, Los Angeles, in 1995 and her J.D. from the University of California, Hastings College of the Law in 2001, maintains a law practice in Oakland, specializing in litigating serious injury, civil rights, sexual abuse, and employment matters in both individual and class actions. She also is a certified mediator. A frequent lecturer and published author, Ms. Liberty focuses much of her public speaking on trial practice, discovery techniques, the importance of mentoring, and the best practices for opening a law office and for law office management. She served on the California State Bar's Board of Governors from 2008 to 2010 and served as the Board of Governors representative of the California Young Lawyers Association. She currently serves on numerous other boards of professional associations and is a contributing author of California Client Communications Manual: Sample Letters and Forms (Cal CEB).

Justin M. Litvack, who earned his undergraduate degree from the University of Washington and his J.D. from Santa Clara University School of Law, is an associate attorney with Boxer & Gerson, LLP, in Oakland, specializing in workers' compensation cases, representing injured workers. Mr. Litvack helps clients navigate the workers' compensation system. He is a member of the California Applicants' Attorneys Association.

Rae Lovko, who earned her undergraduate degree from Old Dominion University in 1989, her M.A. from the College of William and Mary in 1993, and her J.D. from Golden Gate University School of Law in 2000, where she was class valedictorian, is a partner with the Law and Mediation Offices of Lovko & King in Berkeley, handling personal injury, residential landlord-tenant, and employment law matters. As a practitioner for over a decade, Ms. Lovko has become both a skilled trial attorney and an effective negotiator and has represented hundreds of injured workers, consumers, and families. She has published articles in legal journals and worked for fair representation in the court system in both Florida and California.

Teresa A. McQueen, a senior partner at Pedersen McQueen, in Irvine, is dedicated to representing individuals in all areas of employment litigation, as well as providing general counsel services to small and medium-size companies. Ms. McQueen is a former Orange County Bar Association board member and a past chair of the California State Bar Solo and Small Firm Section and of the OCBA Solo Practitioner/Small Firm Section. She is a member of California Employment Lawyers Association, the California State Bar Labor and Employment Law Section, and the California State Bar Solo and Small Firm Section. Ms. McQueen is also an author and speaker on employment law, practice management, and water law. She earned her undergraduate degree from the University of Idaho and her J.D. from Chapman University School of Law.

Stephen M. Murphy, who earned his undergraduate degree from College of the Holy Cross in 1977 and his J.D. from the University of San Francisco in 1981, maintains a solo practice in San Francisco, specializing in plaintiffs' employment litigation. Mr. Murphy handles a wide range of employment issues, from wage-and-hour and similar claims to wrongful termination, discrimination, and harassment. He has been honored as a top 100 Northern California Super Lawyer, listed in Best Lawyers, and honored as the "Trial Lawyer of the Year" for 2008 by the San Francisco Trial Lawyers Association. Mr. Murphy has lectured and contributed articles to numerous legal journals and is a contributing author of Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation (2d ed Cal CEB) and Handling a Wrongful Termination Action (Cal CEB Action Guide).

Michael T. O'Halloran, who earned his B.A. degree from the University of California, San Diego, in 1976 and his J.D. from the University of Southern California in 1981, maintains a private law practice in San Diego. His firm specializes in insolvency counseling and all types of bankruptcy representation. He is a Certified Specialist in Consumer and Small Business Bankruptcy (California State Bar certification) as well as a Certified Specialist in Business Bankruptcy and Consumer Bankruptcy (American Board of Certification). He is active in many community and bar association activities, including the San Diego Volunteer Lawyer Program. He received the State Bar President's Pro Bono Service Award in 2014. Mr. O'Halloran is a contributing author of California Domestic Partnerships (Cal CEB).

Virginia Palmer, who received her B.A. from California State University, San Francisco, in 1975 and her J.D. from Golden Gate University School of Law in 1980, is a partner with the firm of Wendel, Rosen, Black & Dean LLP in Oakland. She focuses her practice on estate planning, probate, trust administration, and elder law. She has particular expertise in estate planning for both married and unmarried couples (including domestic partners), premarital and postmarital agreements, representation of individual and professional fiduciaries in the administration of living trusts, and conservatorship. In addition, she serves as a judge pro tem in the Alameda County Superior Court as well as a court-appointed guardian ad litem for children and incapacitated adults. Ms. Palmer is a frequent lecturer on estate planning and other issues for domestic partners and has been listed as a Northern California Super Lawyer. She is a contributing author of California Domestic Partnerships (Cal CEB) and Crossover Issues in Estate Planning and Family Law (Cal CEB).

Howard L. Pearlman, who earned his undergraduate degree from Reed College in 1980 and his J.D. from the University of California, Hastings College of the Law in 1986, has practiced real estate law for 30 years. After 24 years as a shareholder of the San Francisco firm of Bartko, Zankel, Tarrant & Miller, Mr. Pearlman opened a real estate practice in Oakland in 2012. He has litigated, arbitrated, and mediated a wide range of matters involving purchase and sale transactions, commercial leases, construction contracts and defects, common interest developments, broker liability, nondisclosure/fraud claims, and adjoining landowner disputes. He also counsels clients on environmental aspects of real property transactions and has represented clients in environmental litigation and regulatory matters. Mr. Pearlman is an active member of the National Roster of Arbitrators of the American Arbitration Association. He is a contributing author of California Real Property Sales Tansactions (4th ed Cal CEB), and Ground Lease Practice (2d ed Cal CEB).

Dennis A. Popalardo, Jr., who earned his B.A. from Fairfield University in 1989 and his J.D. from Pepperdine University School of Law in 1992, is with the firm of Boxer & Gerson LLP in Oakland. Since becoming an attorney in 1992, he has practiced exclusively in the area of workers' compensation law and is a Certified Specialist in Workers' Compensation Law. Before joining the Boxer & Gerson firm, Mr. Popalardo was a managing partner of a nationwide insurance defense firm. He has been recognized as a Northern California Super Lawyer by San Francisco Magazine.

Shanon K. Quinley, who earned her B.A. from the University of California, Santa Barbara, in 2000 and her J.D. from Southwestern University School of Law in 2004, maintains a solo law practice in Pasadena, with an emphasis on family law. She is an active member of the Family Law Sections of the Los Angeles County Bar Association and the State Bar as well as a member of the Pasadena Bar Association. In addition, Ms. Quinley has been a member of CEB's Family Law Advisory Committee and consulted on the needs of newer attorneys. She is a contributing author of the following publications: Family Law Financial Discovery (Cal CEB), California Child and Spousal Support: Establishing, Modifying, and Enforcing (Cal CEB), and California Client Communications Manual: Sample Letters and Forms (Cal CEB).

Maria E. Schopp, who received her undergraduate degree from the University of California, Berkeley, in 1989 and her J.D. from City University of New York School of Law in 1995, maintains a solo law practice in Walnut Creek, handling both family and criminal law matters. Her practice includes mediation and collaborative negotiation in addition to traditional litigation. She is a past chair of the Family Law Section of the Barristers Club of the Bar Association of San Francisco as well as a former president of the Queen's Bench Bar Association of the San Francisco Bay Area. Ms. Schopp was an original contributing author of California Client Communications Manual: Sample Letters and Forms (Cal CEB).

Judith Y. Tang, who earned her B.S. degree from the University of California, Berkeley, in 1992 and her J.D. from the University of California, Hastings College of the Law in 1995, is a partner with the firm of Wendel, Rosen, Black & Dean LLP in Oakland. She is certified by the State Bar of California Board of Legal Specialization as a Specialist in Estate Planning, Trust, and Probate Law and provides comprehensive estate planning services in those areas. Ms. Tang has translated numerous State Bar publications for the general public into Chinese and has lectured frequently on estate planning issues in both legal forums and before civic groups. She has been included in the Northern California Super Lawyer magazine for the years 2010 through 2015.

Carrie D. Wipplinger, who earned her B.A. from the University of Chicago in 1999 and her J.D. from Golden Gate University School of Law in 2010, is an associate attorney with the firm of Boxer & Gerson LLP in Oakland, with a focus on workers' compensation law. Before joining that firm, Ms. Wipplinger interned for the San Francisco City Attorney's Office (Workers' Compensation Team) and clerked for Bay Area Legal Aid.

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