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Understanding the Family Law Discovery Process

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Discovery In California Family Law Matters

While each party in a family law proceeding is subject to fiduciary duties often times the parties engage in discovery in addition to the Preliminary Declaration of Disclosure and Final Declaration of Disclosure. Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. (Cal Code Civ Proc § 2017.010) See- CODE OF CIVIL PROCEDURE – CCP

Several discovery methods are available and most commonly include a request for Interrogatories, a Request for Production of Documents and a Request for Party Admissions. In a family law matter, the discovery process usually will proceed first with the Preliminary Declaration of Disclosure.

PRELIMINARY DECLARATION OF DISCLOSURE

Each party is required to serve on the opposing party a Preliminary Declaration of Disclosure which includes basic financial information such as: 1) Schedule of Assets and Debts, 2) Income and Expense Declaration 3) Tax Returns for the past two years 4) a statement of all material facts regarding valuation of community property and 5) a statement of all material facts regarding financial obligations which are community property and 6) a statement describing any business or investment opportunity since the date of separation.  See-Property and debts in a divorce

FINAL DECLARATION OF DISCLOSURE

A Final Declaration of Disclosure must set forth all relevant financial information prior to any agreement as follows:

(1) All material facts and information regarding the characterization of all assets and liabilities.

(2) All material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest.

(3) All material facts and information regarding the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability.

(4) All material facts and information regarding the earnings, accumulations, and expenses of each party that have been set forth in the income and expense declaration.

(Cal Fam Code § 2105)

INTERROGATORRIES

Either party may request that the opposing party provide documents, pictures, emails, text messages and other relevant documents which are relevant to the issues. A request must be limited in scope and duration. A party may not simply demand that the opposing party produce every document, picture, email, text message etc… since the date of the marriage, “Designate the documents, tangible things, land or other property, or electronically stored information to be inspected, copied, tested, or sampled either by specifically describing each individual item or by reasonably particularizing each category of item.” (Cal Code Civ Proc § 2031.030)

REQUEST FOR ADMISSIONS

Either party may request that the opposing party admit that certain facts are true. Requests are usually made to limit the issues that will be disputed at trial and to clarify the facts which are not in dispute. A request for an admission must be very specific and clear, “No request for admission shall contain subparts, or a compound, conjunctive, or disjunctive…” (Cal Code Civ Proc § 2033.060)

Properly preparing and responding to written discovery is a crucial element of every contested divorce proceeding and its importance cannot be underestimated. If you are in need of assistance with discovery in your family law matter you should contact the Law Offices of Sam Walker to ensure that you have an attorney with knowledge and experience in these matters.

Have Questions On Family Law in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
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Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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What Happens To The Family Home After A Divorce?

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What happens to the family home after a divorce?

The majority of divorces in Orange County and/or Los Angeles County include considerations of what to do with the family home at the time of divorce. There are several choices for dividing the home in the State of California which will likely depend upon several factors including 1) when the home was purchased, 2) the classification of the funds which were used to make the down payment and monthly payments and 3) whether one party wishes to remain in the home after the divorce is finalized. See California Family Code Section 2640 – http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=fam

If the home was purchased in Orange County or Los Angeles County by one spouse prior to marriage and was fully paid off prior to marriage the house will be considered to be separate property of that spouse unless the home was transmuted into community property by a written agreement and/or a deed during marriage. In this situation the spouse who paid for the entire cost of the home will be entitled to keep the home as his/her separate property upon divorce. If however the home was not fully paid off prior to the marriage there may be a right to reimbursement for any community funds which were used to pay off the mortgage and/or for the value of any improvements to the property which were paid for with community funds. A detailed analysis of the finances which were used to pay for the home and any improvements will need to be conducted including an analysis of the value of any improvements and their appreciation during the marriage. Representation by an experienced Orange County and/or Los Angeles County attorney at the Law Office of Sam Walker would be of great benefit to any parties needing to fairly determine the rights and responsibilities with respect to the family home. See https://codes.findlaw.com/ca/family-code/fam-sect-2640.html

If the home was purchased during the marriage it will be considered community property absent a transmutation agreement. If the parties will be selling the home and dividing the net proceeds from the sale equally the division of the home will not present any complicated division. If either party wished to remain in the home after divorce and obtain ownership, they will need to buy out the other spouse with either cash or some other mutually agreed upon exchange.

A final consideration is where a home is purchased during marriage and the mortgage is paid for with community funds, but the down payment was made with separate property funds. In this situation the spouse making the down payment will be entitled to reimbursement and/or reimbursement plus the net equity attributable to the down payment. Plainly stated the spouse making the down payment may be entitled to more than just a return of the funds used to make the down payment such as the applicable interest and/or net equity attributable to the down payment. See https://www.courts.ca.gov/1039.htm If any of these matters will arise in your divorce proceedings it would be best for you to obtain the services of the Law Office of Sam Walker.

Have Questions On Family Law in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Dividing Pension Plans Through Dissolution of Marriage Proceedings

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Dividing Pension Plans Through Dissolution of Marriage Proceedings

A pension can take different forms and is basically defined as a fund into which money is deposited during an employee’s employment years and from which retirement benefits are provided to the employee after retirement. See-pension Division of retirement plan benefits is always a major concern of both parties upon dissolution of marriage and is a complicated matter which often requires a Qualified Domestic Relations Order expert (QDRO). Depending upon the type of pension plan it may also be necessary to join the pension plan administrator to the dissolution proceedings to ensure that your Qualified Domestic Relations Order is acceptable to the plan administrator. See –Property and debts in a divorce

Whether or not you are required to join the pension plan administrator there are requirements which will be imposed by the court for entering the Qualified Domestic Relations Order. Even in the case where the pension plan administrator is not required to be joined as a party to the dissolution of marriage proceeding it is advisable to utilize the services of an expert for preparation of the Qualified Domestic Relations Order prior to submitting to the Judge for approval.

The division of the pension plan benefits will be based upon the manner in which the pension benefits were acquired including a determination of what percentage of the pension benefits were earned by the employee during the marriage and what percentage of the pension benefits was acquired prior to the marriage and/or after separation. Much like the division of other tangible personal property during the marriage the division of pension plan benefits will be based on the determination of the portion of the benefits are community, quasi community or separate property. Determining the value of the pension at the date of divorce will likely depend upon whether the pension plan is a defined benefit pension plan or a defined contribution plan.

The determination of the cash value of a defined benefit pension plan is typically less complicated because the cash value of the pension benefit can be determined by a set formula based upon your salary history, length of employment and does not depend upon independent investment risk factors. See- What Is a Defined-Benefit Plan? Examples and How Payments Work  By contrast a defined contribution pension benefit plan’s value at the date of divorce and/or separation is dependent upon investment risk factors and may not be easily determinable without the assistance of financial experts. See- Defined contribution plan  Examples of typical defined contribution plans are Individual Retirement Accounts (IRA’s), 401(k) plans and the Federal Thrift Savings Plan.

See-Plan for a lifetime with the TSP Although there are investment risks associated with the defined contribution plans there are benefits to these types of plans which are beyond the scope of this blog. Division of a defined contribution plan can also create risks of investment loss/gain after the divorce and the non-employee spouse may prefer a cash buyout to eliminate further risks and/or the need to make further investment decisions associated with the administration of the pension plan in the future.

Additionally, while there are tax savings which make a defined contribution plan an attractive option there are limits on the deferral amount set by the Internal Revenue Service. See- Retirement Topics

Have Questions On Divorce in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Division of Property in California

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Division of Property in California

How property is divided through a divorce is a major factor to be considered when contemplating a divorce. The main consideration is whether property is Community Property, Quasi Community Property or Separate Property, each of which will be treated differently.

Community Property

Community property is a marital property regime under which most property acquired by a spouse during a marriage (except for gifts or inheritances), is owned jointly by both spouses and is divided upon divorce, annulment or the death of a spouse. Community property is premised on the theory that marriage creates an economic community between the spouses (who may be same- or opposite-sex); and that the marital property attaches to that interpersonal community, rather than to the spouses themselves. (https://en.wikipedia.org/wiki/Community_property)  Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. (Cal Fam Code § 760, https://codes.findlaw.com/ca/family-code/fam-sect-760.html) Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, or as otherwise provided in this division, in a proceeding for dissolution of marriage or for legal separation of the parties, the court shall, either in its judgment of dissolution of the marriage, in its judgment of legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, divide the community estate of the parties equally. (Cal Fam Code § 2550, https://california.public.law/codes/ca_fam_code_section_2550)

Quasi Community Property

“Quasi–community property” means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways:

(a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition.

(b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition. (Cal Fam Code § 125,  http://leginfo.legislature.ca.gov/faces/codesTOCSelected.xhtml?tocCode=FAM&tocTitle=+Family+Code+-+FAM)

Separate Property

“Separate property” is property that is separate property under Part 2 (commencing with Section 760) of Division 4. (Cal Fam Code § 130) Separate property” does not include quasi–community property. (Cal Fam Code § 2502) The Separate property of a married person includes all of the following:

(1) All property owned by the person before marriage.

(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

(3) The rents, issues, and profits of the property described in this section.

(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.

(Cal Fam Code § 770)

Once the parties determine the type of property the division of the Community and Quasi Community Property will be equal 50/50 unless there were other agreements during the marriage. While married the parties may change the character of the property by an agreement called a transmutation. Subject to Sections 851 to 853, inclusive, married persons may by agreement or transfer, with or without consideration, do any of the following:

(a) Transmute community property to separate property of either spouse.

(b) Transmute separate property of either spouse to community property.

(c) Transmute separate property of one spouse to separate property of the other spouse.

(Cal Fam Code § 850) In order to successfully transmute property the agreement must conform to the requirements of the Family Code,

(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.

(b) A transmutation of real property is not effective as to third parties without notice thereof unless recorded.

(c) This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.

(d) Nothing in this section affects the law governing characterization of property in which separate property and community property are commingled or otherwise combined.

(e) This section does not apply to or affect a transmutation of property made before January 1, 1985, and the law that would otherwise be applicable to that transmutation shall continue to apply.

(Cal Fam Code § 852) (For more information see Transmutation)

Have Questions on the Division of Property in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
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Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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California Code of Civil Procedure Section 128.5 Sanctions

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California Code of Civil Procedure Section 128.5 Sanctions

Often times when involved in litigation there arises a dispute in which one party is alleged to have acted improperly and subject to Sanctions. A California Superior Court may impose Sanctions upon a party or their attorney if the Court finds that the party or their attorney has engaged in actions or tactics which were “made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  (CCP 128.5(a)),

The California Legislature explained that an action or tactic is considered frivolous if it is, “…totally and completely without merit or for the sole purpose of harassing an opposing party.” (CCP 128.5(b)(2)) The burden to prove that an action or tactic was “frivolous” is on the party filing the motion for sanctions. (Bach v. McNelis (Cal. App. 3d Dist. Jan. 31, 1989), 207 Cal. App. 3d 852)

In order to file a successful motion for sanctions the legislature set forth several requirements and/or decisive factors which a court would be required to consider including but not limited to the following:

(A) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.

(B) If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.

(See, CCP 128.5 (f)(1)) Accordingly, the “Motion for Sanctions” must be made separately from all other motions and must describe in detail the action or tactic that was made in bad faith that is frivolous or solely initiated to cause unnecessary delay. As for the 21 day “Safe Harbor” provision the legislature specifically amended California Code of Civil Procedure Section 128.5 on January 7, 2017 to make crystal clear the that the requirement for a 21 day “Safe Harbor” provision was mandatory and was identical to the requirements that its previous version referred to under California (Code of Civil Procedure Section 128.7).   The Legislature amended CCP 128.5 due to conflicting rulings on the requirement to provide a 21 day “Safe Harbor” to the opposing party. The 21 day “Safe Harbor” requirement is a mandatory waiting period from the time of service of the proposed motion for sanctions on the opposing party and the date upon which it can be filed with the court, “the safe harbor period is mandatory and the full 21 days must be provided” (Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 125) Failure to comply with the 21 day safe harbor requirement renders the motion for sanctions improper. Even if the motion for sanctions has merit the court must deny the request if the filing party failed to provide the opposing party the 21 day “safe harbor” notice of their intent to file prior to filing the motion for sanctions.

Have Questions On Civil Litigation in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Opening Probate Administration

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Overview of Initial Steps for Opening Probate Administration

After the passing of a loved one family members are often in need of legal representation to open probate administration. If the Decedent executed a Will prior to their passing which has not been revoked it will need to be filed with the Superior Court in the County where the Decedent resided at his time of death. (Cal Prob Code § 8200) If you have been entrusted with safeguarding the Will you are required to file the original Will with the Superior Court within 30 days of the Decedent’s passing and mail a copy to the named executor. (Cal Prob Code § 8200) If you fail to file the Will in a timely manner you may be liable for any damages caused to the Estate. (Cal Prob Code § 8200) The Superior Court will charge you a fee of approximately $100 to file the original Will but you will be reimbursed from the Estate by the Executor/Administrator. (Cal Prob Code § 8200, Cal Gov Code § 70626 ) –

In addition to safeguarding and properly filing a Will with the Superior Court, if you are named as an Executor of the Will or are another interested party you may file a Petition for Probate and seek to be appointed as the Executor and/or Administrator of the Estate. (Cal Prob Code § 8000) You may obtain the necessary forms from the State of California Judicial Branch Website at Find Your Court Forms. In order to file a Petition for Probate and the other required forms you will need to pay the Superior Court’s required filing Fee. In Orange County and/or Los Angeles County the required fee is $435. (GC 70650(a), 70602.5 & 70602.6)

Once the Petition for Probate and all other required forms are filed the Court will hold a hearing where any interested person may object your appointment as the Executor and/or Administrator. (Cal Prob Code § 8004) The Court will determine whether you are entitled to Letters Testamentary or Letters of Administration, the requirement for and the amount of any Bond and/or any limitations on the powers of the Executor or Administrator. Once you are appointed and the Court issues an Order for Probate you will be legally responsible and will also be liable for the proper management of the Estate which will include tasks such as marshalling the decedent’s assets, payment of funeral expenses, payment for expenses of last illness, payment and/or rejection of any creditor’s claims, payment of administration expenses, payment for any taxes owed by the decedent and any other matter which arises and concerns the decedent or the Estate.

If there are challenges to the Will or the Decedent’s capacity to execute the Will (Cal Prob Code § 811) an evidentiary hearing and/or trial will be needed to determine the disputed matters. (Cal Prob Code § 8252) Probate litigation is similar to a civil litigation matter in that both parties will be given the opportunity to conduct discovery and/or file any preliminary motions, the main difference is that probate litigation is decided by a judge rather than a jury.  (Cal Prob Code § 825)

Have Questions On Probate Administration in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Domestic Violence & (Temporary) Restraining Orders in Family Court

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Domestic Violence & (Temporary) Restraining Orders in Family Court

Domestic Violence is defined under the Family Code as abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, a person in a dating relationship, a person with whom you have had a child, or any person related by consanguinity or affinity within the second degree. (Cal Fam Code § 6211)

Abuse is also defined by the Family Code for purposes of obtaining or defending against a request for a Temporary or Permanent Domestic Violence Restraining Order as follow,

(a) For purposes of this act, “abuse” means any of the following:

(1) To intentionally or recklessly cause or attempt to cause bodily injury.

(2) Sexual assault.

(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another.

(4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.

(b) Abuse is not limited to the actual infliction of physical injury or assault. See- FAMILY CODE – FAM

In order to obtain a Temporary and/or Permanent Domestic Violence Restraining Order it is not necessary to prove that physical or sexual abuse has occurred; a threat of physical or sexual abuse can be sufficient to establish the need for a DVRO and provide a legal basis for the Court to issue the restraining order.  Abuse is defined by Cal Fam Code § 6320 widely to include any of the following behaviors,

(a)molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party. See- 2005 California Family Code Sections 6320-6327 Article 1. Ex Parte Orders

Proof of any of these actions alone or in conjunction with any of the other factors will be considered in totality by the Court. Both parties will be given the opportunity to testify and call witnesses on their behalf to support or dispute the allegations of Domestic Violence.

The party who is successful at a Domestic Violence Restraining Order Hearing may be entitled to have the other party pay all or a portion of their attorney’s fees. (Cal Fam Code § 6344) If a proper request for attorney’s fees is made the Court will determine based upon the respective incomes of the parties and other relevant factors whether such an order is justified,

(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney’s fees and costs, the court shall, if appropriate based on the parties’ respective abilities to pay, order that the respondent pay petitioner’s attorney’s fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney’s fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay. (Cal. Fam. Code, § 6344)

Have Questions On Family Law in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Understanding Malpractice

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Understanding Malpractice

All professionals are required to perform their services competently and with the reasonable skill and care of the type whether it be an attorney, doctor, nurse, accountant etcetera. If you suspect that a professional has committed malpractice the first thing that you should do is to contact the Law Office of Sam Walker immediately. Time is of the essence in all malpractice matters, there are Statutes of Limitations which can prevent you from bringing your lawsuit if you wait to long. The time period that you have for filing a malpractice claim will vary depending upon the type of professional involved. If you believe that your attorney has committed malpractice your time limit is one year as set forth by Cal Code Civ Proc § 340.6,

(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case. Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

(1) The plaintiff has not sustained actual injury.

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.

(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.

(4) The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.

(b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of that act or event. See-Cal Code Civ Proc § 340.6

If you believe a health care practitioner has committed malpractice there are preliminary steps that must be taken before a lawsuit must be filed in addition to the Statute of Limitations, including a requirement to give the defendant 90-day prior notice of your intent to file a lawsuit, as set forth by Cal Code Civ Proc § 364,

a)No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

(b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

(c) The notice may be served in the manner prescribed in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2.

(d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.

(e) The provisions of this section shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474. See- Cal Code Civ Proc § 364,

The applicable Statute of Limitations for Medical Malpractice actions which do not involve fraud, concealment or presence of a foreign body is three years as set forth in Cal Code Civ Proc § 340.5,

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following:

(1) upon proof of fraud,

(2) intentional concealment, or

(3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

For the purposes of this section:

(1) “Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider;

(2) “Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

Have Questions On Malpractice in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Real ID Requirements in General

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Walker Law Corporation Articles

Real ID Requirements in General and for Access to Federal Courts and Boarding Domestic Flights

Passed by Congress in 2005, the REAL ID Act enacted the 9/11 Commission’s recommendation that the federal government “set standards for the issuance of sources of identification, such as driver’s licenses.” The 2005 Act established minimum security standards for state-issued driver’s licenses and identification cards and prohibits federal agencies from accepting for official purposes licenses and identification cards from states that do not meet these standards. States have made considerable progress in meeting this key recommendation of the 9/11 Commission and every state has a more secure driver’s license today than before the passage of the Act.

The California Department of Motor Vehicles started offering REAL ID driver’s licenses and ID cards on January 22, 2018. A REAL ID is needed to board a domestic flight beginning October 1, 2020, to enter secure all federal facilities or any military base beginning October 1, 2020 or to purchase firearms or ammunition in the State of California. You will not be required to have a REAL ID to apply for or receive federal benefits which may include but are not limited to Veterans Affairs Benefits, Social Security Administration Benefits such as Social Security etc…, to enter a United States Post Office or other federal facility that does not require identification to enter, to visit a hospital or to receive life-saving services, to ride Amtrak or other California public ground transportation or to drive your vehicle with a Class C Driver’s License in the State of California. An in person visit to any California Department of Motor Vehicles office will be required to apply for a REAL ID. When arriving at the Department of Motor Vehicles you will need the following documents in order to obtain a REAL ID include:

    • An unexpired U.S. passport or passport card.
    • A certified copy of  a U.S birth certificate (issued by a city, county, or state vital statistics office).
    • A valid certificate of birth abroad or Consular report of birth abroad of U.S. citizen.
    • A foreign passport with valid U.S. Visa and approved I-94 form.
    • A Certified copy of birth certificate from a U.S. Territory.
    • A Certificate of Naturalization or Certificate of U.S. Citizenship.
    • An unexpired Permanent Resident Card. Valid/unexpired Employment Authorization Document (EAD) Card (I-766) or valid/expired EAD Card with Notice of Action (I-797 C).
    • Proof of Residency in the State of California which may be in the form of utility bills, medical bills, car or boat registration, insurance, bank statements, mortgage or rental contract, tax return, deed etc…

You can complete your application for a REAL ID online and make an appointment to save yourself some time waiting in line at the California Department of Motor Vehicles, make sure that you bring all of the required documentation to the appointment. For more information on obtaining a REAL ID and/or the benefits of obtaining the REAL ID visit the Department of Homeland Security’s Website at See- REAL ID Frequently Asked Questions or the California Department of Motor Vehicles Website at See-REAL ID

Have Questions On Real ID Requirements in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Image of Attorney Sam Walker
Sam Walker

[email protected]

(714) 943-2336

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How a Child’s Preference Influences Custody Decisions

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Walker Law Corporation Articles

Child Custody & Child’s Preference in Court

Child Custody upon divorce will be decided by the court if the parties cannot agree to a parenting schedule. If the matter proceeds to litigation there are numerous factors that will be relevant to the court’s determination of the parenting schedule which will be in the child’s best interests.  The judge must consider the following factors to determine the best interests of the child and the parenting schedule for each of the parents: 1) each parent’s history of caregiving for the child, 2) each parent’s ability to be a fit parent, 3) the stability in each parent’s household, 4) the child’s health and safety, 5) either parent’s history of abuse or domestic violence, 6) either parent’s use of drugs or alcohol, 7) which parent is more likely to allow for and/or encourage a relationship between the child and the other parent, 8) whether either parent has made any false allegations of abuse against the other parent to gain an advantage in the litigation, 9) the residence of the child’s siblings if any, 10) the child’s preference and any other factors relevant to the child’s welfare.

CHILD’S PREFERENCE

A child’s preference should be considered by the Court in making any determination of custody or a modification of custody. A child’s preference is not determinative or conclusive but will be considered by the court in making the final custody order. If the child is over the age of fourteen the Court will allow the child to testify in open court as to their preference for living with a parent unless the court determines that testifying in such a manner would not be in the child’s best interests.  Each party will have the opportunity to present their evidence, support or opposition to either parties wishes to allow the child to testify. The court will consider any and all factors which mitigate for or against allowing the child to testify. Any and all factors which have a potential to affect the child’s well-being will be considered by the court and the court will decide the weight to be given to the child’s preference for living based upon the reasons for the child’s preference. Each case will present different facts and circumstances for the court to consider. If a child under the age of fourteen wishes to express a preference for custody the Court is not required to allow the child to testify in court but does have discretion to allow oral testimony if the child is of sufficient age and capacity to reason, so as to form an intelligent preference as to custody or visitation. Courts will be more receptive to allowing a child who is closer to fourteen years of age to testify than a younger child.

COURT MAY PROHIBIT CHILD’S TESTIMONY IF NOT IN BEST INTEREST REGARDLESS OF AGE

The Parties must keep in mind that the court may prohibit any child regardless of age from testifying if the court determines that the value of the child’s testimony is outweighed by its lack of probative value, the emotional detriment testifying may have on the child, or otherwise testifying is not in the child’s best interest. The court will likely consider the impact upon the child of testifying including any affect upon the relationship with the parents. If the court determines that allowing oral testimony in open court is not in the child’s best interest the court will provide an alternative means for obtaining the child’s preference.  If the court does not allow oral testimony the court will order that the Child’s preferences be determined through a counselor or other professional child custody evaluation.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Image of Attorney Sam Walker
Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice
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