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CA SUPREME COURT CONCLUDES SHERIFF'S DEPARTMENT HAD DUTY TO REPORT CHILD ABUSE ALLEGATIONS

January 26th, 2016

On November 30th, 2015 in the case of B.H. v. County of San Bernardino (2015) The California Supreme Court affirmed in part, and reversed in part, the decision of the Court of Appeal. Plaintiff sued the San Bernardino County Sheriff's Department and a deputy sheriff for not reporting child abuse allegations to the child welfare agency, in violation of the Child Abuse and Neglect Reporting Act (CANRA; Penal Code section 11164 et seq.). The trial court granted defendants' motion for summary judgment, finding there was no duty to cross-report, and defendants were immune from liability. The Court of Appeal affirmed the trial court's ruling. The Supreme Court concluded that the Sheriff's Department had a mandatory and ministrial duty to cross-report the child abuse allegation made to the 911 operator to the child welfare agency, and the failure to cross-report can support the finding of a breach of a mandatory duty (Penal Code section 11166(k)Government Code section 815.6.). The individual officer, however, had no duty to report the child abuse allegations and her investigative findings to the child welfare agency. (Penal Code section 11166(a).)

NSA'S COLLECTION OF AMERICANS' PHONE RECORDS VIOLATES PATRIOT ACT

January 13th, 2016

On May 7th, 2015, a three judge panel for the Second Circuit Court of Appeals became the first appellate court to rule on the legality of a government surveillance program, put in place in the interests of national security.

The claims in A.C.L.U. v Clapper, brought after the surveillance was revealed by Edward Snowden 2013, raised statutory and constitutional challenges to the National Security Agency’s (NSA) “telephone metadata program.” Under this program, the NSA collects metadata associated with telephone calls made by Americans, and aggregates it into a data bank where it can be searched. This data is created by telephone companies in their normal course of business, but under the program companies are explicitly required to give that information to the government on an ongoing basis.

The government went into significant detail about metadata, and pointed out this type of data does not include voice content of telephone conversations, rather it includes details of calls including length of call, phone number called, phone number from which the call was made, etc. The government maintained that the information does not include identities or names of individuals. Appellants and amici countered with evidence from a recent study that showed metadata can reveal a surprising amount of private information such as political or religious affiliations, social status, or whether a person is involved in an intimate relationship.

After a thorough discussion of the history of intelligence gathering in the United States and efforts of counter-terrorism, the Court concluded the language of the Patriot Act, specifically §215, could not be construed to authorize the telephone metadata program.

What makes this case particularly interesting is the fact that the issues decided could soon become moot. Section 215 is set to expire on June 1st of this year, meaning Congress will have an opportunity to change its terms, or simply choose not to reauthorize it. The Court did not reach constitutional arguments, as events in the near future could significantly alter the issues. Ultimately, government interests in protecting our nation’s security will most certainly continue to clash with privacy interests of citizens.

Author: Marissa Bartolucci

CALIFORNIA: SHAREHOLDER LIABILITY UNDER THE "ALTER-EGO" DOCTRINE

December 17th, 2015

Ordinarily, shareholders are not personally responsible for corporate liabilities. However, if a corporation has been operated as the “alter ego” of its shareholders, the corporation’s creditors-including torts claimants- may be permitted to “pierce the corporate veil” and enforce their claims directly against the shareholders. (Similarly, an action may lie on an “alter ego” theory against the corporate parent of a wrongdoing subsidiary.) Two requirements must be established prior to considering whether the “alter-ego” liability may be appropriate.

Unity of interest: It must appear that the corporation was influenced and governed by the persons sought to be held liable for its conduct; and there must be such “unity of interest” and ownership that the individuality or separateness of the corporation has ceased to exist (or never existed in the first place).

Alter ego liability necessary to avoid inequitable result: Also, the facts of the case must be such that adherence to the “fiction” of the corporation’s “separate existence” would sanction a fraud or promote injustice. Since the doctrine of “alter ego” has been designed to prevent what would be fraud or injustice, if accomplished, “bad faith in one form or another” is sufficient to justify a court’s disregarding the corporate entity.

Should the Court decide that “alter ego” liability is established, it would mean that the corporation’s shareholders are effectively treated as “partners” of the corporation and, therefore, held jointly and severally liable for the corporation’s obligations. This is so regardless of the defendant shareholder’s percentage ownership.

Application to Personal Injury Claims: The focus in the personal injury context is on whether it would be an abuse of corporate privilege to allow the principles to escape liability for wrongs committed by the corporation.

For example in Minton v. Cavaney (1961) 56 Cal.2d. 576, plaintiffs obtained a $10,000.00 wrongful death judgment against the corporation that operated a public swimming pool in which their daughter drowned. When the judgment proved uncollectible because the corporation had no assets or insurance, plaintiffs sued Attorney, a director of the corporation, as its “alter ego.” Evidence supporting alter-ego liability included: the corporation’s “trifling” capital (it had leased the pool); it never issued stock; Attorney was also its secretary and treasurer; and attorney let it use the office to receive mail. Since Attorney allowed the corporation to engage in business without adequate insurance or capital, letting him escape personal responsibility for injuries caused by the business would be an abuse of corporate privilege.

If you or a loved one has been injured contact the Rejali Law Firm for your obligation FREE and Confidential consultation. Attorney Omid Rejali and his team live to protect their clients interests and rights against big corporations.

CONSUMER ALERT

August 24th, 2015

ALLEGED FRAUDULENT AND DECEPTIVE BUSINESS PRACTICES IN MISSION VIEJO, CALIFORNIA

Our firm has been recently retained to represent a client against a business operating in Mission Viejo, California for alleged fraudulent and deceptive business practices.

The business establishment consistently advertises on cable TV promising potential investors a 60% return on investment if the consumer invests their gold, jewelry, and watches with them. Our client left a substantial amount of gold with the business for investment. We have recently been notified that the business sold our clients gold and has not paid her the 60% return on their investment.

According to the complaint filed in Orange County Superior Court, Central Justice Center, the business establishment lures its victims in by promising a 60% return on their investment. To further secure their deceptive practices they also hand the investors a check for the total amount invested plus the 60% return after one year. The practices are nothing more but pure fraud.

The case is still ongoing. This information is being presented to educate the public about the deceptive practices of this particular establishment.

More information about the case can be found on the Orange County Register of Actions Website by clicking here:

https://ocapps.occourts.org/civilwebShoppingNS/Search.do#searchAnchor

If you or anyone you know has been a victim of a fraudulent scheme like the case we are representing, contact our office for more information.

The case number is: 30-2015-00794386-CU-CO-CJC

IS YOUR GEM SAFE WITH GEMOLOGICAL INSTITUTE OF AMERICA, INC.?

July 23rd, 2015

On July 24th, 2014, our clients (“Plaintiffs”) submitted her engagement diamond to be graded and inscribed (for insurance purpose) to the world’s most trusted diamond grading expert, directly to their headquarter located in Carlsbad, California. They would have been better off not paying for their grading services, and going to another gem lab. It has now been one year to the date and not only has the Gemological Institute of America (“GIA”) withheld their diamond for the past year; GIA has now found themselves in two bicoastal lawsuits. Our clients have also had an extremely complicated litigation that has taken them from California to New York and is still nowhere to be finished.

COMPETING CLAIMS OF OWNERSHIP

After submitting their diamond for grading to GIA, Plaintiffs received a letter from GIA the defendants in this ongoing battle, that the diamond they have submitted for grading is the same or substantially similar diamond as a diamond that a different party in New York had reported stolen to them back in November of 2013. The diamond(s) allegedly purported stolen by the reporting party in New York was part of a necklace worth one million dollars. According to the reporting parties complaint filed in New York the necklace was purportedly stolen from a gem show in the United Arab Emirates in October of 2013, the reporting party did not carry insurance nor do they have a GIA certificate for the stone(s) they alleged to be stolen from them.

According to GIA’s letter the parties had two choices: 1) settle the matter amongst themselves within 60 days or 2) commence a lawsuit and have the courts determine who would be the rightful owner of the diamond. GIA also noted that should neither party file a lawsuit the diamond would be returned to the purported owner who had originally submitted the diamond to GIA for grading (i.e. Plaintiffs)

NEW YORK LAWSUIT

On September 29, 2014, five days prior to the end of the 60-day period the reporting parties lodged a lawsuit against Plaintiffs in New York Supreme Court (i.e. State Court). Little did Plaintiffs know that the diamond that they had submitted for grading to GIA in Carlsbad had now been transported to New York. After a long drawn out battle in New York, on May 20th, the New York Court entered judgment against our client based on their purported in rem jurisdiction. In rem jurisdiction is the ability of a court to enter judgment against a party based on the property being in their territorial jurisdiction; as you can imagine this came as a shock to our client.

CALIFORNIA LAWSUIT

On October 3rd, 2014, our law firm filed a lawsuit against GIA and the reporting parties. The Court dismissed the reporting parties for lack of personal matter jurisdiction. After multiple failed attempts by GIA to try to dismiss the complaint against them, the Court on May 15, 2015, overruled GIA’s third demurrer (motion to dismiss) and allowed Plaintiffs to move forward on their case against GIA. Among the causes of actions alleged against the defendants are 1) Breach of the Implied Covenant of Good Faith and Fair Dealing; 2) Breach of Contract; 3) Conversion; 4) Unfair Business Practices and Unconscionability of the contract.

The case is currently in its discovery phase and the parties do not anticipate the case to be finished anytime soon because of the myriad of questions that remains open. However, in light of what the plaintiffs in this case have had to suffer, the question that you as a consumer should ask yourself is, Are my gems safe with the Gemological Institute of America, Inc. “the most trusted gem lab in the world”?

For more information: https://roa.sdcourt.ca.gov/roa/faces/CaseSearch.xhtml case Number is 2014-00033783-CU-OR-CTL.

CARC 3.1320(J) VS. CCP 471.5(A)

January 23rd, 2015

There has long been confusion among the legal community as to the application of California Rules of Court 3.1320(j) and California Code of Civil Procedure (“CCP”) § 471.5(a) as they relate to the time a defendant has to respond to a complaint following the courts decision to sustain its demurrer.

California Rules of Court 3.1320(j) states: Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following:

  1. The overruling of the demurrer;

  2. The expiration of the time to amend if the demurrer was sustained with leave to amend; or

  3. The sustaining of the demurrer if the demurrer was sustained without leave to amend

Learn more on Demurrer

California Code of Civil Procedure § 471.5(a) states: If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby. The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. For the purposes of this subdivision, “complaint” includes a cross-complaint, and “defendant” includes a person against whom a cross-complaint is filed.

The rules and the statue conflict with one another since the rules of court state that, the defendant has 10 days to respond to the complaint or the remaining causes of actions if the demurrer has been sustained, yet the code states that the defendant would have 30 days to respond.

Recently the California Court of Appeal in Scott Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200 shed some light on these two seemingly conflicting rules. The court held, that if the demurrer has been sustained and the court grants the plaintiff leave to amend his/her complaint, then CCP 471.5 applies and the defendant has 30 days to respond to the amended complaint. For practical purposes it seems that if the court sustains defendants’ demurrer against plaintiff complaint as to several but not all causes of actions and does grant plaintiff leave to amend its complaint, and plaintiff chooses not to amend the complaint with respect to those causes of actions that the court did sustain the demurrer against, then the defendant has only 10 days to respond to the remaining causes of action in plaintiff’s original complaint. However, as mentioned above if plaintiff chooses to fully amend its complaint, then defendants would have 30 days to respond to the complaint.

Civil litigation has many nuances that could make or break a plaintiffs case. For this reasons it is important to have an experienced civil litigation attorney by your side when navigating the court system to ensure your rights are being protected and your case is not thrown out of court based on technicalities. Attorney Omid Rejali, Esq. and the Rejali Law Firm staff are experienced in the area of civil litigation and will make sure your rights are protected in all San Diego court proceedings. If you are considering a lawsuit or are already involved in a lawsuit and are looking for an experienced litigation firm, contact us for your FREE and Confidential consultation to make sure your rights are being protected.

CIVIL LITIGATION-DEMURRERS

January 6th, 2015

In a famous quote Abraham Lincoln stated: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
 Litigation is a position no party would want to find themselves in. It is time consuming, costly, stressful and last but not least it deteriorates long lasting relationships among parties. Civil litigation could involve a myriad of different issues such as, disputes over property, contracts, negligence of a party, products liability, dog bites, and premises liability just to name a few.

Litigation is initiated when one party (generally the plaintiff) files a complaint in court, which has proper jurisdiction over the subject matter of the claim, the people involved in the case and in the proper venue. For example, if an accident has occurred in San Diego, and if both parties are from San Diego and reside there, then the proper place to file a claim would be in the Superior Court of San Diego. Once a claim has been initiated the person being sued in California state courts has 30 days to respond to the complaint and 21 days to respond to the complaint if the suit has been brought in federal court.

In most cases, instead of answering to the complaint, defendants file what is termed in California as a demurrer. A demurrer generally attacks the legal sufficiency of the complaint. However, it could also be brought on other grounds such as: including the incorrect party in the complaint or claiming that the facts pleaded in the complaint do not rise to a cause of action recognized under the law. Once a demurrer has been filed, the Plaintiff would have to file an opposition to that demurrer and the court would set a date for a hearing for both parties to have their matter heard.

At the Demurrer hearing one of several events could transpire. The judge may sustain the moving parties demurrer (moving party is the party filing the demurrer) or he or she may over rule the demurrer. If the judge sustains a demurrer, generally in San Diego civil courts the judge would allow the plaintiff leave to amend his/her complaint. Meaning, the judge would allow the plaintiff to fix anything that is wrong with the complaint that was originally filed. On the other hand, if the judge overrules the demurrer, then the defendant would be given time to respond to the complaint.

As Abraham Lincoln stated in his quote Litigation should be discouraged. But if you have been sued or are planning on vindicating your rights by bringing a claim against a party, there are many deadlines and intricacies in civil litigation that could have a substantial effect on your case. At the Rejali Law Firm we take pride in what we do and our team would relentlessly fight by your side to protect your rights inside and outside of all San Diego state and Federal courts. If you are in need of an attorney feel free to contact us for your FREE and CONFIDENTIAL consultation, where you can be rest assured no stone will be left unturned to protect your rights.

This information does not create an attorney-client relationship. The information provided is for general guidance only and its accuracy is not guaranteed. Please consult with a qualified attorney before relying on any of the information provided here.

UNDERSTANDING THE NATURE OF PERSONAL INJURY LAW

December 4th, 2014

Personal injury is a subset of a large umbrella of the law called torts. It offers legal rights to victims of physical or psychological injuries, which come as a result of the wrongdoing or carelessness of another person, government, company or entity. There are different types of personal injury under which a victim might be entitled to compensation in the courts of California and in San Diego.

TYPES OF CASES

Personal Injury cases may be applicable when a person acts negligently and as a result causes harm to another person. Examples of this include car accidents, medical malpractice, as well as other toxic tort cases.

It may also be applicable when a person knows and intentionally causes harm on another person. This can come in the form of an assault, false imprisonment, and battery to name a few.

Personal injury law can also be applied when a person did not intentionally nor negligently do a specific wrongdoing on his part but is still liable for a claim. These Cases include dog bites, and certain products liability claims are called strict liability claims, where the act alone causes the defendant to be liable under the law.

THE PURPOSE OF THE LAW

The main purpose of tort law is to compensate injured victims and put them in a position where they had been prior to any wrongdoing. People and companies are expected to interact and perform on a level guided with attention and care. This law, therefore, promotes and encourages good behavior, while reducing bad behavior. When accidents happen, having an experienced personal injury attorney by your side, that genuinely cares for you and your rights can substantially increase your recovery.

THE ROLE OF A SAN DIEGO PERSONAL INJURY LAWYER

No personal injury case is alike since no two accidents occur exactly under the same situation and inevitably all have different variables associated with them. The case generally begins, with a person (plaintiff) being injured (whether physically, psychologically, by loss of use of a personal property, or a variety of other ways) by another person (defendant).

Then, the defendant, upon determining that there has been a legal duty that has been breached, attempts to settle the matter through negotiations. If the plaintiff does not agree to the amount offered by the defendant, and is represented by an injury attorney, he/she may file a lawsuit against the defendant. The lawsuit should explicitly state the legal basis of the claim, including the remedy that he is expecting.

The defendant then files an answer, witnesses may enter the picture, and depositions may be set in place. As of this point, the more crucial steps follow, which include the trial, and eventually facing a verdict. If you are facing the need to come under the protection of this law, having an attorney by your side to guide you through the process and help you with legal presentation is a good place to start. If you have any questions relating to your case call our office for a FREE and CONFIDENTIAL evaluation of your case.

HOWELL V. HAMILTON

November 21st, 2014

In Howel v. Hamilton, 179 Cal.App.4th 686 (2009), the court was presented with the issue of whether a post-judgment order by the trial court reducing a judgment of special damages.for the plaintiff because her providers had accepted as full payment an amount less than what was actually billed was in violation of the collateral source rule.

In layman terms what the collateral source rule.states is that, a party who has been made whole already from a collateral source, such as a plaintiff receiving benefits from his/her own private health insurance policy should still be allowed to, in addition, to that recovery be able to recover from the defendant tortfeasor. In other words, the defendant is still liable for all damages incurred as a direct cause of his actions.

In Hamilton, a post judgment order reduced Howell’s special damages award (i.e. awards for medical expenses), from roughly $190,000.00 down to about $60,000.00. Howell, argued that the trial court’s reduction in her special damages award was erroneous and not in line with the collateral source rule. The Supreme Court Agreed. The Court rationed that, since Howell had entered into contracts with her providers that she would be personally liable for all amounts due under the contracts between her and her providers, she would have been ultimately responsible for the FULL amount of the bills even though her providers had come to different agreements to accept as payment in full a lesser amount that originally billed to her insurance company.

WHAT DOES HOWELL V. HAMILTON MEAN FOR PERSONAL INJURY CASES?

Based on the courts ruling on Howell, personal injury plaintiffs that carry private health insurance coverage, would be entitled to present their entire medical bills for the juries consideration in determining how much damages they should be entitled to. Also, even if the plaintiff’s providers have accepted as full payment an amount less than that which was originally billed, the plaintiff would still be entitled to the full amount. It should be noted that this particular case applies only to those cases where the plaintiff has private health insurance, which does NOT include medi-cal.

WHAT IF MY HEALTH INSURANCE DOES NOT COVER A CERTAIN TYPE OF ACTIVITY?

If you do carry private health insurance and your private health insurance coverage DOES not cover certain types of activity (such as chiropractic care, MRI, Pain Specialists, etc.), since under the law you are still entitled to ALL economic damages such as medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, loss of employment, loss of business or employment opportunities, you could still seek treatment.

Remember insurance companies are NOT on your side. Their duty of loyalty is to their company and they ALWAYS want to save their own company money. Personal injuries could have a grave impact on your career, health and well-being and on your family.

Just remember you would want to get the process rolling as soon as possible. For any further inquiries contact us.

Rejali Law Firm

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