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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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