San Jose Attorney - Almaden Times Articles

You May Ask For A Different Judge, But Do You Want To?

This week's question: I have a case that I am handling myself, so I can't ask my attorney this question. There is one judge at the courthouse that I know about and I do not want him to hear my case. Under any circumstances. Is there any way that my case can be assigned to a different judge?

/s/ Brian B.

Almaden Valley Dear Brian- I will assume that your legal case is pending in state court at some level and not in Federal Court, since my experience is primarily in state court. Each system has different rules that must be followed. First of all, if you can show (i.e., prove) that the judge is biased or prejudiced against you, it is possible to have the case assigned to a different judge. This must be done quite early in the process, however. And it is probably easier said than done to prove that the judge is biased or prejudiced against you. This would be called a "challenge for cause."

Secondly, there is another way to have your case assigned to a different judge. This is called a "peremptory challenge" under California Code of Civil Procedure Section 170.6. According to a recent case: "Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party. Various restrictions on the time of the motion are imposed by this statue, and a party may exercise such a challenge only once during the trial of an action or a special proceeding. A motion that conforms to all the requirements of section 170.6 must be granted."

In other words, "[b]y enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice; proof of actual prejudice is not required." In practice, a party or an attorney for a party is first sworn to tell the truth and then states under oath or in a written declaration that he or she believes that he or she cannot get a fair trial before Judge [name]. If this is done timely, a different judge is then assigned to hear the case. This may cause some delay in the proceedings, but that's the way it is.

There are a few important things to keep in mind. The peremptory challenge must be done quite early in the case and within a very few days after the case is first assigned to that judge. You cannot wait until the case is half over during a trial in front of that judge and then try to exercise the peremptory challenge under CCP §170.6. It doesn't work that way.

Another important thing to keep in mind is that you have only one such peremptory challenge in any one case. So, you may succeed in your §170.6 challenge before that particular judge only to be assigned to a judge whom you perceive as worse. That's just tough. You made your decision. So I think it's safe to say that you exercise your CCP §170.6 with great caution.

You can read about this topic online by going to your favorite search engine and entering California Code of Civil Procedure Section 170.6. It should be up on your screen in less than a half a second. As always, you will want to discuss this topic with your own attorney to see how peremptory challenges may apply or may not apply to your situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.  If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Drivers May Need To Pay Attention To "Back Seat" Drivers

This week's question:

I have a wonderful husband but we have one nagging problem, at least I think so, and that is his back seat driving when I am driving our SUV. He is constantly trying to tell me what to do and what not to do when it comes to driving. I am a good driver and have not had an accident in 24 years of driving, and yet he is constantly on my case. Can I legally tell him to just be quiet and mind his own business-once and for all?

/s/Jessica J.,  Almaden Valley

Dear Jessica- Well, Jessica you have emailed in a very interesting question. I try to avoid family disputes, but you have raised a good issue. And the answer, it seems to me, is that it depends on the circumstances.

I think the basic rule is that a passenger, such as your husband, is not required to be aware of the conditions on the roadway and is entitled to expect that you as a driver will use "reasonable care".

However, if the passenger becomes aware of a danger on the roadway, for example, or the driver's impairment or failure to use reasonable care, then the passenger must take reasonable steps to protect his or her own safety.

At last two interesting cases have been published on this topic. The first one is Casey v. Russell, a 1982 case. In that case, the court held that in the absence of some fact brought to the attention which would cause a person of ordinary prudence to act otherwise, a passenger in an automobile has no duty to observe traffic conditions on the highway, and his or her mere failure to do so, without more, will not support a finding of contributory negligence.

In other words, an automobile passenger's "duty to look" does not arise until some factor of danger comes to the passenger's attention, thus charging the passenger as a person of ordinary prudence to take steps for the person's own safety.

The second interesting case of note is entitled "Pobor v. Western Pacific Railroad Company", a 1961 case. In that case, the court held that even when negligence of a driver may not be imputed to the passenger, the passenger is bound to exercise ordinary care for the passenger's own safety.

The Pobor case goes on to state that the passenger may not shut his or her own eyes to an obvious danger and may not blindly rely on the driver in approaching a place of danger. The passenger is normally bound to protest against actual negligence or recklessness of the driver, the extent of the passenger's duty in this regard depending upon the particular circumstances of each case and ordinarily being a question of fact for the jury.

Good luck with the "back seat" driver problem, Jessica. I have a hunch the above information will not settle your lively family discussion.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

"Runners And Cappers" Just Might Get The Attorney In Trouble

THIS WEEK'S QUESTION: Several weeks ago my husband was seriously injured in an automobile accident. We have had several thousands of dollars in medical expenses already. Last week we had a young man come to our door who tried to sign up my husband as a client for a law firm here in San Jose. Evidently, the police accident report listed our home address. He said that he was an "investigator", but I felt uneasy about the situation. Is this legal? (I told him "no thanks!")

/s/ Rachael R., Almaden Valley

Dear Rachael: I can see why you might have felt uneasy about that particular situation, Rachael. General advertising for legal services may be one thing but outright solicitation might be another. And another problem may be when one serves as a "runner" or "capper". The State Bar Act makes it unlawful for "any person", i.e., a lawyer or nonlawyer, "to act as a runner or capper" for an attorney or "to solicit any business" for an attorney in any public place or upon private property.

So, you ask just what is a "runner" or a "capper". These terms refer to anyone "acting for consideration. . . as an agent" of an attorney or law firm in the solicitation or procurement of business for the attorney or law firm. And the rule applies to whether the attorney or firm practices in California or in another state. An "agent" is one who represents another in dealing with one or more third persons.

According to California Business and Professions Code §6152(a)(2), it is unlawful for an attorney (or anyone else) to solicit another person to act as a runner or capper in violation of the law. And any contract obtained through a runner or capper is no good. Business and Professions Code §6154(a) provides that any contract for professional services secured by a lawyer or law firm through the services of a runner or capper is void. Not only may the runner or capper be in difficulty with the law but the attorney as well may be in trouble with the State Bar. (The State Bar is the licensing agency that grants us attorneys the "privilege" to practice law in this state.)

In addition to facing criminal penalties, a lawyer may be disciplined for using runners and cappers to solicit business improperly. It may be alright to recommend professional employment in many situations, of course, but not in the context of the employment of runners and cappers. California Penal Code §646.5 provides that "A member [of the State Bar] shall not knowingly assist in, solicit or induce any violation. . . of the State Bar Act". Also, committing an act involving moral turpitude, dishonesty or corruption, such as acting as an aider and abettor, is ground for attorney disbarment or suspension. And this is regardless of whether the act is a felony or misdemeanor and whether or not it was performed while acting as an attorney.

The penalty for a violation of the law concerning the prohibition of solicitation (California Business & Professions Code §6152) is very clear: "Any person, firm, partnership, association or corporation violating subdivision (a) of §6152 is punishable, upon a first conviction, by imprisonment in a county jail for not more than one year or by a fine not exceeding $15,000, or by both that imprisonment and fine." And "upon a second or subsequent conviction, a person, firm, partnership, association, or corporation is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, three, or four years, or by a fine not exceeding $15,000, or by both that imprisonment and fine."

Any consumer can read these California Business and Professions Code sections for himself or herself by going online and entering the code sections mentioned above in the search box of that particular search engine. The legal provisions should be up on the screen in about a half a second. Also, if a consumer is aware of any runner or capper, it would be good to contact either the State Bar of California or the consumer's local police department. As was stated above, general advertising is one thing but solicitation through runners and cappers is quite another thing.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Personal Injury Damages May Be Assigned To The Injured Spouse

This week's question: I was seriously injured in an automobile accident several months ago. And if that was not bad enough, now my wife and I are having marital problems. What I am wondering is this: if we should separate, will my settlement money be given to me 100% or will I need to share 50% of it with my wife because the settlement may be considered community property?

/s/Will W., Almaden Valley

Dear Will- You have emailed in a great question, Will. It is too bad about your marital situation and your accident too, but maybe you and your wife can work out the marital issues. If you cannot work things out, I can see why you are concerned about your accident settlement money. Since you said that your accident occurred while you were married and living together, chances are that the settlement money will be considered or classified initially as community property, but the money may be "assigned" to you as the injured spouse.

Let me explain this a little further. The California Family Code in §2603 defines community estate personal injury damages. It provides as follows: (a) "Community estate personal injury damages" as used in this section means all money or other property received or to be received by a person in satisfaction of a judgment for damages for the person's personal injuries or pursuant to an agreement for the settlement or compromise of a claim for the damages, if the cause of action for the damages arose during the marriage but is not separate property as described in §781, unless the money or other property has been commingled with other assets of the community estate." §781 of the California Family Code is entitled "Cases Where Damages for Personal Injury Are Separate Property". This pertains to other situations, including situations where the parties have been separated or their marriage has been dissolved. In many of those types of situations, personal injury damages could well be the separate property of the injured spouse and awarded to him or her as long as the funds are not "commingled" or mixed in with community property.

So, you can see that we start out with the basic principle that yes, the settlement money may well be community property if the money was received or grounds for the suit arose during marriage prior to any separation of the parties. But then §2603 of the Family Code goes on to state that: (b) Community estate personal injury damages shall be assigned to the party who suffered the injuries unless the court, after taking into account the economic conditions and needs of each party, the time that has elapsed since the recovery of the damages or the accrual of the cause of action, and all other facts of the case, determines that the interests of justice require another disposition. In such a case, the community estate personal injury damages shall be assigned to the respective parties in such proportions as the court determines to be just, except that at least one-half of the damages shall be assigned to the party who suffered the injuries."

In plain language, this means to me that since you were the injured spouse, Will, ordinarily the settlement money will be "assigned" or given to you 100%. But there are other factors that the court may take into account with the provision that at least 50% of the settlement money will be awarded to you as the injured spouse. There are often other issues as well that your attorney needs to take into account, since each case is different. So, I would definitely have a consultation with my own attorney to see how some of these basic rules apply (or do not apply) to my specific situation. Best wishes in your working all of this out.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Parents' Liability For Acts Of Children May Extend Beyond Age 18

This week's question:

What type of financial or legal liability do parents have concerning a child once they turn 18? Specifically, I am wondering if an adult-child causes injury to person or property, will the adult-child be solely responsible for their actions once they are legal adults, and if not, what are the scenarios where the parents might be liable?

/s/Mark M.

Almaden Valley

Dear Mark-

Excellent question, Mr. Mark. Let me see if I can answer it satisfactorily for you.

Generally speaking, parental liability for acts of their children who have turned 18 ceases when the child has his or her eighteenth birthday and thus is a legal adult (for most purposes). However, having said that, I need to add quickly that there are a few important exceptions, often based on "special relationships".

One exception is where a parent, for example, would give the keys to the family car to an adult child knowing full well that the adult child had a long history of alcohol and/or drug abuse, previous "accidents" causing personal injuries, previous trips to juvenile hall, and the like.

If that adult child would go out and kill somebody in an automobile "accident" and the cause was the adult child's drunk driving, it could well result in parental liability for the wrongful death of the other driver and/or passengers. Or his or her own passengers. A plaintiff's lawyer might frame that suit against the parents in terms of negligent entrustment of the automobile. (Of course, the young adult child would probably have no assets to pay any claim.)

There have been several cases over the years where no duty of due care arises simply because of the parent-adult child relationship, but it has been recognized that entrusting an instrumentality to an improper or incompetent person, under circumstances that indicate a likelihood of misuse, may be grounds for liability. As mentioned above, one of the principal examples is entrustment of a motor vehicle to an incompetent, reckless, or intoxicated driver.

You can probably imagine a little bit different situation where a parent allows an adult child to use a hand-gun, knowing full well that the chances are great that the adult-child might kill or seriously injure someone. Again, the injured person or his or her heirs, might have grounds for a law suit based on negligent entrustment. However, it is important to note that every case is different and these cases often depend or turn on a few key facts.

For example, in the 1993 case of Todd v. Dow, the Court held that by allowing their adult, married son to store a firearm collection in his former bedroom, the parents did not assume a duty to supervise the son's off-premises use of the firearms. The parents had no control over son, and had no ostensible reason to be concerned about the weapons.

In that case of Todd v. Dow, the son had exhibited no violent tendencies, threatened no one and intended no harm with the firearm. Neither the parent-child relationship nor the storage of the firearms at the parents' home created a special relationship with third parties for firearms injuries occurring off the premises. In that case, an antique rifle accidentally discharged while the son and an adult cousin engaged in mock hand-to-hand combat with bayoneted rifles. Sadly, the injured person was rendered a paraplegic.

In cases like this, the court will often look to whether it was foreseeable that a firearm would accidentally discharge, causing serious injuries and whether there is a close connection between the parents' conduct and the victim's injury. Also, the Court will look at whether there was any legal duty of due care on behalf the parents to supervise and/or control the adult child's use of the firearm. And, moral blame is often a key element.

One of the key issues also will be whether the parents had the ability to control the adult child. The absence of any ability to control the adult child could well be fatal to a claim of legal responsibility. In the Todd v. Dow case, it could have been different if the parents gave, loaned, furnished, or supplied the rifle to the son instead of merely allowing the son to store the rifle at their house.

As you can see, Mr. Mark, even a few different facts could make a huge difference in finding legal liability against the parents. That's why you need to use a little common sense about potentially dangerous instrumentalities, such as vehicles and weapons. A little common sense will go a long way.

Finally, a whole separate area of the law deals with liability insurance coverage that involves the construction of insurance provisions relating to the insured's "residence," "household," "family," and the like, or to their occupants or members. That is a topic for another day.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Obtaining Copies Of Your Medical Records Should Not Be All That Difficult

This week's question:

I was seriously injured in an auto accident recently. I went to my doctor's office to get copies of my medical records and the office receptionist said that it was their "policy" to keep all medical records in their office. Is there any way I or my attorney can get a copy of those records? And how about other, previous, records pertaining to me and my medical history? And how much can they charge per page for the copies?

/s/David D.

Almaden Valley

Dear David-

I cannot understand why it is so difficult to obtain copies of your medical records from your own doctor's office. You might want to contact your doctor in writing about that, since it is pretty clear that a patient has a right to obtain copies of those records by signing a simple authorization. Maybe the receptionist was new and did not understand.

California Evidence Code §1158 has been around for some time. It provides in part as follows:

"Whenever prior to the filing of any action or the appearance of a defendant in an action, an attorney at law or his or her representative presents a written authorization therefore signed by an adult patient, by the guardian or conservator of his or her person or estate, or, in the case of a minor, by a parent or guardian of the minor, or by the personal representative or an heir of a deceased patient, or a copy thereof, a physician and surgeon, dentist, registered nurse, dispensing optician, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, or pharmacist or pharmacy, duly licensed as such under the laws of the state, or a licensed hospital, shall make all of the patient's records under his, hers or its custody or control available for inspection and copying by the attorney at law or his, or her, representative, promptly upon the presentation of the written authorization."

What many law firms do is to fill out a requisition with a professional copy service. They then go to the doctor's office with a portable copier and make the copies. California Evidence Code §1158 goes on to state:

"No copying may be performed by any medical provider or employer enumerated above, or by an agent thereof, when the requesting attorney has employed a professional photocopier or anyone identified in §22451 of the Business and Professions Code as his or her representatives to obtain or review the records on his or her behalf. The presentation of the authorization by the agent on behalf of the attorney shall be sufficient proof that the agent is the attorney's representative."

What if the doctor's office fails to provide the records for copying? Good question, and that is covered by Evidence §1158 as well:

"Failure to make the records available during business hours, within five days after the presentation of the written authorization, may subject the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney's fees, incurred in any proceeding to enforce this section."

Of course, the patient or attorney needs to pay the reasonable cost of the copies. The cost limits are also set out in Evidence Code §1158:

"All reasonable costs incurred by any person or entity enumerated above in making patient records available pursuant to this section may be charged against the person whose written authorization required the availability of the records."

Good rule, but what if people try to play games with the meaning of "reasonable" costs. That is covered also by §1158:

"Reasonable costs," as used in this section, shall include, but not be limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8 1/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to an authorization; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of sixteen dollars ($16) per hour per person, computed on the basis of four dollars ($4) per quarter hour or fraction thereof; actual postage charges; and actual costs, if any charged to the witness by a third person for the retrieval and return of records held by that third person."

And a final point is also covered by §1158:

"Where the records are delivered to the attorney or the attorney's representative for inspection or photocopying at the record custodian's place of business, the only fee for complying with the authorization shall not exceed fifteen dollars ($15), plus actual costs, in any, charged to the record custodian by a third person for retrieval and return of records held offsite by the third person."

So, there you have it, David. Good luck with getting copies of your medical records.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.