Ex Parte Communications

"Ex parte" is Latin and means, "on one side only; by or for one party." An ex parte communication occurs when one party to a case, or someone involved with a party, communicates (either verbally or via written means) directly with the judge about issues in the case without the other party's knowledge. Judges may not permit or consider "ex parte" communications unless expressly allowed by law. The rule banning such communications ensures the fairness of the court process. All parties will have the same information as the judge who will be deciding the case.

"Party" refers to any person or organization who sues or is sued.  If a party wishes to communicate with the judge or ask the judge to take a certain action in the case, the party may file a written motion with the clerk of the court where the case was filed explaining what relief is being sought and why the party is entitled to such relief. If a motion is filed, a copy must be sent to the other party to the case before being sent to the court.

Certain ex parte communications to a judge or court personnel are allowed by law. For example, judges may hear ex parte emergency requests for temporary restraining orders.

Examples of improper ex parte communications:

– A defendant's change of venue motion in a criminal trial; and

– Seeking a restraining order that affects freedom of speech.

This guide is intended to provide information. It is not legal advice. If you have questions about this information or your rights under the law, please seek the advice and counsel of an attorney.

SBCBA Eco-Tips

Check out these tips for ways you can make your office more earth-friendly!

 

Education

  1. Foster employee awareness of your environmental initiatives by developing an environment section of your employee handbook and providing training on your environmental initiatives as part of your firm’s employee orientation.

     2. Send out monthly eco-tips to encourage participation in your firm or company’s environmental initiatives and provide incentives to recognize exceptional performance and creativity from employees.

     3. Set up and label a Conservation Center in a high-traffic area of your office to educate staff about environmentally friendly practices. The center can be a bulletin board, bookshelf or poster and can include one or more of the following:

  • A copy of the SBCBA Eco-Tips;
  • A list of tips for the office and home;
  • A ride-share or carpool chart; and 
  • Books and pamphlets about conservation and preservation.

 

Energy Conservation

     1. Make sustainability a true part of your business practices by adopting change from the inside out.

  • Work with individual employees to determine how each can become more environmentally friendly in their current roles;
  • Set-up internal goals for employees or departments, as well as rewards for meeting those goals. Issue regular reports on the progress of those goals; and
  • Use the office’s commitment to reduce its carbon footprint to create a positive image for your business in mission statements, marketing and advertising campaigns.

   1.2 Reduce the amount of electricity consumed by computers in your office. For example, computers left on after hours result in 14.4 million tons of carbon dioxide emissions.

  • Set computers on timers that shut them down after 30 minutes of being idle.
  • Make sure all computers have and use screen savers.
  • Instruct everyone in the office to shut down all parts of their computer – including the monitor – when they leave for the day.

     2. Reduce the amount of electricity used in your office by cutting down on light usage.

  • Turn off lights in all rooms when not in use.
  • Install motion detectors in areas such as hallways, conference rooms, bathrooms and kitchens.
  • Replace older light bulbs with compact fluorescent light or light emitting diode bulbs.

   3. Stop using a screen saver.

  • Screen savers do not save energy, they save the screen from being permanently imprinted with an image.
  • Screen savers eat up lighting and processing energy.
  • Set screen savers to none or blank screen.

     4. Consider laptops: Consider buying laptops instead of desktops, as they generally use less energy and are more efficiently made.

     5. Consider office sharing: If you have a number of employees that don’t use the office regularly, consider assigning offices based on a schedule. You’ll save on utilities, equipment, furniture and more.

     6. Keep air vents clear of paper, files and office supplies. It takes as much as 25 percent more energy to pump air into the workspace if the vents are blocked.

 

Environmentally Conscious Purchases

     1. Save trees and reduce your carbon footprint by switching to 100% post-consumer recycled content paper for photo-copying and professional print jobs. The myth that recycled content paper is of worse quality or will get stuck in copiers and printers is just that – recycled content paper performs just as well and comes with the added benefit of being able to promote your “green” choice to customers and clients.

     2. To cut down on trash and packaging, buy your kitchen supplies – like sugar, creamer, and coffee – in bulk rather than in single-serving containers.

     3. Consider energy-efficient equipment when replacing appliances and computers in your office and home.

  • Visit Energy Star at http://www.energystar.gov/to find a wide array of energy saving products, including printers, copies, refrigerators and computers.
  • When replacing computers consider those that are rated highly by the Electronic Product Environmental Assessment Tool (EPEAT) by visiting http://www.epeat.net/. The website uses a set of criteria to help consumers compare the energy efficiency of various computers.

     4. Think about the impact of all the products you buy for the office, even those seemingly as innocent as hand soap. When purchasing dishwashing liquid, hand soap and automatic dishwashing detergent for use in office kitchens and bathrooms, choose those free of toxic substances including phosphates, triclosan, chlorine and/or other antibacterial ingredients.

     5. To help your office implement the many tips we've offered over the past several weeks, view a comprehensive list of Green Resources. The resources list where you can purchase green office products, includes:

     6. When considering what paper to purchase and use at the office, consider more than just if the paper is recycled.

  • Choose paper that is processed chlorine free.
  • Use unbleached and uncolored paper.

     7. When replacing office supplies that are broken or otherwise useless, consider choosing environmentally friendly options.

  • Staple free stapler;
  • Bulletin board made of recycled materials; and
  • Dry erase calendar.

 

Sustainable Practices

     1. Recycle your old computers or donate them to a local non-profit organization. Most major computer manufacturers offer recycling programs that make it easy to recycle or donate your old computers.

     2. Buy reusable coffee mugs for your employees or yourself and use them when you get your caffeine fix for refills in your office or the local coffee shop.

     3. Reduce the use of toxic products in the workplace.

  • Purchase unbleached paper towels and napkins for bathrooms and the kitchen/cafeteria.
  • Buy cleaners for bathrooms and the kitchen/cafeteria with low toxicity and high biodegradability or clean with natural products such as baking soda, lemon juice, white vinegar and club soda.

     4. Cut down on waste and disposables in your office and work toward recycling items you are no longer using:

  • Arrange for your ink cartridge supplier to pick up used cartridges for reuse and/or purchase remanufactured cartridges, rather than new ones, for laser printers.
  • Provide pitchers with filtered water rather than bottled water, to employees and visitors.
  • Donate old office equipment, computers and supplies. 

     5. Conserve water use in the office.

  • Install low-flow toilets and aerators in all sink faucets.
  • Post signs asking users to use as little water as possible.
  • Establish regular maintenance of sinks, toilets and other areas that use water to catch and repair leaks.

6. Save ink by altering your printing habits:

  • Avoid printing in color when you can and opt for black and white only; and
  • Use draft mode to print items in a lighter shade using less ink.

L.A. Superior Court to Shut Down Slew of Courthouses

News from the Recorder:

To Make Budget, L.A. Superior Will Shut Down Slew of Courthouses

Lawyers will find it hard to move personal injury cases along, Consumer Attorneys President Brian Kabateck said after being briefed on the court's plans, which include directing most PI cases into just two master calendar courtrooms.

Cheryl Miller

2012-11-14

SACRAMENTO — Los Angeles County Superior Court will stop hearing cases in 10 courthouses, shutter a dozen criminal courtrooms and cram many personal injury cases on to just two calendars, court leaders told a select gathering of lawyers in a meeting Wednesday.

Presiding Judge Lee Smalley Edmon confirmed Wednesday afternoon that the court is launching a major restructuring in the coming months to prepare for a 2013-14 deficit that could reach $80 million.

The targeted courthouses are in Huntington Park, Whittier, Pomona North, Malibu, West Los Angeles, South Los Angeles (Kenyon Juvenile), Beverly Hills, San Pedro (the main courthouse and Beacon Street annex) and Catalina. Edmon said the courthouses may stay open for limited functions, like court filings or settlement meetings. But trials and hearings once held in those locations will be moved elsewhere, she said.

"The difficulty I have with all of this is our court system was designed to be a neighborhood court system," Edmon said. "Unfortunately our budget has been cut so much that we're not going to be able to continue that level of service."

The closures and consolidating will lead to "a large number of additional layoffs," she said, although the exact figure and timing of those job losses hasn't been determined yet.

The large-scale closures come in response to four straight years of steep budget cuts and to Governor Jerry Brown's directive that trial courts spend down almost all of their local reserves starting in 2013-14. Los Angeles County Superior Court has lost 875 positions over the past four years due to layoffs, attrition and elimination of vacant jobs, Edmon said.

As part of the court's redesign, many personal injury cases will be sent to just two master calendar courtrooms in a single location to sort out all pretrial or settlement matters. Each of those judges is expected to have as many as 8,000 cases under his or her jurisdiction at any one time.

"If you have a matter that has to be heard … there's just not going to be the resources to quickly and adequately handle these matters," said Consumer Attorneys of California President Brian Kabateck, who attended the Wednesday morning briefing.

Court leaders and lawyers are still discussing ways to send complex or catastrophic civil cases to so-called independent courts that set their own calendars. No one is sure how those cases will be identified, however.

Lawyers "think all of our cases are catastrophic," Kabateck said.

Plans also call for shrinking the number of courthouses that hear specific types of cases. Small claims cases, now heard in 26 courtrooms, will be handled in just six court facilities across the county. Courthouses that handle landlord-tenant disputes will drop from 26 to five. The 24 courthouses that hear collections cases will shrink to just two. The court will also eliminate any remaining reporters in civil cases and reduce the number of courtroom assistants, Edmon said.

The planned closures and consolidations will affect 37 judicial officers and 279 court employees who handled 429,085 filings in the last fiscal year, according to the Los Angeles County Superior Court. Reassigned judges will be given work that they can do without courtroom staff, Edmon said.

CA Homeowner Bill of Rights

 

Governor Jerry Brown recently signed into law the Homeowner Bill of Rights to help struggling Californians keep their homes. This law’s objective is to avoid foreclosure whenever possible and prevent other negative effects of foreclosures on families, communities and the economy. This law will generally come into effect on January 1, 2013 and only pertains to first trust deeds secured by owner-occupied properties with one-to-four residential units, unless otherwise indicated. Some of the requirements of this law do not apply to smaller banks that, during the preceding annual reporting period, foreclosed on 175 or fewer properties with one-to-four residential units (CC2924.18(b)).

 

The full text of this law, also known as Assembly Bill 278 and Senate Bill 900, is available at www.leginfo.ca.gov.

 

In summary, the new law prohibits lenders from engaging in dual tracking, requires a single point of contact for borrowers seeking foreclosure prevention alternatives, and provides borrowers with the right to sue lenders for material violations of this law.  

 

A few highlights:

–          Cancelling a Pending Trustee’s Sale: A mortgage servicer must rescind or cancel any pending trustee’s sale if a short sale has been approved by all parties and proof of funds/financing  has been provided;

–          No Late Fees/Application Fees: A mortgage servicer cannot collect any late fees while a complete first lien loan modification application is under consideration, a denial is being appealed, the borrower is making timely modification payments, or a foreclosure prevention alternative is being evaluated or exercised;

–          Binding if Loan is Transferred: Any written approval for a foreclosure prevention alternative shall be honored by a subsequent mortgage servicer in the event the borrower’s loan is transferred or sold.

 

Please visit. www.leginfo.ca.gov to view the full text of the new law.

RENTER’S RIGHTS – FREQUENTLY ASKED QUESTIONS – GENERAL INFORMATION

Q. How large of a security deposit can a landlord require from a tenant?

A. If the unit is furnished, the landlord can require up to three times the monthly rent. If the unit is unfurnished, the landlord can require up to two times the monthly rent.

 

Q. When can I expect to get my security deposit back?

A. Within 21 days, a landlord is required to (a) return the security deposit to the tenant, (b) provide an itemized statement that explains how the deposit was spent, or (c) a combination of (a) and (b).  (Civil Code Section 1950.5)

 

Q. What types of charges may a landlord deduct from a security deposit?

A. A landlord may charge the tenant for the following reasons: cleaning, unpaid rent, and damage to the rental unit (beyond normal wear and tear).

 

Q: Can a landlord increase the rent?

A. If the lease is for more than 30 days, the rent cannot increase during the term of the lease (unless the lease provides for rent increases). If the lease is month-to-month, the landlord may increase rent if they provide you with proper notice in writing. A landlord must give at least 30 days’ notice if the rent is increasing by 10% (or less). A landlord must give at least 60 days’ notice if the rent is increasing by more than 10%. (Civil Code Section 8.27)

 

Q. For what reasons may a landlord enter an occupied rental unit?

A. California law provides for five different reasons a landlord may legally enter a rental unit:

1) In an emergency

2) When a tenant has abandoned the unit or moved out

3) To make necessary/agreed-upon repairs, decorations, alterations, or other improvements

4) To show the unit to prospective tenants/buyers/lenders or provide entry to contractors or workers who are to make repairs on the unit

5) If the landlord has a court order permitting entry

 

In all situations except the first two listed, the landlord must give the tenant 24-hour written notice before entering the unit.

 

Q. What makes a rental unit legally “uninhabitable?”

A. If a rental unit substantially lacks any of the following, it is considered uninhabitable:

1) Effective waterproofing and weather protection of roof and exterior walls

2) Plumbing system in good working order that is connected to a sewage system (includes hot/cold running water)

3) Gas facilities in good working order

4) Heating facilities in good working order

5) Electric system in good working order

6) Clean/sanitary buildings and grounds free from debris, garbage and pests

7) Trash receptacles in good working order

8) Floors, stairways, and railings in good working order

9) Contains lead hazards without containment

 

Q. What can I do if my unit is uninhabitable?

A. A tenant has five options if the unit is uninhabitable. Notice to the landlord regarding the problems must be given before exercising any of these options. It is suggested to provide notice in writing and wait at least 30 days for a landlord to remedy the problems.

1) Move out

2) Call attention to the problem by notifying local city code enforcement inspectors, health department inspectors, etc.

3) Repair the problem and deduct cost from rent (provide a copy of the bill with the rent)

4) Withhold rent (this is risky however and could result in eviction if the problem is not seen as serious enough or was tenant caused)

5) Sue for damages

 

If you believe that your dwelling unit is uninhabitable, please contact the SBCBA Lawyer Referral Service BEFORE using any of the above options. Speaking with an attorney will help insure protection of yourself and as well as your tenancy. (805) 569-9400.

               

Answers to Frequently Asked Questions Regarding Workers’ Compensation

Q. What is workers’ compensation?

A. Workers’ compensation is benefits that your employer is required by law to pay for if you have a work-related injury or illness. There are two main types of injuries:

1. One accident/event at work. This could include hurting your back in a fall or burning yourself while on the job.

2. Repeated exposures at work. This could include losing hearing due to perpetual loud noise or hurting your elbow from repeated motions.

 

Q. What should I do if I hurt myself while on the job?

A. First, report the injury to your employer immediately. If this injury has occurred due to repeated exposure, report it to your employer as soon as you learn/suspect if was caused by your job. Prompt reporting helps avoid frustrating delays in receiving benefits.

NOTE: If your employee is not notified within 30 days of the injury, this hinders your employer’s ability to fully investigate the claim and could result in lost rights to receive workers’ compensation benefits.

 

Second, if emergency treatment is required, get it! Be sure to tell your health care provider that this is a work related injury or illness.

 

Third, fill out a claim form (DWC 1) and give it to your employer. Your employer is required to give you this form within one working day after being notified of the injury or illness. This form opens your workers’ compensation case and is used to request workers’ compensation benefits.

 

Q. What types of benefits am I entitled to?

A. There are five basic benefits that workers’ compensation provides:

1. Medical care: Paid for by employer to help your recover from job-related injury or illness

2. Temporary disability benefits: Payments for lost wages if you are unable to do your usual job while recovering

3. Permanent disability benefits: Payments in you are unable to recover completely

4. Supplemental job displacement benefits: Vouchers to assist in payment for skill enhancement or retraining if you are unable to recover completely and don’t return to work for your employer.

5. Death benefits: Payments given to spouse, children or other dependants if you die due to a work related injury or illness

 

Q. My employer is asking to take part of my check to pay for workers’ compensation insurance? Can they do this?

A. No! An employer cannot request that you help pay the insurance premium. All employers are required to have workers’ compensation insurance. It is a portion of the price of doing business.

 

Q. Can my employer fire me because of my injury?

A. It is illegal for an employer to fire your or punish you in any way for having a work related injury or illness. It is also illegal for an employer to penalize you for filing a workers’ compensation claim.

————————————————————————————————————————————————————————-

The laws that govern the workers’ compensation system can be confusing. Retaining an experienced attorney who knows and works with the laws on a regular basis can result in a much less stressful experience.

 

If you have a work-related accident or illness and would like to discuss your case with a competent workers’ compensation attorney, please call the SBCBA Lawyer Referral Service at (805) 569-9400.

PERSONAL INJURY – FREQUENTLY ASKED QUESTIONS

 

Q. What is a “Personal Injury Case”?

A. Personal injury claims stem from physical or mental injury to a person due to the negligence or harmful act of another party.  There are a variety of different types of injuries that may be addressed in personal injury cases. Below, I have listed a few of the more common examples:

a. Broken bones

b. Disc injuries in neck and spine

c. Amputations and lost fingers/toes

d. Total or partial blindness

e. Head or brain injuries

f. Loss of hearing/taste/smell

g. Burns and scaring

h. Chronic pain

 

Q. How long do I have, from the time of the accident, to file a lawsuit?

A. In California, the statute of limitations for an adult personal injury case is two years from the date of the injury. Injured minors (younger than 18 years old) have until their 20th birthday to file a lawsuit or settle the case. If the defendant is a California government entity, you have six months to file a claim for damages.

 

Q. After I suffer a personal injury, what type of financial compensation is available?

A. Victims of personal injury are able to recover monetary damages for all losses and expenses that result from the accident. Examples of these damages are listed below:

                a. Lost wages

                b. Medical bills

                c. Property damage

                d. Pain & Suffering/Emotional distress

                e. All out-of-pocket expenses

                f. Mental anguish

                g. Embarrassment

                h. Loss of love & affection

 

Q.  If I am partly responsible for the accident, can I still collect for my injuries?

A. Yes! California has comparative negligence. This means that the fault of all parties involved is compared. The amount of damages given to the plaintiff will be reduced by the percentage of fault that the court assigns to the plaintiff. For example, if you were 40% responsible for an accident, you may still collect 60% of the value of the case.

 

Q. How do attorney fees work in personal injury cases?

A. Generally, personal injury attorneys accept cases on a contingency fee basis. This means that instead of paying an hourly fee, your attorney will be entitled to a percentage of the entire monetary recovery for the personal injury portion of the case. Standard fees usually hover around 33-40% of the gross recovery (this can vary greatly). However, it is typically the client’s responsibility to pay the upfront costs of pursuing their case.

 

If you feel that you have a personal injury claim and would like to speak with an experienced personal injury lawyer, call the SBCBA Lawyer Referral Service today! (805) 569-9400

Dying Without a Will or Trust – Do You Know the Consequences?

If a resident of California dies without a will or trust, this means that they die "intestate." Because the person did not leave instructions regarding how they wished their property to be divided, the laws of intestate succession determine who will inherit the estate.

 

The rules regarding intestacy laws are generally as follows:

1) If there is a surviving spouse and no children –> surviving spouse takes the entire estate

2) If there are children but no surviving spouse –> children take entire estate

3) If there are children and a surviving spouse –> surviving spouse takes one half of the estate, children split the second half of the estate

4) If there is no surviving spouse and no children –> parents take the estate

5) If there are no parents –> siblings and their children take the estate

6) If there are no siblings or their descendants –> grandparents and their children take the estate

7) If there are no grandparents or their descendants –> next of kin takes the estate

8) If there is no next of kin –> deceased spouses parents and their descendants take the estate

9) Lastly, if no heirs can be found, your estate will escheat. This means that the estate passes to the CA government!

 

The rules of intestacy are not perfect and many times they do not reflect the wishes of the deceased. These rules, among other things, ignore strained family relationships and prohibit long-term domestic partners from inheritance.

 

The only way to make sure that your estate is distributed according to your wishes, to the people you love, is to create a will or trust!

 

To be referred to an experienced estate planning attorney, and begin the process of making a will or trust, call the SBCBA Lawyer Referral Service! (805) 569-9400.

Govenor Brown Issues Revised 2012-13 Budget – Devastating Cuts to Courts

Govenor Brown released a revised state budget that, again, negatively targets the judiciary. Below is an excerpt from the proposed state budget:

Funding Courts Budgets From Alternative Sources

This year's budget restructures trial court funding, reducing General Fund support by $300 million on a one-time basis and requiring each trial court to use their available reserve. It delays court construction for a savings of $240 million and increases retirement contributions for state court employees. Altogether, these will result in $125 million in ongoing savings.

 

The Open Courts Coalition released the following statement:

Courts have already absorbed punishing budget cuts and this new round of cuts has called into question whether California courtrooms can perform their basic functions. The Open Courts Coalition and its over 200 participating legal associations remain committed to defending the branch from this financial assault and will continue to work as a unified voice for a statewide solution to the crisis.

Do you qualify for the Traffic Amnesty Program?

Check out the attached flyer to see if you qualify for a 50% reduction of the amount owed in traffic tickets! This program is run through the Santa Barbara Courthouse and will be available through June 30, 2012.

 

If you, or someone you know, needs legal assistance with a traffic matter, call the SBCBA Lawyer Referral Service today! We will help find a qualified attorney in Santa Barbara County to protect your interests. (805) 569-9400 or visit https://sblaw.org/need-a-lawyer/lawyer-referral-service.