Other Civil Litigation

WRONGFUL DEATH:

A wrongful death claim arises from the death of an adult or a child which is caused by the negligence of another. The claimants in such a case are the deceased person's surviving dependents or beneficiaries, who are then entitled to bring a claim or lawsuit against those who are responsible for causing that death. Wrongful death cases can arise from personal injury claims, automobile accidents, or medical malpractice when the negligent or wrongful injury causes or directly results in death to the person injured. They are normally handled on the same contingent fee percentage bases as the identical types of cases where the injury does not cause death.

The types of damages which are recoverable will vary, depending on the facts of the case.

The statute of limitations in California for a wrongful death case is only one year from the date of death. Thus, the two year limitations period for a personal injury case from the date of injury will be shortened to one year from the date of death if the person dies from their injuries. 

BUSINESS DISPUTES AND LITIGATION:

Business disputes and litigation can arise in a variety of matters and subject areas.   They commonly result from a contract dispute or claim of breach of contract, although they can also involve other legal issues or disputes.

As with other types of cases, these contract matters are also subject to statutes of limitation which limit the amount of time between the date the contract was breached and the date by which a lawsuit must have been filed.  In contract cases, these deadlines vary depending upon the type of contract involved and the legal theories used.  They include:

• Two Years: for breach of a verbal contract or agreement
• Four Years: for a breach of a written contract, for breach of warranty, and for book accounts and sales of goods
• Three Years: for a claim of fraud

Legal cases can be complex and may well also involve other legal theories and potential defenses.  Large legal books are written about contract law and various forms of business disputes, so a thorough discussion of this topic cannot be provided here.  It is important for you to contact a skilled and experienced attorney who can guide you through this area, and who can also recommend steps you can take to either solve such a dispute, or suggest what you may need to do to improve your chances to succeed if the matter proceeds into litigation.

Business disputes and litigation are normally handled on an hourly fee basis, together with payment by the client of the expenses incurred while the matter is being handled for you.  A trust retainer is normally required to be applied toward fees and costs incurred as well.  The retainer should be deposited into the attorney's trust account until the fees are earned, or the costs have been actually incurred.

Many contracts contain an "attorney's fees" clause which entitles the party who prevails in a dispute or lawsuit under that contract to recover their reasonable attorneys' fees and costs incurred in that matter.  California law requires that such a clause will apply to whoever the prevailing party is and that the entitlement to recover fees and costs is not limited to the party who the contract may state is entitled to recover them.

Our current hourly rates are $400 per hour for cases of this type.  Our trust retainers are calculated to represent the approximate fees and costs expected for a typical month of litigation.  Each month's fees and costs incurred for that month are billed against that trust account balance and we pay our monthly statement from those funds.  Our client then sends us the same amount of funds to pay that month's statement, which are then deposited into the trust account to replenish it back to the original amount.  This creates a replenishing trust account and permits us to devote our full attention to your matter without distractions over payment for services rendered and advances for anticipated case expenses.  Our policy is that all funds remaining in your trust account are promptly returned to you after your case is concluded and all fees and final costs have been fully paid.  We also provide our clients with detailed monthly account statements for fees and costs incurred which you will receive around the first of every month.

REAL ESTATE LITIGATION & DISPUTES:

There are also a large variety of areas in which these kinds of disputes arise.  Commonly, they involve home sales/purchases or claims of defective construction.  They can also involve landlord-tenant disputes in residential or commercial properties.  Real estate fraud is another area.  Real estate disputes frequently also involve contract issues and claims similar to those encountered in business disputes and litigation may have the same statues of limitation discussed above if breaches of contract or fraud issues are involved.
 
 Real estate disputes and litigation are normally also handled on an hourly fee basis, together with costs incurred.  A trust retainer is commonly also required.  We handle these cases on the same fee and trust basis described above for business disputes and litigation.

For residential sale/purchase disputes and litigation, it is noteworthy that many of the California Association of Realtors’ purchase contracts now used by real estate agents have several clauses which apply specifically to disputes and litigation.  You should check the contract which applies to your dispute to see if these clauses were used or initialed:

Clause 20:  “Liquidated Damages”

If both the Buyers and Sellers initial this clause, the initial deposit paid with the offer may be retained by the Sellers if Buyers default in the purchase.

Clause 21:  “Dispute Resolution / Mediation”

This clause provides the alternatives of mediation and/or arbitration for the resolution of disputes between Buyers and Sellers.  Significantly, unless excluded by clauses 21C or 21D, mediation is mandatory before being able to resort to arbitration or court action.  The penalty for non-compliance is the contractual removal of the right to recover your attorney’s fees, even if they would otherwise be available to you in that action.

Clause 21B:  “Dispute Resolution / Arbitration”

If both Buyers and Sellers initial this clause, they agree that all disputes between them must be resolved only through binding arbitration, unless otherwise excluded by clauses 21C or 21D.  An arbitration award entered under that clause may be enforced by later entry of judgment.  Acceptance of this binding arbitration clause also gives up your rights both to litigate your claim, and to have appellate review of any result reached.

Clause 25:  “Attorney’s Fees”

This clause entitles the prevailing Buyers or Sellers to recover their reasonable attorneys’ fees and costs from the non-prevailing party in any action, proceeding or arbitration arising out of that Purchase Agreement, unless excluded by Clause 21A.

There are many variations in real estate dispute and litigation which preclude a detailed discussion of this legal area here.  Please use the contact us information to reach us so that we can discuss your potential case in greater detail with you.