Wrongful Death Lawsuit in California: The Basics

Wrongful Death Lawsuit in California: The Basics

A wrongful death claim comes about when a person dies as the result of a wrongful act or negligence of another person or entity. What exactly does this mean? How does it get handled? What are the steps? We will go over all the basics of a wrongful death lawsuit below with a focus on the state of California.

What is a Wrongful Death Lawsuit?

If a wrongful death lawsuit is filed in the state of California, it will be a claim filed as a civil lawsuit. This means it is brought to court directly by any survivors of the deceased person or by the personal representative of the deceased person’s estate. Fault expressed in these claims is solely in terms of money damages, which the court orders the defendant to pay the deceased’s survivors if the lawsuit is successful. A few examples of common causes of wrongful death claims include vehicular accidents, medical malpractice, and liability due to faulty products.

These claims differ from criminal cases for homicide. A homicide case is brought by the state and could result in the guilty party being penalized with jail or prison time. A family in California could bring a civil wrongful death lawsuit to court even if there is already a criminal case going forward.

Who Can File a Wrongful Death Lawsuit in California?

There are only certain people who are allowed to file a wrongful death lawsuit. The California statute specifically allows these following parties to bring about a wrongful death lawsuit in civil court:

  • The deceased person’s surviving spouse.
  • The deceased person’s domestic partner.
  • The deceased person’s surviving children.

If there are no surviving people in the deceased’s line of family, then it is possible for a wrongful death lawsuit to be brought on by anyone ‘who would be entitled to the property of the decedent by intestate succession.’ This means that the people able to claim a wrongful death lawsuit can include the deceased person’s parents or siblings who were dependent upon them while they were alive. Should the person filing the claim be financially dependent upon the deceased person, there are also the following people who are allowed to bring about a wrongful death lawsuit:

  • The deceased person’s ‘putative spouse’ and children of that spouse.
  • The deceased person’s stepchildren.
  • The deceased person’s parents.

All of these statutes for people able to claim a wrongful death lawsuit are in the California Code of Civil Procedure section 337.60.

What Are the Damages Available in Wrongful Death Lawsuits?

There are several different types of personal injury damages that are considered in a wrongful death lawsuit in California. The specifics in amounts will depend on all of the factors of an individual case. The damages are usually divided according to how they compensate the estate for losses that are associated with the death or the surviving family members for the personal losses that they suffered as a result of the death in the claim.

The losses that are most attributed to the estate will include:

  • Funeral and burial expenses.
  • Lost income, including potential income that the deceased person would have been expected to earn in the future (within reason).
  • Medical and hospital bills for the deceased person’s final illness and/or injury.

Losses that are most attributed to surviving family members will include:

  • Loss of anticipated financial support.
  • The value of household services.
  • Loss of love, community, affection, moral support, and guidance.

What is the Time Frame to File a Wrongful Death Lawsuit?

As with other types of claims, there is a specific time period in which a family can file a wrongful death lawsuit. This is known as a statute of limitations. In California, the law requires a wrongful death lawsuit to be filed within two years of the date of the decedent’s death. If the case is not filed in the state’s civil court system within those two years, the family will most always lose the right to file it at all. ***Special Note:   A Medical Malpractice Wrongful Death matter has a ONE year statute of limitations.

No amount of money will ever bring back your loved one or make up for the heartache and loss, but a wrongful death lawsuit can help with the finances surrounding the death, and in most cases is a welcome relief. With these basics in mind, if you believe that the death of a loved one was caused by negligence or a wrongful act, it’s important to contact an experienced lawyer that can answer more of your questions and help you take the steps necessary to start the process of your wrongful death lawsuit. If you have further questions about filing a wrongful death lawsuit in California, contact the Law Firm of Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez today!

Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC is a debt relief agency pursuant to 11 U.S.C. 528(a)(4) and assists individuals, families, and businesses file for bankruptcy relief under the Bankruptcy Code.  This website is a communication under California Rule of Professional Conduct 1-400.  No legal relationship is created by the use of this website and no legal advice is provided.  No guarantee or warranty is provided that your case or matter will achieve any particular result and testimonials and endorsements provided on this site do not constitute a guarantee, warranty, or prediction about your matter or case. This communication is made on behalf of Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC and DANIEL A. HIGSON, State Bar No. 71212 is responsible for its contents.  All information contained on this website may be factually substantiated by a credible source, including data from the United States Public Access to Court Electronic Records (PACER) system.  Detailed data and information is available on request.

Is Bankruptcy Your Best Option? Bankruptcy Chapter 7

Is Bankruptcy Your Best Option? Bankruptcy Chapter 7

Bankruptcy Chapter 7

Deciding whether or not to file for bankruptcy for your debt is a hard choice to face. In some situations, it may seem like the only way out of debt. Filing Chapter 7 bankruptcy will improve short-term quality of life, but it can also damage your future credit as well as your reputation. There are both good and bad outcomes when you file. Filing this chapter of bankruptcy provides for liquidation of nonexempt property and distribution of goods to debtors. Let’s go over the good and the bad results of Chapter 7 bankruptcy in more detail:

The Bad Outcomes or “Cons” of Bankruptcy Chapter 7

Here are some of the downsides of filing for Chapter 7 bankruptcy:

If you do file Chapter 7 bankruptcy, it will stay on your credit score for some time. It can remain on your credit report for up to a total of 10 years. This may make it harder to get approval for anything from a car purchase to a small bank loan.

You can lose property that you own that is not protected by bankruptcy exemptions, and that property could be sold by the bankruptcy trustee. You may also lose your luxury possessions if not protected by an available exemption.

You may lose all of your existing credit cards.

Filing for Chapter 7 bankruptcy may make it more difficult to get a mortgage if you do not already have one.

Making the decision to declare bankruptcy right now might make it harder to do so later should something worse come along. Example: If you complete a filing for Chapter 7 bankruptcy, you cannot declare Chapter 7 again for eight years. This eight-year countdown begins from the date you last filed.

Bankruptcy filing will not relieve you of your responsibility to pay alimony and/or child support.

Filing Chapter 7 bankruptcy will not eliminate most of your student loan debt.

You may still be obligated to pay some of your debts, such a mortgage lien, even after your bankruptcy proceedings have been completed.

If you file Chapter 7 bankruptcy for relief but have an excess of income at your disposal, the court may request you to convert your case from a Chapter 7 to a Chapter 13. Doing this would change your plan to be free from most debts within four to eight months to a plan that would require you to repay your debts over the course of three to five years.

The Good Outcomes or “Pros” of Bankruptcy Chapter 7

Now let’s go over some of the benefits of filing for Chapter 7 bankruptcy:

Even though a bankruptcy stays on your credit for years, the time to complete the process under Chapter 7 bankruptcy usually takes only 3-6 months. If you decide against filing for Chapter 7 bankruptcy when necessary, it could lead to missed debt payments, defaults, and lawsuits hurting your credit further. This situation may be more complicated to explain to a future lender than bankruptcy.

Most states have generous exemptions that allow you to keep a lot of what you own. Sometimes the exemptions allow more coverage to keep your property than you actually need. You also get to keep the salary you earn and the property you buy after you file Chapter 7 bankruptcy.

You might also be able to get new lines of credit within a time frame of one to three years after filing bankruptcy, but it may be credit with a higher interest rate.

There are lenders out there that specialize in lending to bad risks. This may seem like an unfair tag to put on someone who has taken a step in solving financial issues, but you can use one of these lenders if you need to.

Yes, you can only file Chapter 7 bankruptcy once every eight years, but you can always file a Chapter 13 if another issue hits you before that eight years is up. You can file a Chapter 13 four years after filing a Chapter 7.

Filing for bankruptcy will get rid of many of your financial obligations, including some Internal Revenue and Franchise Tax Board debt. However, keep in mind that only a family court order can suspend alimony or child support responsibilities.

If you have filed for bankruptcy, it will prevent your lenders from aggressive collection, meaning the daily phone calls will cease and the letters will stop arriving in the mail.

If you received a Chapter 13 discharge in good faith after paying at least 70% of your unsecured debt, the eight-year bar to file a Chapter 7 does not apply.

If you do not owe money on any type of debts that survive your bankruptcy, the amount as well as the number of debts that a bankruptcy court can relive you from paying can be unlimited.

Filing for Chapter 7 bankruptcy does not require that you need to have debts of any certain amount in order to file for relief. If even your case gets converted to Chapter 13, it can still improve your finances by giving you more time to pay off your debts. With Chapter 13, you get to keep all of your property as well.

Sometimes the best advice a bankruptcy attorney can give a client is not to file a bankruptcy. So be careful when hiring a bankruptcy lawyer who boasts about how many bankruptcy cases he or she files and/or ignores other possibilities for your situation.

Looking into bankruptcy options comes with many considerations, and you will need to look at every consequence to decide what is best for you and your assets. You should contact an experienced attorney to discuss your situation and learn more about how the bankruptcy laws can help you in your financial troubles. If you have more questions for bankruptcy in the state of California, check out Dan Higson’s Chapter 7 bankruptcy page or contact the Law Firm of Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez today!

Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC is a debt relief agency pursuant to 11 U.S.C. 528(a)(4) and assists individuals, families, and businesses file for bankruptcy relief under the Bankruptcy Code.  This website is a communication under California Rule of Professional Conduct 1-400.  No legal relationship is created by the use of this website and no legal advice is provided.  No guarantee or warranty is provided that your case or matter will achieve any particular result and testimonials and endorsements provided on this site do not constitute a guarantee, warranty, or prediction about your matter or case. This communication is made on behalf of Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC and DANIEL A. HIGSON, State Bar No. 71212 is responsible for its contents.  All information contained on this website may be factually substantiated by a credible source, including data from the United States Public Access to Court Electronic Records (PACER) system.  Detailed data and information is available on request.

21st Century Oncology Bankruptcy

21st Century Oncology Bankruptcy

The cancer treatment network known as 21st Century Oncology recently filed for Chapter 11 Bankruptcy. This comes after years of falling revenue for the company, as well as a long list of ongoing lawsuits. The 21st Century Oncology bankruptcy will have a significant impact on the company’s finances, but should not adversely affect the healthcare provided for people who use its services.

Company Overview

21st Century Oncology, based out of Ft. Myers, Florida, provides cancer-related treatments such as radiation, urology, pathology, and other types of cancer treatments at 179 locations across the country. These treatment facilities have a large presence in Florida, the Carolinas, Kentucky, Michigan, New Jersey, Rhode Island, and California.

Why Did 21st Century File?

Making the move to file for Chapter 11 bankruptcy could put a stop to multiple lawsuits against the company that are now sitting in federal court. The 21stCentury spokesperson, Steven Goldberg, said, “The company intends to use the Chapter 11 process to assist with resolving the pending litigation.” He went on to say, “Beyond that, I can’t really speculate specifically on what the effect or outcome will be.”

There were rumors of a possible bankruptcy filing for the company in the months prior, especially after they failed to make a $20 million debt payment back in November of last year. The company’s last public financial disclosure, also in November 2016, reported a net loss at $92.2 million during a nine-month period. 21st Century has more than $1.1 billion in long-term debt, and the company only reported an annual revenue of $1 billion last year. Most of that revenue came from their North American operations.

What Does This Mean for 21st Century Oncology?

21st Century Oncology has stated that its plan to restructure would reduce its debt by about half of its long-term obligations. It does not expect the process of bankruptcy to interfere with existing clients, appointments, or treatment schedules.

21st Century Oncology asked a judge in Manhattan to approve the full payment of all employees’ salaries and benefits within the bankruptcy. Going forward, the company’s primary lenders have also agreed to provide $75 million in cash that will allow the business to continue on as usual.

Even though there is no immediate plan to lay off its workers, the change in operational structure while going through the bankruptcy could ultimately have large implications for the company’s 4,000 global employees. Most of these employees live and work in Florida. The company will continue to monitor staffing needs to make sure they continually meet the needs of the business.

How Did This Happen?

The company’s recent troubles began and quickly grew when an unauthorized third party accessed 2.2 million patient records back in 2015. 21stCentury notified the patients months later and placed the blame of late action on an ongoing criminal investigation. Within weeks, the notified patients from all across the country began filing lawsuits, and those cases are still pending.

Not too long after that security breach (but unrelated to it), the company did pay a combined $54.5 million to settle two other federal investigations into alleged billing fraud. These cases came to light when persons within the company alleged the claims that 21st Century Oncology and its doctors had been billing insurers for tests that were not medically needed. Several of the doctors named in the suit separately paid out their own multi-million dollar settlements to resolve their parts in the investigation.

With all of the pending lawsuits from patients and the security breach, as well as the billing fraud cases in federal court, it is no surprise that the company choose to file Chapter 11 in hopes of at least keeping the business afloat. It is a sure bet that the creditors for 21st Century Oncology bankruptcy will take a loss, but this is a small hit in comparison to the outcome if the company would have just closed up shop.

If you want more information on bankruptcies, estate planning, and personal injury law in California, check out Dan Higson’s other blogs here.

Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC is a debt relief agency pursuant to 11 U.S.C. 528(a)(4) and assists individuals, families, and businesses file for bankruptcy relief under the Bankruptcy Code.  This website is a communication under California Rule of Professional Conduct 1-400.  No legal relationship is created by the use of this website and no legal advice is provided.  No guarantee or warranty is provided that your case or matter will achieve any particular result and testimonials and endorsements provided on this site do not constitute a guarantee, warranty, or prediction about your matter or case. This communication is made on behalf of Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC and DANIEL A. HIGSON, State Bar No. 71212 is responsible for its contents.  All information contained on this website may be factually substantiated by a credible source, including data from the United States Public Access to Court Electronic Records (PACER) system.  Detailed data and information is available on request.

How to Fairly Distribute Assets of an Estate

How to Fairly Distribute Assets of an Estate

Planning your estate is never easy, and you may have a lot of questions. From personal belongings to money to real estate, there are several steps you can take to ensure that your affairs will be in order for your family when the time comes to distribute assets. You must determine what to leave, to whom, and the best way to distribute those belongings. There are four basic methods of asset distribution:

  • Gift assets before your death.
  • Establish a trust during your lifetime.
  • Distribution of assets after death through a will.
  • Distribution of assets after death outside of a will.

Based on your unique financial situation, each method will have its advantages and disadvantages. It may also be possible to combine these methods in order to accomplish your goal. No matter what you decide to do, you should discuss your options of distribution with an attorney that is knowledgeable in estate law to ensure that everything is set up correctly.

Asset Distribution Options

Once you have made a decision on how to distribute your assets, your next step is to determine who your beneficiaries will be and how you want to leave them your property. This is a personal decision and only you can make it. After all, these are the people that are important to you.

To Have a Will or Not to Have a Will

Making a will is a surefire way to ensure that the people you wish to inherit assets from your estate will actually do so. If there is no will, then the law of intestacy will come in and dictate how your estate gets distributed. If this happens, there is a chance that the decisions made by a probate court may not reflect what you ultimately would have wanted. If you are interested in what happens to an estate after someone dies without a will, check out this blog that details the process for California.

Leaving Everything to Your Spouse

If you wish to leave everything you own to your spouse, there are a couple of ways to accomplish this that will depend on the laws of your state. The first possibility is joint tenancy. This can be a complex option, but might be exactly what your estate needs. Joint tenancy allows for the surviving spouse to inherit all property outside of the will. Holding property as joint tenants avoids the probate process at the time of your death. However, it does not avoid probate at the later time of death of the surviving spouse.

The second option is a type of will that has been termed the “I Love You” will. This is a simple document that leaves all assets to the surviving spouse and then, for example, to the surviving children. Some common language designed to accomplish this may be something like: “Upon my death, I leave my entire estate to my spouse, and upon the death of my spouse, our assets go to our children.”

But, neither a joint tenancy nor a simple will that leaves everything to your spouse will ensure protection to your children. This is because your spouse could either spend or lose all the property, or might remarry and lose control of the assets. These situations could leave your children with no part of your estate whatsoever.

For couples who have divided their property ownership equally between themselves, a complex will is a great option. In this case, the will directs property, typically real estate but not personal residence, to the children with lifetime use and enjoyment for the surviving spouse during his/her lifetime.

Children from a Previous Marriage

What if you have children from a previous marriage and you want to make sure part of or all of your assets go to them? You can have this done in several different ways.

You may use your will and be specific of which gifts or shares of the estate go to them. You should also be mindful that this type of gift will bypass your spouse and, in some circumstances, may lead to family conflict.

Another option is setting up a trust. Trusts are often the best way for cutting financial ties between a current spouse and grown children from another marriage. One type of trust that is often used is known as a qualified terminable interest property (or QTIP). A QTIP is used to transfer assets to children from previous marriages. What this basically does is provide support for your surviving spouse during his or her lifetime, but then controls the distribution of the estate after your spouse’s death.

If you worry that your spouse will outlive the assets set aside in the trust (QTIP), you are able to stipulate the annual income from the residual go to him or her. Setting up a trust like this with a residuary stipulation probably will not eliminate all the tension that can arise in the family once you are deceased, but it may ultimately help remove confusion.

Equal Distribution to Your Children

What would happen if you passed away without a will and had children but no surviving spouse? In most cases, your estate would be divided equally between your children. If this is not what you want, then you need to make a will that clearly states what parts or percentages of your estate should go to each individual. For example, you may have three surviving children but feel that one child has a greater financial need than the other two. In such a scenario, it would be possible to leave 50% of your estate to one child and 25% each to the other two.

Your Parents Survive You

If you want any of your assets to go to your parents, it is important to make a will that expresses this desire. If there is no will set up, the court will most likely transfer a third or half of the assets in your name to your spouse and the rest over to your children. Depending on the state you live in, half of your assets may go to your surviving parent if you have no children. If your will specifies which parts of your estate you would like to go to your parents, it would also be a wise choice to have alternate beneficiaries in case your parents do not survive you.

Distributing Personal Belongings

Often, after someone passes away, the separating and sharing of personal items can become an emotionally involved issue amongst potential heirs. Personal possessions like jewelry, dishes, or other belongings may carry individual significance to each of your loved ones. It is possible to create a will that takes these considerations into account and specifies which items will be handed down to particular people. Otherwise, this task is often left up to the surviving family to decide and may become an unpleasant and contentious process. Consider the personalities involved among your potential heirs before deciding to let them fend for themselves after your death.

No matter how you look at it, planning your estate is never an easy task. It is best to talk to an attorney who specializes in estate law. It is also important to discuss your options with your family. Doing so could ensure that there are no surprises later and maximize the possibility that everyone will be content with your wishes.

This blog has focused on the creation of a will, but there are several other important documents to set up in a comprehensive estate plan. If you want more information, schedule an appointment with Ventura Estate Planning Attorney Dan Higson or check out his California estate planning checklist here.

Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC is a debt relief agency pursuant to 11 U.S.C. 528(a)(4) and assists individuals, families, and businesses file for bankruptcy relief under the Bankruptcy Code.  This website is a communication under California Rule of Professional Conduct 1-400.  No legal relationship is created by the use of this website and no legal advice is provided.  No guarantee or warranty is provided that your case or matter will achieve any particular result and testimonials and endorsements provided on this site do not constitute a guarantee, warranty, or prediction about your matter or case. This communication is made on behalf of Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC and DANIEL A. HIGSON, State Bar No. 71212 is responsible for its contents.  All information contained on this website may be factually substantiated by a credible source, including data from the United States Public Access to Court Electronic Records (PACER) system.  Detailed data and information is available on request.

Basics of California Personal Injury Law

Basics of California Personal Injury Law

There are many types of injuries that can lead to a claim for personal injury, and every state has slightly different laws governing them. Here we will go over the basics of California personal injury law, including the time limit to file, compensation, and liability rules.

Statute of Limitations – Deadline to File

Each state sets a time limit in which the injured party can file the claim. There are different deadlines based on the type of claim being filed, and each deadline is called a statute of limitations.

In California, you are given a time limit of two years from the date of your injury to file a lawsuit for personal injury against the person you claim is responsible. Failure to file your claim in time may lead to your case being dismissed before you ever reach a trial on the facts of the underlying injury. If this happens, you will not be granted any compensation for your injury. It is very important to keep the statute of limitations in mind whenever you’re thinking about filing a claim.

If your injury was caused by the conduct of a government entity such as a city, state agency, or county, you have a reduced time limit of six months to file the claim. It also must stick to a unique and stricter set of rules.

Limits on Injury Damages in California

There are a few California laws that set limits on the types or amounts of damages that are deemed recoverable in a personal injury case. In most cases, California law prevents uninsured drivers from recovering any ‘non-economic’ damages after a car accident. This is true even if the other driver is completely at fault for the accident at issue. Non-economic damages include things like pain and suffering, physical impairment, inconvenience, and disfigurement.

There is one major exception to this rule limiting non-economic damages. The uninsured driver would be able to claim non-economic damages if he or she is in an accident where the at-fault driver was impaired or under the influence of drugs or alcohol.

Along with the non-economic damages law outlined above, California also caps payment for non-economic damages in medical malpractice lawsuits. This is law is known as the Medical Injury Compensation Reform Act (MIRCA), and the maximum payout in a medical malpractice case is $250,000.

Shared Fault Laws in California

In some cases of personal injury, the defendant may argue that you are actually at least partially at fault for causing the accident that creates the basis for your claim. If it turns out that you do share a portion of the blame for the accident, it will affect the total amount that you are compensated from the other party.

In cases of shared fault, the state of California goes with a ‘pure comparative negligence‘ rule. This means that the amount of compensation you receive is reduced by an amount that is equal to the percentage of fault for the accident. For example, if the court determines that you are 25% at fault for an accident, and damages are estimated at $100,000, you would only receive $75,000. The remaining $25,000 represents the percentage of fault that is attributed to you.

Courts in California are obligated to follow this rule while hearing injury lawsuits that make it to trial, but if you deal with an insurance adjuster outside the court, they could raise the issue of the comparative negligence rule while discussing settlements. In this case, you are able to negotiate what the impact of the rule should be on the claim. In this case, having an experienced personal injury lawyer like Dan Higson on your side could help you get the compensation you deserve.

“Strict” Liability on Dog Bites

California has a very specific set of rules concerning injuries caused by dog bites. For this kind of personal injury case, the owner is considered to be ‘strictly liable.’ This means that the owner of the dog is always responsible for their dog’s bites regardless of whether the owner did anything wrong. In other words, no amount of fault or negligence on the part of the owner needs to be shown in dog bite cases. In the event the dog bite took place in a public location or while the injured person was lawfully in a private place, the dog owner is completely liable, even if the owner doesn’t know of any previous aggressive tendencies of the dog. If you want more information on California dog bite cases, check out Dan Higson’s other blog here.

Personal Injury Resources

Here are several resources for more information for California personal injury claims:

Knowing these basics of personal injury law in California will help you as you set out to file your claim or prepare to defend against a personal injury case. Before you file, you need to make sure that you have a good case, and that you file it within the statute of limitations. There are many factors that can help or hurt your case, so it’s very helpful to get professional legal advice. Contact the Law Firm of Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez for help with your personal injury case. 805-644-7111

Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC is a debt relief agency pursuant to 11 U.S.C. 528(a)(4) and assists individuals, families, and businesses file for bankruptcy relief under the Bankruptcy Code.  This website is a communication under California Rule of Professional Conduct 1-400.  No legal relationship is created by the use of this website and no legal advice is provided.  No guarantee or warranty is provided that your case or matter will achieve any particular result and testimonials and endorsements provided on this site do not constitute a guarantee, warranty, or prediction about your matter or case. This communication is made on behalf of Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC and DANIEL A. HIGSON, State Bar No. 71212 is responsible for its contents.  All information contained on this website may be factually substantiated by a credible source, including data from the United States Public Access to Court Electronic Records (PACER) system.  Detailed data and information is available on request.

California Dog Owner Liability

California Dog Owner Liability

Imagine that you are out walking along the beach with your pup, when a jogger runs up beside you and your dog gets spooked. Your normally calm dog leaps out and snips at the ankle of the jogger. What happens now? In this blog, we will go over a few things you need to know about dog owner liability in California. From the state’s statute of limitations to the defenses a dog owner may use if faced with a claim, it’s good to know the legal basics when you own a dog.

California’s Statute of Limitations for Dog Bites

Each state has its own statute of limitations governing the time period you have in which to file a claim for personal injury in civil court. For the state of California, that statute of limitations is two years. Since a dog bite is considered a personal injury, the injured party has a time frame of two years after the incident with the dog occurs to file a claim. If the claim is filed after two years, your case will likely not be heard.

California Dog Bite Statute

The California state civil code says that the owner of any dog is liable if:

  • Damages were caused by a dog bite; and
  • The injured person was in a public place; or
  • The injured person was lawfully on private property.

This statute does create an exception, however, for those who are injured by a dog while said dog is carrying out police or military work. In order for California’s dog bite statute to apply, the injury must have occurred from a dog bite rather than from some other action of the dog.

Let’s look closer at the rules surrounding non-bite injuries caused by dogs. Just because an injury wasn’t caused by a dog bite, does not mean you are off the hook as the dog’s owner. For example, maybe your dog caused an injury after it jumped up and scratched another person. Under these circumstance, there are California negligence rules that could allow the injured party to say that you, as the dog’s owner, failed to take reasonable steps to secure the dog from jumping on the other person.

While most dog owners are civilly liable for injuries caused by their pups, there are situations where more severe criminal charges could be filed. If you fail to give your contact information to someone who you know was bitten by your dog, or if you fail to restrain a dog known to attack or trained to fight and it bites someone causing serious injury or death, you could be at risk for legal consequences. These are rare cases if you are a responsible dog owner, but beware that criminal consequences can arise under certain circumstances.

Strict Liability State

When are you legally liable for your dog’s conduct? Each state will handle the liability of a dog bite differently. Some states are “negligence-only” states, while most are “strict liability” states. California is one of the states that falls under the strict liability ruling. This means that a dog owner cannot claim that he/she had no idea the dog would act out in an aggressive way as a way to get out of liability for the harm caused by the dog. Dog owners are held liable even if the dog has never bitten before or shown any hint of aggression in the past.

On the flip side, if you are the person who was bitten by a dog, under this strict liability rule, you only have to show that you were out in a public place or lawfully on private property when the bite occurred in order to file a claim. You do not have to prove that the owner knew the dog would bite or did not take proper steps to prevent the bite from occurring.But, in situations where the injury occurred from something other than a bite, the claimant will have to show that the owner was negligent in supervising their dog such that it led to the injury complained of.

Defenses Against Dog Bite Liability

The most obvious defense against a personal injury dog bite claim would be that the injured person was trespassing on private property. Remember, California requires that the injured person prove they were in a public place or lawfully on private property when the incident occurred. If the injured person was trespassing on private property, they would be unable to establish liability.

Military and government agencies also have two possible defenses. First, there is no liability if the dog was carrying out its duties as a military or police dog when the bite occurred, or if the person provoked the dog to attack. These defenses only apply if the dog was carrying out specific duties its job, and there is specific paperwork that is filled out by the police and military when incidents like this occur with their working dogs.

Overall, it’s important to be a responsible pet owner and make sure your dog is secure while in public. Owners should also make sure that those around them are aware that the dog is present and warn them not to approach it if the owners think an incident might occur. It’s easy to enjoy your pet while also being aware of and avoid the circumstances that could upset or provoke your dog into injuring someone.

Need more information on dog bite laws in California? Check out Dan Higson’s page here. If you need legal help for a personal injury claim, including for dog bites, contact the Law Firm of Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez.

Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC is a debt relief agency pursuant to 11 U.S.C. 528(a)(4) and assists individuals, families, and businesses file for bankruptcy relief under the Bankruptcy Code.  This website is a communication under California Rule of Professional Conduct 1-400.  No legal relationship is created by the use of this website and no legal advice is provided.  No guarantee or warranty is provided that your case or matter will achieve any particular result and testimonials and endorsements provided on this site do not constitute a guarantee, warranty, or prediction about your matter or case. This communication is made on behalf of Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC and DANIEL A. HIGSON, State Bar No. 71212 is responsible for its contents.  All information contained on this website may be factually substantiated by a credible source, including data from the United States Public Access to Court Electronic Records (PACER) system.  Detailed data and information is available on request.

Managing Money In Old Age

Managing Money In Old Age

As people get older and ease into retirement, there are always finances looming overhead. It is also crucial to update your estate plan at this time, or establish one if you have yet to do so. What do you need to do to manage your finances most effectively for retirement, and when do you need to start thinking about it? Here are a few ideas that will help you manage your money in the best way possible as you get older.

Keep it Simple

Take a long hard look at all of your financial accounts. Ask yourself if you still need each account or if it is something that you can roll into another account or get rid of completely. A good example of this is if you have old 401Ks from several different employers. Rolling them into a Roth IRA or a traditional IRA could be a good option. Keeping things like this on one taxable account instead of several will help make your finances easier. This will reduce mistakes on your financial and tax papers.

There may be some cases where you need an extra account. For example, you might want to keep an emergency fund or investment for your kids separate. This is fine, as long as you keep in mind that it will make your finances a little more complex.

To further help you simplify, set up direct deposit for regular income, such as social security checks, to go into your bank account. Not only will this keep you from needing to go to the bank as often, but it will ensure that your money gets where it needs to go with less chance of human error.

The fewer investment accounts and bank accounts you have open, the less likely you are to be a target for fraud. It will also be easier to detect if you are a victim of fraud if you only have a few accounts to oversee. You need to make a master list of all your accounts once you have them in order. In the event someone has to help you with your finances, or you no longer have the capacity to handle them yourself, a master list will be very helpful.

A Helping Hand

Once you have all of your accounts simplified, you may want to consider finding someone you can trust to help you with your finances. The first step is to make sure your spouse is involved and you are both on the same page. Is there another family member or friend you trust? You can also hire a financial advisor if you want to steer clear of extra family involvement. Getting an extra person involved in your finances does not mean you need to turn total control over, it is just an extra set of eyes to make sure there is no suspicious activity. It also helps this person understand how you run and control your finances should the time come where they need to fully take over the responsibility.

Some families prefer the option of hiring a money manager so that they can spend time with their family members and enjoy their company while not stressing over the finances. If you decide to use an outside person’s help, you need to make sure they are qualified in money managing and finances. There is no regulation on this, so you need to do your research before giving out all of your information. The American Association of Daily Money Managers offers certification for money managers that requires a criminal background check and a written exam. You can go to the website and search for money managers that have this certification before making a final decision.

Estate Plan Ahead

There are several steps to take as you plan ahead for your finances. The idea is to plan all of this out well before you are incapable of managing your own finances. While planning for the worst may be a hard thing to do, it is necessary for everyone as they get older. A good place to start is by setting up a durable power of attorney.

Have a durable power of attorney written up with a person that you trust. As you continue forward with your plans, your trusted person will have full control over your finances should you become incapacitated or otherwise incapable of handling it on your own. While you still retain full capacity to make decisions, this type of power of attorney lets you change your agent or revoke the document entirely whenever you wish.

There are many other steps to take for proper estate planning. Check out our other blog here that goes over the most important documents required for a good estate plan in California.

If your finances are placed in the wrong hands, this could lead to abuse of your estate. It is best to consult an attorney that is well studied in elder law as you write up the durable power of attorney, so you can make sure you are safe from exploitation. The National Academy of Elder Law Attorneys is a great website to visit to find a specialized attorney within your area. If you need help with your estate planning in the Ventura County area of California, contact the Law Firm of Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez. We have handled thousands of estate plans, and we know how to help set up your documentation and keep them safe.

Final Expenses

Having a will and testament is very important for any estate plan. Your will makes it so that there is no question within the family about how your financial assets will be handled when the time comes. It is possible to write this up yourself, but it’s better to have an attorney help. That way, you can make sure there are no unanswered questions and your wishes are carried out just the way you want them. If you’re interested, you can check out this blog to find out what happens when someone dies without a will in California.

Make sure to set up accounts for your long-term care and funeral costs. This could be a specific savings account that you deposit into, or it could be something built into your life insurance policy. Having this in place lessens the burden for you and your family.

Simplifying your accounts and getting all your finances and estate planning documents in place makes your elder years more enjoyable for you and your family. While at first it can seem scary and confusing, just imagine how much worse it would be to sort it all out when you are no longer able to do so on your own and your family would have to get involved. If in doubt, don’t hesitate to find financial and legal assistance to make sure that everything is correct and exactly how you want it. Proper estate planning is key, and the sooner you start to simplify, the better.

Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC is a debt relief agency pursuant to 11 U.S.C. 528(a)(4) and assists individuals, families, and businesses file for bankruptcy relief under the Bankruptcy Code.  This website is a communication under California Rule of Professional Conduct 1-400.  No legal relationship is created by the use of this website and no legal advice is provided.  No guarantee or warranty is provided that your case or matter will achieve any particular result and testimonials and endorsements provided on this site do not constitute a guarantee, warranty, or prediction about your matter or case. This communication is made on behalf of Hathaway Perrett Webster Powers Chrisman & Gutierrez, APC and DANIEL A. HIGSON, State Bar No. 71212 is responsible for its contents.  All information contained on this website may be factually substantiated by a credible source, including data from the United States Public Access to Court Electronic Records (PACER) system.  Detailed data and information is available on request.

Retail Apocalypse: Retail Stores Closing and Filing for Bankruptcy

Retail Apocalypse: Retail Stores Closing and Filing for Bankruptcy

With the shift of a lot of shopping going to the Internet, retail chains are struggling. Many have recently filed for Chapter 11 bankruptcy, and there are an unprecedented number of retail stores closing across the U.S. It’s easier to log onto a website and shop than it is to go into a store and look around. There is more convenience in online shopping. You can be comfortable at home, and they are more likely to have the style and size you are looking for. So how will any of these retailers hang on to their in-store customers? How will they survive the online shopping boom? Some of them wont, and we are going to take a closer look at this problem.

Stores Aimed at Teenage Shoppers

Many of the recent struggling retailers are those like Wet Seal and The Limited. These brands are targeted at teens and are an in-the-moment brand. Young shoppers won’t have an extended loyalty to these stores as they get older. Over the course of two years, Wet Seal had a staggering loss of $150 million. The company filed Chapter 11 bankruptcy and closed more than 330 stores nationwide in 2015. In January of 2017, The Limited’s women’s chain also took a hit from online shopping, closing all 250 of its remaining stores. In February, Wet Seal filed for bankruptcy again and also closed the rest of its stores.

Abercrombie and Fitch has also been hurt by these in-the-moment shoppers, with fast fashion stores like H&M coming out on top. The chain had to close 60 stores at the beginning of 2017. To keep customers coming, A&F took a new approach with more customer engagement. By creating a fashion runway with mannequins in the middle of the store and allowing customers to change the lighting in the dressing rooms, A&F are hoping to keep the customers coming. This is a new fast way of customer engagement, and in the instant gratification shopping age, this idea just might work.

Major Retail Chains

Retailers aimed at teen shoppers are not the only stores feeling the effects of online sales. JC Penney, once the go-to retailer for middle America, plans on closing 150-300 stores nationwide in 2017. Under a former executive for Home Depot, Marvin Ellison, it appears the retailer most known for apparel sales is attempting to broaden its appeal. Imitating stores like Sears, Roebuck & Company, JC Penney is opening more showroom stores for appliances, custom blinds, and flooring options. This may be one way to keep the retailer going as they try to maintain fewer retail stores and build up a home improvement side to the business. Only time will tell if this works.

Sears was one of the first retailers to feel the pull of online shopping starting a over a decade ago. Sears and its sister discount store, Kmart, closed 130 stores in 2016 and are set to close an additional 150 this year. Kmart has a history of financial struggle. It emerged from bankruptcy protection in 2003, and merged with Sears around that time. It will be interesting to see if retailers that are going a new route, like JCP, will hurt Sears even more as they increase in overlap.

American retail icon Macy’s is also set to take a punch from online shopping this year as it is geared to close 100 stores. It is also selling some of its prime locations in hopes of keeping a profit off of a few of its brick and mortar stores. It’s clear that Macy’s will need to revamp its presence, but this could take years.

Retailers for Specific Shoppers

It’s not just major retailers that are hurting, as businesses geared at specific demographics are closing shop as well. Children’s Place is planning to close 300 stores by 2020. Knowing this is coming, the retailer has struck a deal with online powerhouse Amazon.com to sell its clothing online while using Amazon as a replenishment program of sorts. By closing these stores, Children’s Place will attempt to boost inventory production and connect with a larger audience of internet shoppers. This seems to be a good option for them, as parents are busy, and online shopping is easier than dragging your kids through the mall to shop for clothes.

Another retail-specific store that did not hold up well to Internet shopping is RadioShack. The electronics seller closed 552 stores this spring. Websites like Amazon.com and NewEgg.com have become a hub for electronic consumers, and RadioShack could not handle the loss of customers. If you want to read more about RadioShack’s long history and current struggles with bankruptcy, check out a more in-depth blog on the topic here. Other electronics-based retailers like Circuit City also fell victim recently.

The Future of Retail

What does this all mean to the U.S. retail store market? Some stores, like Abercrombie and Fitch and Children’s Place, have started making changes to try to keep up. Others have already failed.

The unprecedented amount of brick and mortar retail stores closing over the past few years reveals a change in technology and society’s views towards shopping. It shows that we are now in a time where consumers care less about brand loyalty and more about instant gratification. Yes, you still need to wait for your purchase to arrive in the mail, but the consumer knows it’s on its way. The product has been purchased. No walking the mall looking for the right dress, no needing to travel to another store to get that shirt in the right size, and no need to return to the store when that Bluetooth speaker is shipped from another location. All these things can now be done from the comfort of your own home.

Attorney Dan Higson can help with your bankruptcy case, and can answer any questions you have about Chapter 11, Chapter 13, and Chapter 7 bankruptcies. Contact Dan today at 805-644-7111!

What to Do with your Estate Planning Documents

What to Do with your Estate Planning Documents

If you have all of your estate planning documents in order, great job! You’re ahead of many other people who haven’t gotten around to it yet, and your family will have the support and information they need if something happens to you. If you still need to set up some documentation in California, take a look at this checklist to help get you started.

Once your estate planning documents are ready, there’s another crucial step to follow. You need to find a safe place to store them and let your family know how to access them. If you lock the only copy of an important document in a box and hide it under some junk in the attic, your family might not be able to follow through with your instructions when the time comes. The result could be a mess of stressful arguments and litigation.

If no one can find a copy of your last will and testament, the law usually presumes that you destroyed or revoked it. If an older copy is found, it might be used instead. If no version is found, California Intestate Law will determine who is entitled to your property for you. These results might vary considerably from what you had planned.

In 2016, BMO Wealth Management polled 1,008 Americans about the state of their estate planning documents. Only one third of them responded that their heirs knew where the documents were kept, and only a tenth of them had given their heirs a copy! Let’s improve these statistics by making smarter decisions with our important legal paperwork.

Image courtesy of BMO Wealth Management.Secure the Originals

It’s crucial to keep the original copies of your estate planning documents safe. The court may not accept digital or paper copies of the originals, especially in the event of a dispute. Many states also won’t accept copies of healthcare proxy and power of attorney documentation.

Store an original document in its own marked, sealed envelope. This will keep pages from being misplaced or mixed in with other paperwork. A great place to keep these envelopes is in a fireproof, locked safe within your own home. You can let your attorney or bank store them for you, but these aren’t the best options for emergency paperwork that your family might need at a moment’s notice, such as medical proxy documents. State laws and bank policies affect who can access your bank box, even after your death, so make sure that the important documents can reach the family members who need them without requiring court orders.

Provide Copies

Several people should have access to copies of your estate planning documents. Your financial and legal advisors should each have a copy, including your accountant and attorney. These people play a neutral role in your decisions, and can give you and your family good advice, such as when your documents need to be updated. You should also give copies to trusted members of your family, particularly the ones who are listed within the documentation. If you don’t trust them with copies, you need to at least inform them about the location of the originals.

Disclose the Location

In addition to your spouse, you must disclose the location of the original estate planning documents to certain other people. Again, your accountant, attorney, and trusted family members should all be aware of the originals’ locations. This will ensure that the information is available and the documentation can be put into the right hands in the case of an accident that affects both you and your spouse. Also make sure that your close family knows the safe combination, key location, and/or contact information for your attorney so that they can access the documents in a pinch.

Update When Necessary

Depending on how your circumstances change over time, an outdated set of estate planning documents can be almost as bad as no documentation at all. Make sure that you update your will, power of attorney, and other important documents when a major life change occurs. After changes are made, destroy the old documents so that no confusion occurs over your current wishes. You also need to track down and make sure that every copy is destroyed and replaced by the updated version. If you change who you use as a financial or legal advisor, make sure that your new professionals have current documents and your family knows who to contact.

Does your family know what to do in case you have an emergency? Are the originals of your estate planning documents safe and secure? Does each person who needs a copy have an up-to-date version and know how to access the originals when necessary? If you said no to any of these questions, it might be time to reconsider how you are handling your important documents.

At the Law Firm of Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez, we have handled thousands of estate plans, and we know how to keep your documents safe! We catalog and store your original documents in a fireproof location. We provide an organized copy of your estate planning documents, together with information on what to do when the time comes to use these documents. If you would like more information on how an estate plan can help your loved ones when you are gone, or have estate plan questions in general, call Dan Higson today at 805-644-7111!

Accidents with an Uninsured Driver in California

Accidents with an Uninsured Driver in California

No matter how carefully you drive, accidents happen. You can’t control every factor around you, such as road conditions and other drivers. The State of California requires that everyone who operates a vehicle must have proof of financial responsibility, such as automobile liability insurance. However, studies by the Insurance Research Council have shown that as many as 1 in 7 drivers are uninsured. Car insurance is supposed to help cover the costs of medical and repair bills, but what happens when there’s an uninsured driver involved?

California Insurance Requirements

There are liability insurance requirements for all private passenger vehicles in California. The minimum requirements follow a 15/30/5 arrangement by covering:

  • $15,000 for injury or death of a single person.
  • $30,000 for injury or death of multiple people.
  • $5,000 for property damage.

An at-fault driver is liable for any claims that exceed these numbers. It’s important to choose the right insurance policy for you when deciding whether or not to stick with the minimum requirements. The California Low Cost Automobile Insurance Program provides a source of relatively cheap insurance.

If you want another option, there are other sources of proof of financial responsibility, such as:

  • $35,000 cash deposit to the California Department of Motor Vehicles.
  • $35,000 surety bond from a company licensed for business in California.
  • A certificate of self-insurance from the DMV.

Uninsured Drivers and Non-Economic Damages

Uninsured drivers in California are barred from receiving compensation for non-economic damages when he or she is the victim of a motor accident. Non-economic damages include:

  • Disability
  • Disfigurement
  • Pain and Suffering
  • Decreased Quality of Life
  • Loss of Wages

The only exception to this rule is if the at-fault driver was under the influence of drugs or alcohol at the time of the accident and was convicted of a DUI.

Uninsured Motorist Coverage

If you are in a collision with an uninsured driver, there are several possible ways to receive compensation:

  • Collision Coverage
  • Medical Payments Coverage
  • Health Insurance
  • File a Lawsuit
  • Uninsured Motorist Coverage

Although you are not required to have Uninsured Motorist Coverage in the State of California, it comes as an option with most insurance. It will help pay your medical bills, economic expenses, lost wages, and non-economic damages in the case of an accident with an uninsured driver. Uninsured Motorist Coverage takes the place of the liability coverage that should have been the at-fault driver’s responsibility. The coverage often has the same limits as regular insurance, but you should check your policy to make sure.

In California, up to 70% of all auto accidents are caused by an uninsured driver. Yet the insurance industry continues to advise their insured members to purchase inadequate uninsured motorist coverage. For many policies, the additional premium for adding $1,000,000 in uninsured motorist coverage is minimal. If you are injured in a car accident due to the negligence of the other driver, that driver will most likely not be uninsured or have a minimum insurance policy.

Bottom line: Get substantial Uninsured Motorist Coverage on your auto insurance policy. It may cost you as little as $30 to $50 dollars per year. It is the best investment you will make, and your insurance company probably won’t tell you about it without prompting.

Making a claim with Uninsured Motorist Coverage is different than a normal claim. Your relationship with the insurance provider changes. You must negotiate a settlement as if you were dealing with another person’s insurance. Because of this, it is a good idea to have an experienced personal injury lawyer represent you in this situation.

The process of filing an insurance claim involving an uninsured driver can be complicated and stressful. Insurance adjusters may underestimate the value of compensation you deserve for injuries and damages. If you are looking to negotiate with an insurance provider after an automobile accident or have other questions concerning a personal injury case, call Dan Higson today. And make sure you get Uninsured Motorist Coverage on your auto insurance immediately!