Filing Late Government Claims (Tort Claims) in California

By Michael Reiter, Attorney at Law

Generally government claims for personal injury and personal property damage are due with a public entity within six months of an incident, with some notable exceptions.

However, if a claimant fails to file a government claim within the sixth months, there is a procedure to file a late claim.

(a) When a claim that is required by Section 911.2 to be presented not later than six months after the accrual of the cause of action is not presented within that time, a written application may be made to the public entity for leave to present that claim.

(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915) within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.

(c) In computing the one-year period under subdivision (b), the following shall apply:

(1) The time during which the person who sustained the alleged injury, damage, or loss as a minor shall be counted, but the time during which he or she is mentally incapacitated and does not have a guardian or conservator of his or her person shall not be counted.

(2) The time shall not be counted during which the person is detained or adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if both of the following conditions exist:

(A) The person is in the custody and control of an agency of the public entity to which a claim is to be presented.

(B) The public entity or its agency having custody and control of the minor is required by statute or other law to make a report of injury, abuse, or neglect to either the juvenile court or the minor’s attorney, and that entity or its agency fails to make this report within the time required by the statute or other enactment, with this time period to commence on the date on which the public entity or its agency becomes aware of the injury, neglect, or abuse. In circumstances where the public entity or its agency makes a late report, the claim period shall be tolled for the period of the delay caused by the failure to make a timely report.

(3) The time shall not be counted during which a minor is adjudged to be a dependent child of the juvenile court under the Arnold-Kennick Juvenile Court Law (Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code), if the minor is without a guardian ad litem or conservator for purposes of filing civil actions. California Government Code section 911.4.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St. Suite 517
      Redlands, CA 92373-5235
T: (909) 296-6708

Downtown Redlands and Walkability

By Michael Reiter, Attorney at Law

When I moved from West Redlands to Downtown Redlands, I found that it was much easier to walk to lunch.  The Walk Score is listed as

84 Very Walkable

Most errands can be accomplished on foot.

Today, on a particularly clear 68 degree day, I was able to walk from 300 E. State Street to the Citrus Village Shopping Center.  By contrast, my old address had a Walk Score of 48 (Car Dependent). Even though I would walk when the weather was nice, it had a lot of bad or non-existent sidewalk, a lack of marked pedestrian crossings, and since the start of the Alabama widening, a complete nightmare.

Putting aside debates about sustainability, I have a personal preference to walk around a downtown like Redlands’ downtown because I can patronize local businesses with ease. You cannot truly know a City until you have been able to walk it a ground level.

Also, when a business neighborhood, like downtown Redlands is walkable, it allows you to park once and visit a variety of stores, restaurants, or businesses without having to move your car.

A: 300 E. State St., Suite 517
     Redlands, CA 92373-5235
T: (909) 296-6708

“This testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.”

By Michael Reiter, Attorney at Law

In California, the Rules of Professional Conduct apply to attorney conduct.  In particular, attorneys should not guarantee, warranty or predict an outcome.

The standards adopted by the State Bar of California pursuant to Rule of Professional Conduct Rule 1-400 prohibits, in pertinent part:

“(1) A “communication” which contains guarantees, warranties, or predictions regarding the result of the representation.

(2) A “communication” which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as “this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.”

Even if this was not part of the Rules of Professional Conduct, it would be a very bad idea to promise clients anything.  In my written fee agreements, which are based off the models on the State Bar’s website, and in its book The California Guide to Opening and Managing a Law Office,  I use this language:

” 13. DISCLAIMER OF GUARANTEE. Nothing in this Agreement and nothing in Attorney’s statements to Client will be construed as a promise or guarantee about the outcome of this matter. Attorney makes no such promises or guarantees. There can be no assurance that Client will recover any sum or sums in this matter. Attorney’s comments about the outcome of this matter are expressions of opinion only. Client acknowledges that Attorney has made no promise or guarantees about the outcome.”

The original can be found on Page 139 of the 2008 edition of the California Guide to Opening and Managing a Law Office, published by the State Bar of California.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

 

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

New Address

My new address is 300 E. State Street, Suite 517

Redlands CA 92373-5235

My phone number is (909) 296-6708

The Myth about Car Dealer Sales Tax in California.

By Michael Reiter, Attorney at Law

You often hear people talking about how car dealers bring sales tax revenue to cities from the sale of vehicles.  While there is some truth to it, there are special rules for the allocation of a portion of the tax that discourages shoppers from choosing an out-of-town retailer with a lower sales tax rate.

Further, Government Code section 53084 has discouraged local entities from providing financial assistance, including sales tax rebates to car dealers and big box retailers that are in another jurisdiction: “. . . a local agency shall not provide any form of financial assistance to a vehicle dealer or big box retailer, or a business entity that sells or leases land to a vehicle dealer or big box retailer, that is relocating from the territorial jurisdiction of one local agency to the territorial jurisdiction of another local agency but within the same market area.”

Further, people think that all the sales tax revenue goes to a local agency, when just a portion of the sales tax goes to a local entity.  Of the 7.5 percent base rate in California, the Board of Equalization states:

“Local Tax” is the general term for sales and use taxes imposed under the Bradley-Burns Uniform Sales and Use Tax Law. The basic statewide sales and use tax rate is 7.50% and is divided as follows:

  • 6.50% State

  • 0.75% Local Jurisdiction (City or county of place of sale or use)

  • 0.25% Local Transportation Fund (County of place of sale or use) [Emphasis added]

In addition to the “Local Tax,” many California local entities have special taxing districts which impose a sales and use tax by adding to the current 7.5 percent.  In the California Board of Equalization Publication 34, dated January 2013, entitled Motor Vehicle Dealers, Pages 28-29:

If you sell or lease a vehicle to a customer who registers the vehicle in a special tax district, you are considered “engaged in business” in the district. As a result, you must report and pay the applicable special district tax.
Examples:
You are located in Alameda County, where there are three districts, each funded by a 0.50 percent rate. You sell or lease a vehicle to a customer who will register the vehicle in the same county. You report and pay the standard statewide rate of 7.50 percent plus 1.50 percent for the three special tax districts in effect in the county, for a total rate of 9.00 percent.
You are located in Los Angeles County and sell a vehicle that will be registered in Kings County, where there are no special tax districts. You report and pay only the statewide rate of 7.50 percent.
You are located in Kern County and sell a vehicle that will be registered in Alameda County, where there are three special tax districts. As with the first example, you will report and pay tax at the total rate of 9.00 percent (the standard statewide rate of 7.50 percent plus 1.50 percent for the three districts).

Leases are a little different.  Revenue and Taxation Code section 7205.1 says that a California lessor, other than a new motor vehicle dealer or a leasing company, for a lease exceeding four months, the local tax is allocated from the California dealer’s sales location.

Certainly, even without certain sales tax revenue on sales, vehicle dealers are attractive to local California entities because they provide jobs, services for residents, and both local and special district taxes on parts, for example.  However, since motor vehicles are big ticket items, people mistakenly think that the special district taxes are based on the location of the dealer, when in California it is based on registration.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.
A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708

How To Use A Court Interpreter in San Bernardino Superior Court

By Michael Reiter, Attorney at Law

As long-time readers know, I am a member of the Hon. Joseph B. Campbell American Inn of Court.  Last night was a monthly meeting, and the program was one of the best since I became a member in the earlier part of the last decade.  The program included a skit that showed how interpreters were used in a criminal trial, both with American Sign Language interpreters and Spanish interpreters.  When I was a Deputy City Attorney for the City of San Bernardino, the court interpreters were invaluable in communicating with primarily monolingual Spanish speakers in code enforcement cases.  While the performers in the skit provided a great deal of information, here is some information derived from the hand outs:

How To Use a Court Interpreter

The interpreter is your voice in court.

So, it is important to . . .

Listen carefully to the interpreter.

Wait for the interpreter to finish talking before your answer.

Do not speak in English, even if you speak a little.  It is confusing for the judge.

Do not interrupt, even if someone in court says something bad about you.  You will get a chance to speak.

Take notes. If someone says something untrue, write it down.  Then when it is your turn to speak, you can tell the judge your side.

Source: How to Use a Court Interpreter, Superior Court of California, County of San Bernardino, pamphlet in English and Spanish, undated.

Additionally, a handout with the title of the presentation, “Lost in Translation” dated January 2013 says:

Our guest Spanish Language Interpreters ask that we, as attorneys and judicial officers, always keep the following things in mind . . .

– Don’t speak fast.

– Don’t use humor or figures of speech. [Note: The examples given were, “you’re really in a pickle” or “bird of a different feather”]

– Don’t give the jury instruction on interpreters or modify it.

[Note: The interpreter referred to CALJIC Instruction 121 which reads:

“Some testimony may be given in <insert name or description of language other than English>. An interpreter will provide a translation for you at the time that the testimony is given. You must rely on the translation provided by the interpreter, even if you understand the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note and giving it to the (clerk/bailiff).”  The notes state: “The committee recommends that this instruction be given whenever testimony will be received with the assistance of an interpreter, though no case has held that the court has a sua sponte duty to give the instruction. The instruction may be given at the beginning of the case, when the person requiring translation testifies, or both, at the court’s discretion. If a transcript of a tape in a foreign language will be used, the court may modify this instruction. (See Ninth Circuit Manual of Model Jury Instructions, Criminal Cases, Instruction No. 2.8 (2003).) If the court chooses, the instruction may also be modified and given again at the end of the case, with all other instructions.”

The interpreter presenting strongly objected to the part of the instruction which states: “If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note” undermined the certified interpreter’s training and experience and emphasized that the instruction was not mandatory, and that the judicial officer could leave that objectionable line out of the instruction.]

– Always speak directly. [Note: attorneys should speak to the witness, and the witness should answer the attorney.  Do not speak to the interpreter directly].

– Beware of false cognates.

– Spanish is 30% longer than English.

– The Only person who never stops speaking during proceedings is the interpreter.

The American Sign Language interpreters said that they are required to provide a translation that included emotions such as shouting or sarcasm.  The Spanish language interpreters said that it was a matter of style for them to provide the translation in the same tone or volume.

Thank you to the leaders of the Inn for providing such an educational program, particularly Judge John Pacheco and Donna Connally, and to the court interpreters that helped us understand the process.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Address: 1255 W. Colton Ave. Suite 104
                   Redlands, CA 92374

California Personal Injury Litigation and Proof of Service for Electronic Service

By Michael Reiter, Attorney at Law.

Electronic service is a cost-effective manner of service, whether done in Federal cases with CM/ECF, or in California superior courts by stipulation, or in conjunction with electronic filing.  For California superior court cases, the Judicial Council has created an optional proof of service for electronic service, FORM POS-050/EFS-050, which needs to be used in conjunction with Form POS-o50(P).  However, if you follow the requirements of California Rules of Court Rule 2.251(g) the practitioner does not need to use the optional Judicial Council form.

California Rules of Court Rule 2.251(g) requires the following information:

(1)Proof of electronic service may be by any of the methods provided in Code of Civil Procedure section 1013a, except that the proof of service must state:

(A)The electronic service address of the person making the service, in addition to that person’s residence or business address;

(B)The date and time of the electronic service, instead of the date and place of deposit in the mail;

(C)The name and electronic service address of the person served, in place of that person’s name and address as shown on the envelope; and

(D)That the document was served electronically, in place of the statement that the envelope was sealed and deposited in the mail with postage fully prepaid.

(2)Proof of electronic service may be in electronic form and may be filed electronically with the court.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708
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