What is Bad Faith?

Simply put, an insurance company acts in bad faith when the company acts unfairly towards its policyholder.  An insurer cannot unreasonably deny a covered claim, or deny the claim without proper cause. Bad faith exists when the insurance company acts with malice or in a way that exceeds all bounds of decency. 

If My Insurance Company Denies My Claim, Have They Acted in Bad Faith?

Not necessarily.  An insurance company may have a legitimate reason for denying your claim. For example, an insurance company can deny your claim if you fail to meet your obligations under the policy – for example, if you do not make your premium payments on time, or wait too long to ask for benefits once they are due.  It can also lawfully deny a claim for a loss or event not covered under the policy.  If your insurance company erroneously denies you benefits that you are entitled to under the policy, that may violate your insurance policy contract, but it does not necessarily reach the level of bad faith

What is The End Difference Between  a  Mistaken Violation of an Insurance Contract and A Bad Faith Violation?

The main difference is the amount and type of damages that an insurance company will likely have to pay if a jury decides the insurance company acted in bad faith.  If an insurance company acts in bad faith, it can be sued for punitive damages, the sole purpose of which is to punish and deter outrageous behavior.  Outrageous behavior may exist where an insurance company claims manager or executive acts with malice or reckless disregard for the rights of the insured person.

Consider The California Case of Patsy Bates vs. Health Net, Inc.

In the California case Bates vs. Health Net, Inc. , Health Net, Inc. was ordered to pay more than $9 million to a breast cancer patient, Patsy Bates, whom it dropped while she was in the middle of chemotherapy.  Patsy Bates was left with more than $129,000 in medical bills and as a result was forced to stop chemotherapy for several months.  Newspaper reports said the private arbitration judge who decided the dispute called Health Net’s actions “egregious” and said that Health Net demonstrated little interest in its insured; had this case gone to trial, it likely would have resulted in a verdict of bad faith.  A verdict of bad faith requires a showing that an insurance company did something for which it should be seriously punished.

What Should You Do If Your Insurance Claim Is Denied?

If your claim for benefits under any policy of insurance – health, disability, homeowners, auto, or business – has been wrongfully denied, please contact the experienced attorneys at San Diego Law Firm.  We can quickly determine whether your claim is covered under your policy, and evaluate the grounds for the denial.  If there is a substantial amount of money at stake, we will make a written demand to the insurance company for payment of your benefits.  If that demand is refused, we will take your case to arbitration, mediation, or a trial, and will seek justice and full compensation for you. For more information or an appointment, please call San Diego Law Firm at 619-794-0243.  We look forward to helping you.

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Under section 530.5 of the California Penal Code the definition of “Identity Theft” is taking another’s personal information and using it for an unlawful purpose. Such unlawful purposes include things like taking funds out of bank or financial accounts or opening credit accounts or taking out student loans in the victim’s name.  However, the worst type of identity theft occurs when an unauthorized person takes over a victim’s identity altogether by running up huge debt and committing crimes while using the victim’s name.  In such a dire situation, the damages extend to out-of-pocket financial losses, in addition to the losses incurred in working to restore a reputation and correcting erroneous information. Plus there are immediate and long-term consequences of not being able to obtain money for things like education costs or personal loans.  Working your way out of the mess caused by someone taking your information and using it for an unlawful purpose will take time and a certain amount of vigilance on your and your attorney’s part.

Are There Laws Designed to Protect Against Identity Theft?

In the United States, the Department of Justice is responsible for prosecuting identity theft and fraud cases.  In the fall of 1998 Congress passed the Identity Theft Assumption and Deterrence Act.  Under this Act, knowingly transferring or using the identification of another person with the intent to commit an unlawful activity is a violation of Federal law.  Under this Federal law a person can be imprisoned for up to 15 years and suffer other ramifications, such as fines and forfeiture of property. 

Does California Have Laws That Protect Victims of Identity Theft?

If you are a victim of identity theft in California you have certain rights.   There are laws in the California Penal and Civil Codes that define identity theft as a crime, impose punishment, and provide remedies.  Your rights as an identity theft victim are numerous.  For example, as an identity theft victim, you have the right get copies of documents relating to fraudulent transactions or accounts created using your information and to have information resulting from identity theft removed from your credit reporting agency files.  

Civil Remedies Available under California Law for Identity Theft Victims

As a victim of identity theft, there are a number of civil remedies available to help you counter the negative impact of someone using your identity for an unlawful purpose.  For example, under section 1798.93 of the California Civil Code a victim of identity theft can bring a lawsuit against those who make a mistaken claim against the victim.  The remedies allowed under California law can include a court declaration that the victim is not obligated to pay the claim, or an injunction to stop attempts to collect the claim, compensation for the victim’s actual losses, and possible civil penalties up to $30,000.00. 

Why You Need Help Restoring Your Reputation, Credit, and Name

The case of identity theft that served as the catalyst for the Federal government to create the Identity Theft and Assumption Deterrent Act involved a victim that spent more than four years and more than $15,000 of their own money to restore their credit and reputation.  In that case the criminal incurred more than $100,000 of credit card debt, obtained a federal home loan, bought homes, motorcycles, and handguns in the victim’s name, and filed bankruptcy in the victim’s name. 

Moving forward in your personal and financial life when such damage has been caused to your financial history and personal reputation will take time, vigilance, and patience.  In addition to taking steps such as calling creditors, obtaining police reports, and writing to credit bureaus, there are specific steps that to be taken that will require the expertise of someone who knows how to write persuasively, negotiate well, and serve as an advocate for identity theft victims.  A common example is the step of creating an identity theft affidavit.  This “Federal Trade Commission’s ID Theft Affidavit” is accepted by credit bureaus and by creditors. It is a tool that can be invaluable in helping to clear your name.

The attorneys at San Diego Law Firm understand what it takes to negotiate with creditors, interact with local and federal prosecuting agencies, and handle the very time- consuming aspects of correcting information for identity theft victims.  If you are an indentify theft victim and would like a consultation, you can reach San Diego Law Firm at 619-794-0243.  We can help clear your name and restore your reputation.

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An injunction is a court order that requires someone to either do or not do something.  For example, if your inheritance rights are in jeopardy because of something a personal representative is about to do, then you might be able to ask for an injunction to prevent the transaction. 

If you’re a business owner, then what would you do if another business was using your trademark (such as your business’s name or logo)?  If you need to sue, would it be enough to ask for only money?  Would a money judgment stop the competing business from using your trademark?  Maybe, maybe not.  That’s why you would probably ask for an injunction that specifically orders your competitor to stop using your trademark. 

Without an injunction, there are many situations where you’d be stuck having to sue someone over and over again because that person could continue violating your rights.

Do injunctions last forever?

Some types of injunctions that are temporary.  If there’s an emergency you may be able to get a temporary injunction that will last only until the court is able to make a final decision on the case. 

Even if you get a “permanent” injunction at the end of a trial, sometimes it can modified later.   An injunction can even come with an expiration date.

When can you get an injunction?

A request for an injunction isn’t taken lightly and not every case will qualify for one.  To get a temporary injunction while your lawsuit is pending, here are some of the main things you’ll generally need to prove: 

      1.  That monetary compensation wouldn’t be enough in your case

      2.  There’s a big enough threat that you’ll suffer permanent harm if the injunction isn’t given

      3.  You’ll very likely win the case

      4.  You’d suffer more harm if you don’t get the injunction, compared to any harm the defendant would suffer if are given the injunction

If you believe your rights are being violated and that monetary compensation isn’t enough in your case, we’ll evaluate your chances of getting an injunction in court.  This may be the best way to protect your rights, or prevent future lost profits.  Get the legal help you need from an experienced attorney by contacting San Diego Law Firm’s at (619) 794-0243.

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Many unsafe products make it onto the market and into consumers’ homes, only to cause serious and even fatal injuries.  Sometimes manufacturers and sellers don’t do enough to ensure safety because they don’t want to cut into profits or delay sale of the product. 

Product recalls are an unavoidable part of our consumer-oriented world.  The widespread Toyota recalls over vehicle acceleration and other safety issues probably come to mind.  Mariko Sanchanta and Yoshio Takahashi of The Wall Street Journal report that over the next year, the financial hit to the carmaker because of these recalls could potentially total over $5 billion. 

Injuries have been caused by dangers and defects found in a wide range of products, including:

    ●  Household products and appliances

    ●  Electronics

    ●  Medical products

    ●  Prescription drugs

    ●  Foods

    ●  Toys

    ●  Cribs and other children’s products

    ●  Vehicles

    ●  Tires

What makes a product defective?

Your right to sue manufacturers and sellers for your injuries caused by a faulty product comes from “products liability” laws. 

These laws identify three basic types of defects:

1.  Manufacturing defect – The product is dangerous because of a mistake in how the product was made or assembled. 

2.  Design defect – Even if the product is put together properly, the product is dangerous because of the risks created by its design. 

3.  Marketing defect – You weren’t given proper warnings about the product’s risks or the product’s label was misleading.  The product could also be defective because you weren’t given proper instructions on how to safely use the product. 

If a manufacturer should know that a product could be used in a wrong way, then its design or warning has to address the possible misuse to reduce the chance you’ll be harmed.

What you can do if a defective product seriously injures you

The injuries caused by a defective product can be serious and even life changing, but the maker and seller of the unsafe product could potentially be held responsible.  In these situations, San Diego Law Firm can seek financial compensation for injury to yourself or a loved one.  Start your case as soon as possible, because the law limits how much time you have to start a lawsuit.  Find out how we can help by contacting San Diego Law Firm’s experienced and dedicated products liability lawyers at (619) 794-0243.

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The federal and state governments then create laws to carry out their separate powers.  States can create laws that cover a broad range of subjects, but have to stay within the limits of state power.  The national government’s law making power is even more limited, because the Constitution outlines the specific areas that federal law can address. 

While there can be some overlap, the Constitution is clear that federal laws trump state law when there’s a conflict between the two.  Even federal laws can be struck down if they run counter to the U.S. Constitution. 

Creating Federal and California Laws

●  Elected law-makers

How these laws are created depends on the system.  Nationally, Congress creates federal laws that the President must usually approve.  As for the states, each state government has a legislature to pass its own laws.  Add to that “city ordinances” that create rules that apply only on a local level (such as the San Diego Municipal Code).

●  Propositions

Here in California, we’ve also had many laws passed directly by voters through propositions – with the latest proposition to generate a lot of news being Proposition 8 that banned gay marriage in California.  As mentioned earlier, laws can be challenged as unconstitutional.  Maura Dolan of The Los Angeles Times reports on the recent claims made by lawyers in federal court on whether California’s gay marriage ban violates the U.S. Constitution.  The current case focuses on our national constitution, since last year’s challenge based on our state’s constitution failed in California’s Supreme Court.

●  Judge-made laws

Another source of law comes directly from the courts.  Many of our legal rights have roots in the “common law.”  These are laws and rules created by judges.  An example is negligence law that holds a person responsible for injuring someone else.   These judge-made laws are sometimes “codified” – meaning that the legislature puts a judge-made rule on the books, and might even expand on it.  Many of our California “statutes” or “codes” (the laws passed by the legislature) have come about this way.  Yet there are times when lawmakers are less than pleased with the common law, and pass statutes to change a judge-made law.  Common law also varies from state to state, although the law in one state can sometimes influence judges in another state. 

Jurisdiction: Dividing Power Between the National and State Court Systems

As a result of the division between the national government and the states, the issue of “jurisdiction” comes up for courts.  In other words, since there are federal and state laws that apply to different cases, a federal court may not have the authority to decide your case, or vice-versa.  Generally, a federal court will only hear a case if the dispute relates to federal laws like bankruptcy or copyrights, if a state law allegedly violated a federal law, or if the people in the case are from different states and more than $75,000 is at stake. 

Just about any other kind of case will be heard in a state court, such as in one of California’s Superior Courts.  Even then, there can be issues over which state should hear the case.  Many times, both federal and state laws apply.  When this happens, the case could potentially go to either state or federal court.  There’s a lot more that goes into jurisdiction, and many battles have been waged over which court should hear the case. 

If you’re involved in a business or personal legal dispute, we’ll examine which court has jurisdiction over your case.  There is a lot to navigate in any lawsuit, but you can feel confident in having a skilled personal legal representative from San Diego Law Firm handle your case step by step.  Contact us at (619) 794-0243.

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The lawsuit itself is officially started by filing a “complaint” that’s prepared by the plaintiff’s attorney after investigating the facts and researching the law that applies to the case. The complaint will set out the legal grounds for the lawsuit against the defendant and make a request, such as for monetary compensation.  This document, together with a “summons” that orders the defendant to respond to the claim, will be delivered (“served”) to the person being sued. After being served, the defendant’s lawyer must act quickly and within the deadline to respond to the lawsuit and can take different actions depending on the situation.  For example, the defendant can file an answer to the complaint, object to the complaint because it doesn’t state a legal claim, raise defenses, and may even have his or her own claim against the plaintiff.  If so, the defendant’s attorney will file a counter-claim, called a “cross-complaint” in California state courts, to which the plaintiff will have to respond.  If there’s a legal basis for it, one party can also try to get a judgment on the case (or part of it) without a trial, or get the case dismissed. 

The attorneys will also begin “discovery,” which allows more investigation tools to be used so the parties can prepare or defend against the lawsuit.  A few of the most important ways to gather evidence during discovery include interrogatories (written questions prepared by the lawyer that have to be answered under oath), depositions (questions that will be answered orally under oath), and orders for the other party or subpoenaed third parties to produce documents and photos.  Throughout the process, lawyers will meet with the judge for conferences on the status of the lawsuit.  Before the trial is set, the question will come up on whether there will be a jury trial or a bench trial (where a judge will decide your case).  Depending on the lawsuit, you may have a right to a jury as long as a request for a jury is made within the time required, but sometimes the parties may want to waive this right and have the case tried by a judge.  If not, then a jury will be selected.  Then, attorneys for both parties will go through all the typical steps in a trial, i.e. opening statements, examining and cross-examining witnesses and experts, and presenting closing arguments.  During the trial, either side may continue to try to cut the trial short and get a judgment in its favor.  If the trial continues, lawyers will prepare jury instructions for the court’s approval.  Jury instructions explain the laws that jury members must apply to the case (in other words, the specific things that must have been proven), and the judge will read approved instructions to the jury.  After jury deliberations, or after the judge has reached a decision in a bench trial, the verdict will be read.  A party might decide to challenge the judgment with a post trial motion, or by filing an appeal. 

While it’s easy to focus on what lawyers do during a lawsuit, we’ll also advise you on what you can do from the start to help improve your chances of winning.  For instance, it’s key that you tell us not only everything that can help your case, but also anything that has the potential to hurt it.  Also, be careful to provide complete and accurate answers to interrogatories and during depositions, because dishonest answers are usually caught later and can significantly damage your case.  Your credibility and truthfulness will influence the judge or jury’s decision as they weigh the evidence in your case.  In doing our part to maximize the likelihood of success, we’ll identify your goals with you, thoroughly investigate your case, and persuasively negotiate with the other side.  Although we’ll strive for settlement from the outset, we’re fully prepared to litigate your case in court.  If you’re faced with a legal dispute, act quickly so that you don’t lose your right to sue or defend a case because you’ve waited too long.  Reach San Diego Law Firm’s experienced trial lawyers at (619) 794-0243.

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The court of appeal will review the trial court’s decision by applying different legal standards, and these can give a great deal of deference to the trial court’s decision, making things more difficult for the party who’s appealing.  Which standard is used will depend on the circumstances of your case, including whether your case was decided by a judge or jury.  For example, two common standards of review are abuse of discretion and substantial evidence.  The details of these standards of review can become complex, but essentially the abuse of discretion standard is applied if you’re challenging discretionary decisions that a judge made, and abuse will only be found when the decision is clearly unreasonable or arbitrary.  When the appeals court is reviewing the factual conclusions made by a judge or jury, then the substantial evidence standard is applied instead.  This means that the court of appeal will be looking to see whether it’s possible that a reasonable person looking at the facts could have made the same factual finding as the judge or jury made.  No matter what standard has been used, in the end the appeals court will decide to either let the trial court’s judgment or ruling stand; modify it; or reverse the judgment or part of it, in which case the lawsuit is often sent back to the trial court for retrial or with other instructions.

Before any potential appeal is begun, it might also be possible to challenge the decision by filing a “post trial motion.”  These after trial requests are not appeals, so the motion will be heard by the trial court, not the California Court of Appeal.  Typically, a post trial motion must be made very soon after the judgment.  Two of the better known post trial motions are a motion for judgment notwithstanding the verdict (JNOV), and a motion for a new trial.  When requesting a JNOV, you ask the judge to enter a judgment in your favor, in spite of a jury verdict that says you lost.  As you can imagine, this is an extreme request.  For that reason a JNOV will only be granted when the jury’s verdict isn’t supported by sufficient evidence, which shows that no reasonable jury could have come to its decision.  On the other hand, the reasons behind a motion for a new trial often revolve around claims of tainted court proceedings.  Here, you may argue that there was misconduct on the part of the jury, that the amount of money awarded was either too little or excessive, that there’s new evidence that couldn’t have been discovered before trial, that there was an irregularity in the proceedings, and so on.  When this results in a miscarriage of justice, the judge can order that your case be tried again.  If you don’t succeed on a post trial motion, we’ll assess whether you meet the legal requirements to file an appeal and evaluate its merits so you can decide on your best course of action.  As attorneys experienced in both litigation and appeals work, we’re prepared to pursue your appeal and can handle the appeal even if you had a different lawyer at trial.  After careful and detailed research, we’ll persuasively present your appeal through written briefs and oral arguments, or diligently defend against the appeal if you were the winning party at trial.  There are strict deadlines to file an appeal that generally expire soon after the decision in your lawsuit is made, so avoid any delay and contact San Diego Law Firm at (619) 794-0243.

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In its blog, the National Federation of Independent Business (NFIB) urges businesses to act immediately when notified of a lawsuit (even if you think the plaintiff’s case is weak or even frivolous) by getting information organized and contacting an attorney so that you don’t undermine your position.  The same logic applies to individuals being sued, especially because of the ever present threat of a “default judgment,” where you lose the case before you even put up a fight.  This is possible because California law sets a time limit within which you must formally respond to the plaintiff’s complaint, and if you miss this deadline the plaintiff will usually ask the court to enter a judgment against you.  If a default judgment has already been entered against you or your business, contact us immediately, as your options will vary depending on the circumstances and how much time has passed, but you don’t want to miss your window of opportunity for relief.  Even if you are able to set the judgment against you aside, it will be after extra expense that could have been avoided if you had contacted a lawyer in time. 

Not only that, but you don’t want to miss the opportunities available during the beginning stages of a lawsuit to strategize and negotiate with the other side.  You might also have your own counter claim against the person or business suing you, or it could be necessary to bring third parties into the lawsuit.  If you do have a viable counter claim and file it within the required timeframe, this might also give you the leverage needed to get the case dropped or settled outside of court.  This is also the time to formulate your legal defenses to the claim.  You might even have a legal basis to request that the court rule in your favor or dismiss the case in the early stages of litigation to avoid a full blown trial.  Not all is lost just because you’re sued, but as you can see, there’s a lot to be done early on to maximize your chances of success.  Don’t compromise your defense, and reach San Diego Law Firm’s experienced litigation attorneys at (619) 794-0243.

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- A breach of contract lawsuit must be brought within 4 years from the date of breach if the agreement is in writing, or within 2 years if you had an oral agreement, but it may be possible to shorten the period by contract

- A claim for fraud must be filed within 3 years from the date the fraud was actually discovered

- A defamation case (libel or slander) must be filed within 1 year

For the most part, these are strict time limits, so if a case is filed with the court after time has run out (even by just one day), then the defendant can assert that the claim is barred, leaving the plaintiff out of luck.   Even so, sometimes it’s possible to “toll” the statute of limitations period.  If tolled, time is essentially paused.  There are several different situations when time can be tolled, and one common example involves minors.  For instance, if the would-be plaintiff is still a child when the claim arises, then this is considered a legal disability and the limitations period will be tolled until the minor turns 18 (in most cases), although a parent may prefer to file on behalf of the child instead of waiting.  In addition to tolling, an exception to the statute might apply in your situation.  Also keep in mind that the limitations period is often much shorter when suing the City of San Diego and other government agencies.

What’s more, depending on the circumstances, there isn’t always a black and white answer as to when the clock should start ticking.  In a personal injury case, it may be obvious when the date of the injury occurred.  Then again, what if it’s the type of injury that isn’t immediately apparent?  Here, the limitations period starts when the injury was (or should have been) discovered, which may be arguable under the facts, but this “discovery rule” doesn’t apply to all types of claims.  While all these time limits may seem arbitrary, there are practical and policy reasons behind these deadlines.  The sooner a lawsuit is filed, the better the chances of gathering important evidence, not to mention that your memory and that of any witnesses will be fresher and probably more reliable than if you wait seven years to start your case.  From a public interest standpoint, it’s unfair to allow the threat of potential liability to hang over someone’s head for the rest of his or her life; meanwhile a plaintiff shouldn’t be allowed to sit on his or her rights for years on end after suffering an alleged injury or harm. 

As you’ve probably guessed by now, there are times when the seemingly simple task of applying the statute of limitations to your case can turn into a complex legal analysis, but we’ll carefully research these issues when bringing or defending your case.  If you’re a potential plaintiff, then it’s crucial that you do your part to get your case started well before your claim expires to protect your rights.  We’ll advise you early on and help you avoid potentially costly missteps that can happen when communicating with insurance companies or others whose interests conflict with yours, even when they seemed to be on your side.  To reach San Diego Law Firm’s experienced attorneys for help with your litigation, business dispute, or personal injury matters, call us at (619) 794-0243.

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First of all, do you have a viable case?  Will the other party have a good defense?  To win a lawsuit, you need to prove that the legal requirements of your claim or claims are met.  That’s why every case must be carefully researched to identify exactly what needs to be proven to establish your legal basis for suing the defendant, and to assess whether you’ll have enough evidence to do so.  As a quick example, consider the basics of a negligence case.  To hold someone responsible for harm caused by his or her carelessness, you must prove that this person owed you a duty to exercise reasonable care, he or she failed to live up to this standard (breach), this conduct was the cause of your harm and was foreseeable, and you suffered actual damages.  To establish each of these general requirements, more detailed rules come into play depending on the facts of your case. 

Your decision to sue also depends on whether you can prove what kind of damages you have and the amounts of those damages.  Based on the facts and what the law allows for, how much will you be likely to hold the defendant responsible for, and is this worth the time and expense you’ll be putting into a case?  Some losses are easier to calculate and prove than others, and it may be necessary to have experts testify about your injury or economic loss.  If you’re not asking the court for money, say you want an injunction, then you’ll evaluate the cost of pursuing the lawsuit compared to the benefit and chances of getting the court order.

Beyond your chances of winning, also think about who you’ll be suing.  If you have a business or personal relationship with the would-be defendant, then consider how serious the harm you’ve suffered is and how your relationship could be affected.  Then you can decide whether the lawsuit is worth filing in light of that risk.  Next, analyze the defendant for a completely different reason: If you win your lawsuit, what’s the likelihood that you’ll get paid?  Some businesses and individuals have substantial assets and money that can be collected against.  On the other hand, you may be stuck with the beloved “judgment proof” defendant who has nothing, and as everyone knows, you can’t get money out of an empty pocket.  If you can’t collect right away, decide whether you’re willing to renew your judgment before it expires, so you can try to recover the rest of the money owed later on. 

With years of experience, we can provide you with the legal advice you’ll need to decide whether to sue.  We’ll also advise you on other options for resolving your dispute, including mediation and arbitration, which can potentially be less costly and quicker than litigation.  Our objective is always to find the best way to advance your individual or business interests, and we’ll evaluate the prospects of resolving your case through these methods or through settlement.  Have your case skillfully handled by San Diego Law Firm’s attorneys by contacting us at (619) 794-0243.

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