Free Legal Advice, and Worth Every Penny

2010-01-21T17:21:00.000-08:00

ASK THE LAWYER: FREE LEGAL ADVICE, AND WORTH EVERY PENNY

Everyone likes to complain about how much lawyers charge.

Okay, then, how about free legal advice, that's worth every penny.

You ask the legal questions, and I'll give you the answers.

The answers may be wrong, but at least they are free.

Topic: Attorney Won't Return Client's Calls

Question: My attorney files papers that have mistakes I want him to correct. I also want to

find out what is happening in my case. But, he doesn't return my calls. What can I do?

Answer: Start by sending the attorney an e-mail and facsimile explaining your concerns,

stating when you left messages that were not returned, and asking for a call back and/or

meeting to discuss your case. Once you have created this record, you are likely to get a prompt

response. If you still get no response, get a new attorney. If you are so inclined, you can also

report your attorney to the State Bar of California.

Topic: Fraud

Question: I have heard of cases where people sue for fraud, and since I have been lied to in

many business deals want to know if that is what fraud is.

Answer: Fraud can take many different forms under the law. The most common type of fraud

is when someone makes a false statement, knowing it is false, that the plaintiff relies upon to

his/her detriment. One example of this is when a seller of a house knows the roof leaks, but

states the house is in perfect condition.

Another type of fraud is when the defendant knowingly conceals important information to

induce action by the plaintiff. The failure to disclose the leaky roof from our last example would

constitute this type of fraud.

Finally, there is promissory fraud where the defendant makes a promise he/she has no

intention of performing. This can occur, for example, when a business promises to provide a

good or service for a certain price, or at a certain time, with no intention of doing so.

While difficult to prove, fraud is a powerful claim as it entitles the plaintiff not only to recover

what was lost, but sometimes punitive damages as well if the conduct is deemed to be

sufficiently egregious.

Topic: Construction Defect

Question: I just bought a house, and found out it has extensive mold in areas that were not

visible. Can I sue, who do I sue, and what do I sue for?

Answer: If it is new construction, you can sue the builder for breach of contract, negligence,

and breach of express and implied warranties. If the builder knew of the condition, you can also

sue for fraud. If this is a used house, you can sue the seller for fraud and rescission. If you used

a home inspector, you can also sue for negligence. If the seller's broker was aware of the

condition, you can sue for fraud. Check out my article on construction defect litigation.

chyten@chytenlaw.com

Topic: Termination of At Will Employee

Question: I was fired from the company I have been working at for three years. I wasn't given

any reason other than my position was being phased out. I know that's a lie as my position was

filled by a hot woman I think my boss would like to date. Do I have any claim?

Answer: Unless you have an employment contract, you are an at will employee, and can be

fired for any reason other than race, gender, age, religion, or for being a member of some other

protected class. Being fired because your boss hopes to date your replacement, while bad

business, is not illegal.

Topic: Defamation

Question: I am involved in a bitter divorce with my soon-to-be ex-wife. Her attorney sent me

a letter at work in which he accused me of being a liar, fraud, and a thief. Can I sue this scumbag

ambulance chaser for defamation.

Answer: First, if you are represented by counsel, it was a violation of the California Rules of

Professional Conduct for an adversary's attorney to communicate directly with you. However,

since you have directed your question to me, rather than your own attorney, I assume you have

no attorney.

In terms of defamation, accusing someone of being a "liar, fraud, and a thief"

is not only libelous, if such statements are false, but constitute libel per se, meaning your

damages would be presumed.

That being said, your claim faces two hurdles I don't belive you can overcome. First, statements

made by an attorney in the course of litigation, are privileged under California Civil Code Section

47. Second, because the letter was sent to you, it was not made, or published to a third party,

which is a requirement for libel or slander. The fact that your employer intercepted the letter

addressed to you does not make it a publication to a third party. (Had the letter been faxed, the

result might be different, as one can reasonabley assume a fax will be read by someone other

than the addressee).

Thus, even if the attorney's statements were not privileged under Civil Code Section 47, which

they probaly are, you have no claim for libel as the statements were not published to a third

party.

GOT A LEGAL QUESTION?

If so, drop me an e-mail, or give me a call.

chyten@chytenlaw.com

Kenneth E. Chyten Law Blog

Free Legal Advice, and Worth Every Penny