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	<title>Pocklington Law Offices</title>
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	<link>http://www.pocklingtonlaw.com</link>
	<description>Personal Injury &#38; Divorce Attorneys</description>
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		<title>Closed Head Injuries &#8211; Concussions</title>
		<link>http://www.pocklingtonlaw.com/closed-head-injuries-concussions/</link>
		<comments>http://www.pocklingtonlaw.com/closed-head-injuries-concussions/#respond</comments>
		<pubDate>Wed, 04 Jul 2018 17:25:48 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Injury Law]]></category>

		<guid isPermaLink="false">http://www.pocklingtonlaw.com/?p=718</guid>
		<description><![CDATA[<p>A person is at risk for a closed head injury whenever they are involved in an accident that involves movement or high-speed.  These are commonly seen in automobile accidents, motorcycle accidents, bicycle accidents, fights, violent shaking as well as a fall from any height.  Physical signs such as scrapes or bleeding are often not present, [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/closed-head-injuries-concussions/">Closed Head Injuries &#8211; Concussions</a></p>
]]></description>
				<content:encoded><![CDATA[<p style="text-align: center;"><img class="aligncenter size-full wp-image-720" src="http://www.pocklingtonlaw.com/wp-content/uploads/2018/07/concussion-injury-law.jpg" alt="concussion injury law" width="800" height="534" srcset="http://www.pocklingtonlaw.com/wp-content/uploads/2018/07/concussion-injury-law.jpg 800w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/07/concussion-injury-law-300x200.jpg 300w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/07/concussion-injury-law-768x513.jpg 768w" sizes="(max-width: 800px) 100vw, 800px" /></p>
<p>A person is at risk for a closed head injury whenever they are involved in an accident that involves movement or high-speed.  These are commonly seen in automobile accidents, motorcycle accidents, bicycle accidents, fights, violent shaking as well as a fall from any height.  Physical signs such as scrapes or bleeding are often not present, but that does not mean that you do not have a significant brain injury.  Similarly, one does not need to pass out or lose consciousness to have a serious injury.  It is critical that anyone involved in an accident where they hit their head see a medical professional as soon as possible for a full evaluation.  Although concussions may not be immediately life-threatening, the effects can be serious, cause significant interruptions in one’s life, and require lengthy treatments.</p>
<p>A concussion is the most common type of closed head injury.  This occurs when a blow to the head causes the brain to move back and forth rapidly.  As the skull bone is hard and the brain material is soft, the brain literally bounces around off the inside of the skull.  These are called coup and contrecoup injuries and are similar to a bruise on the inside of the brain.  Like elsewhere in the body, bruises resolve over time; however, the tissue underneath may have long-term changes due to the injury.  A bruise on the arm is forgotten once the pain goes away, the coloration returns to normal, and the arm moves just as it always did.  The brain is quite different in that we can neither see nor feel the injury.  The brain’s main function of thinking and coordinating the major functions of the body are highly complex and sensitive to small changes.  Therefore, a bruise on the brain disrupts the normal functioning that we take for granted.  As one’s thinking becomes clouded, it is often difficult for the injured victim to notice their own injury and may delay treatment.</p>
<p>The symptoms of a concussion may not start right away.  Similar to when one bumps their arm, the bruise does not show immediately.  The obvious signs of bleeding or loss of consciousness are commonly not present, but that does not mean that a serious injury did not occur.  Symptoms of a concussion may take days to weeks after the injury to appear.  Common symptoms include headaches, neck pain, nausea, ringing in the ears, dizziness, blurred vision, and tiredness.  Accident victims often feel dazed and not themselves for several days or weeks after the injury.  Symptoms can also progress to serious medical emergencies such as a severe headache that won’t go away, confusion, slurred speech, weakness, numbness, loss of coordination, convulsions or seizures.  These need immediate evaluation by medical professionals.</p>
<p>A concussion is diagnosed by a medical professional and usually is done by an initial physical exam, including a neurological exam, which checks vision, balance, coordination, and reflexes.  Memory and thinking are also evaluated and often re-evaluated to monitor progression.  A CT scan is often obtained at the time of injury to assess life-threatening emergencies such as bleeding within the brain.  A normal CT scan does not mean that a concussion is not present as concussive changes usually are not seen immediately on CT scan.  Follow-up care with all of your medical professionals is important to prevent further injury and to correctly treat your injuries.</p>
<p>Most people recover fully from a concussion over time.  Rest is very important to allow the brain time to heal.  Limiting activity, especially of tasks that involve lots of concentration, such as studying, working on the computer, or even playing video games help to reduce some of the concussive symptoms of headaches and tiredness.  When symptoms persist, a medical professional may recommend further testing and make referrals to neurocognitive specialists who perform much more complex and lengthy assessments that monitor the progression of the concussion.</p>
<p>If you were in an accident where you hit your head, you may have a concussion that needs evaluation and the timeline for recovery and the amount of treatment may be unknown.  It is vital that you contact an attorney from Pocklington Law Offices as soon as possible so you can fully understand your legal rights and what options are available to you.  As always, we will hold to our philosophy of making sure you understand the complex legal process.  If it was you that was injured, we will walk you through the process of figuring out what your best course of action for recovery is.</p>
<p>Concussions are stressful enough; don’t compound your stress by not having the right injury lawyer on your side. At Pocklington Law Offices, you can have some piece of mind knowing you are in the right hands.</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/closed-head-injuries-concussions/">Closed Head Injuries &#8211; Concussions</a></p>
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		<title>The Dangers of Self-Representation In a Personal Injury Case</title>
		<link>http://www.pocklingtonlaw.com/dangers-self-representation-personal-injury-case/</link>
		<comments>http://www.pocklingtonlaw.com/dangers-self-representation-personal-injury-case/#respond</comments>
		<pubDate>Thu, 01 Mar 2018 15:51:52 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Injury Law]]></category>
		<category><![CDATA[personal injury law]]></category>

		<guid isPermaLink="false">http://www.pocklingtonlaw.com/?p=694</guid>
		<description><![CDATA[<p>Deciding whether to hire an attorney is an important decision in every personal injury case.  In most cases, the benefit of counsel outweighs the cost. One of the most important pieces of advice given to a client at the onset of a case is the deadline or “statute of limitations” to file a lawsuit.  There [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/dangers-self-representation-personal-injury-case/">The Dangers of Self-Representation In a Personal Injury Case</a></p>
]]></description>
				<content:encoded><![CDATA[<p style="text-align: center;"><img class="aligncenter  wp-image-695" src="http://www.pocklingtonlaw.com/wp-content/uploads/2018/03/dangers-self-representation-personal-injury-case.jpg" alt="dangers self representation personal injury case" width="644" height="430" srcset="http://www.pocklingtonlaw.com/wp-content/uploads/2018/03/dangers-self-representation-personal-injury-case.jpg 800w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/03/dangers-self-representation-personal-injury-case-300x200.jpg 300w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/03/dangers-self-representation-personal-injury-case-768x513.jpg 768w" sizes="(max-width: 644px) 100vw, 644px" /></p>
<p>Deciding whether to hire an attorney is an important decision in every personal injury case.  In most cases, the benefit of counsel outweighs the cost.</p>
<p>One of the most important pieces of advice given to a client at the onset of a case is the deadline or “statute of limitations” to file a lawsuit.  There are a number of deadlines that if missed, can bar recovery by an injured victim.  Only an attorney can give legal advice on these critical deadlines.  An attorney is trained to analyze which facts are important, spot the issues in your case, and ultimately recommend what deadline is specific to your case.  Until our office has a chance to discuss your case with you, we are unable to offer an opinion on when the statute of limitations expires.</p>
<p>Another danger of self-representation is overall unfamiliarity with the process.  With years of training and experience, we are familiar with navigating the legal system.  Most self-represented plaintiffs struggle without the knowledge and wherewithal to maneuver through the legal procedures.  Many self-represented plaintiffs become victim to an aggressive defense attorney, who does not have your interest in mind.  The common tactic is to inundate the self-represented litigant with discovery and requests for information that can exhaust a self-represented party into accepting a low settlement figure.  Let us handle the litigation process and you focus on your recovery.  Once retained, our staff will make your experience through litigation as painless as possible.</p>
<p>When it comes time for settlement discussions, having an attorney is often critical.  Having just experienced a very traumatic and emotionally challenging event, an injured plaintiff does not always have the best judgment and perspective on what the law entitles them to recover.  Whether it is a fractured femur or a concussion, the traumatic event often leaves the injured plaintiff feeling the need to recover for being “wronged” by the defendant.  We have access to legal resources, journals, and jury verdicts that assist in our evaluation of the value of each case we take on.  We will evaluate all the facts and the relevant law and allow our client to make a well informed decision for settlement.</p>
<p>It is no secret that many legal cases are lengthy and costly.  Most cases that enter litigation can take years to resolve.  The injured plaintiff is overwhelmed with doctor bills and not being able to work.  Adding legal costs can make the process more stressful.  Our office advances the reasonable costs required to litigate the case.  This includes experts, investigators, and court costs.  Our office also takes no payment on injury matters until the case is resolved.</p>
<p>Anytime you are faced with serious injury, consider whether you are best served by having an attorney represent you through the process.</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/dangers-self-representation-personal-injury-case/">The Dangers of Self-Representation In a Personal Injury Case</a></p>
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		<title>Representing an Injured Child in Court: The Guardian Ad Litem Process</title>
		<link>http://www.pocklingtonlaw.com/representing-injured-child-court-guardian-ad-litem-process/</link>
		<comments>http://www.pocklingtonlaw.com/representing-injured-child-court-guardian-ad-litem-process/#respond</comments>
		<pubDate>Thu, 15 Feb 2018 19:55:43 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Family Law]]></category>
		<category><![CDATA[Injury Law]]></category>

		<guid isPermaLink="false">http://www.pocklingtonlaw.com/?p=690</guid>
		<description><![CDATA[<p>When filing a lawsuit on behalf of a child, California law requires a special process called a Guardian Ad Litem.  This process aims to protect the interests of a minor child. This process is also required where an adult is incompetent or otherwise unable to make decisions on their own behalf, oftentimes due to the injury [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/representing-injured-child-court-guardian-ad-litem-process/">Representing an Injured Child in Court: The Guardian Ad Litem Process</a></p>
]]></description>
				<content:encoded><![CDATA[<p>When filing a lawsuit on behalf of a child, California law requires a special process called a <em>Guardian Ad Litem</em>.  This process aims to protect the interests of a minor child. This process is also required where an adult is incompetent or otherwise unable to make decisions on their own behalf, oftentimes due to the injury inflicted medical condition.  This is often the case for brain injuries.  It is critical to have a competent adult making decisions for either type of injured victims.  The <em>Guardian Ad Litem</em> is a representative, standing in the shoes of the child for purposes of making decisions such as settling a case.  The guardian ad litem aims to protect the child or incapacitated person’s interest in the lawsuit.  A minor can only appear in a case by court-approved guardian ad litem.</p>
<p style="text-align: center;"><img class="aligncenter wp-image-691" src="http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/Representing-Injured-Child-Court.jpg" alt="representing injured child court" width="667" height="445" srcset="http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/Representing-Injured-Child-Court.jpg 800w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/Representing-Injured-Child-Court-300x200.jpg 300w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/Representing-Injured-Child-Court-768x513.jpg 768w" sizes="(max-width: 667px) 100vw, 667px" /></p>
<p>Below are a few commonly asked questions about a <em>Guardian Ad Litem</em>.  It is recommended to hire an attorney with experience handling cases that require a <em>Guardian Ad Litem</em>.</p>
<h2>Who is a Guardian Ad Litem?</h2>
<p>A <em>Guardian Ad Litem</em> is not a party to the action, but is the party’s representative and is an officer of the court.   The <em>Guardian Ad Litem</em> is not an attorney but is like an agent with limited powers. Anyone over the age of eighteen years can be nominated and approved by the court as a <em>Guardian Ad Litem</em>.  Most often, a parent is appointed as the minor’s <em>Guardian Ad Litem</em>.  However, that’s not always the case.  In fact, in some jurisdictions, parents may not act as the <em>Guardian Ad Litem</em> because they were also injured in the same incident.  The reason that courts do not allow a parent under these circumstances to act on the child’s behalf is because there may be a conflict of interest when it comes to determining who is at fault and when it is time to discuss settlement.  Essentially, if there is a conflict of interest, request for appointment will and should be denied.  In some cases, a relative, close family member, or friend is appointed.    In rare cases, the court can appoint a <em>Guardian Ad Litem </em>that is a professional and who has no relationship with the child so that there is no question that they are looking out for the child.   <a href="#_ftnref1" name="_ftn1"></a></p>
<h3>What is a Guardian Ad Litem’s Role?</h3>
<p>A <em>Guardian Ad Litem</em>’s role is limited to protecting the child’s interests in the litigation, and the role is closely supervised by the judge.  In her limited role, a <em>Guardian Ad Litem</em> does not have the authority to make decisions for the child outside the scope of the litigation, even if the <em>Guardian Ad Litem</em> believes the decisions are in the general best interests of the child. A <em>Guardian Ad Litem</em> &#8216;s role is more than an attorney’s but less than a party’s. The guardian may make tactical and even fundamental decisions affecting the litigation but always with the interest of the guardian’s charge in mind. Specifically, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit.  Thus, when considering the appropriate guardian ad litem for a minor plaintiff in a civil lawsuit, the central issue is the appropriate protection of the minor’s legal right to recover damages or other requested relief.</p>
<h3>When &amp; How to File an Application for Appointment of a Guardian Ad Litem</h3>
<p>If the minor is under 14 years old and is a plaintiff, the appointment must be made before the summons is issued, upon the application of a relative or friend of the minor. The appointment may be made without hearing but through an application process called “ex parte application.” Your attorney will complete the application and submit to the court for a final decision.</p>
<h2>What Is the Court’s Discretion When Appointing A Guardian Ad Litem?</h2>
<p>A court has broad discretion in ruling on a <em>Guardian Ad Litem</em> application.  In the absence of a conflict of interest, the appointment is usually made on application only and involves a little exercise of discretion.</p>
<p>&nbsp;</p>
<p><a href="#_ftnref1" name="_ftn1"></a></p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/representing-injured-child-court-guardian-ad-litem-process/">Representing an Injured Child in Court: The Guardian Ad Litem Process</a></p>
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		<title>Settling An Injury Case for A Child</title>
		<link>http://www.pocklingtonlaw.com/settling-injury-case-child/</link>
		<comments>http://www.pocklingtonlaw.com/settling-injury-case-child/#respond</comments>
		<pubDate>Thu, 01 Feb 2018 18:38:34 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Injury Law]]></category>
		<category><![CDATA[injury law]]></category>

		<guid isPermaLink="false">http://www.pocklingtonlaw.com/?p=682</guid>
		<description><![CDATA[<p>All too often, we see parents come to our office with a child that was injured at the fault of another person.  Children have the same rights to recover for injuries as any adult would.  They can recover for economic losses, medical treatment and for the pain and suffering related to the injury.  They can [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/settling-injury-case-child/">Settling An Injury Case for A Child</a></p>
]]></description>
				<content:encoded><![CDATA[<p style="text-align: center;"><img class="aligncenter wp-image-685" src="http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/settling-injury-case-child.jpg" alt="settling injury case child" width="587" height="392" srcset="http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/settling-injury-case-child.jpg 1000w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/settling-injury-case-child-300x200.jpg 300w, http://www.pocklingtonlaw.com/wp-content/uploads/2018/02/settling-injury-case-child-768x512.jpg 768w" sizes="(max-width: 587px) 100vw, 587px" /></p>
<p>All too often, we see parents come to our office with a child that was injured at the fault of another person.  Children have the same rights to recover for injuries as any adult would.  They can recover for economic losses, medical treatment and for the pain and suffering related to the injury.  They can also be a plaintiff in a lawsuit, but California has special rules in place to protect kids from possible abuse in the process.</p>
<p>As a minor, a child is unable to enter into settlement agreements and make legal decisions on their own behalf.  An adult, such as a parent or custodian, is required to make these decisions.  In order to make sure the parent or custodian does not take advantage of the child’s inexperience and unfamiliarity with the law, California requires that a judge approve any settlement involving an injured child.  This is aimed to make sure the child’s best interest are being accounted for and that the funds be used only for the child’s benefit.</p>
<p>In most cases, the funds are used for the child’s medical care.  Remaining funds are to be held, in most cases, in a trust account for the child needs.  Until the child reaches 18 years old and is legally able to make decisions, the court must approve the use of any funds held in trust for the child.</p>
<p>It is important to find <a href="http://www.pocklingtonlaw.com/">the right attorney</a>, who has experience with this legal process to protect the child’s interest.  By not following this process, there is risk that the settlement agreement is unenforceable.</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/settling-injury-case-child/">Settling An Injury Case for A Child</a></p>
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		<title>A Property Owners Liability: Injuries on the Property and What Needs to be Proven</title>
		<link>http://www.pocklingtonlaw.com/a-property-owners-liability-injuries-on-the-property-and-what-needs-to-be-proven/</link>
		<pubDate>Tue, 02 May 2017 19:30:52 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Injury Law]]></category>

		<guid isPermaLink="false">http://pocklingtonlaw.com/?p=330</guid>
		<description><![CDATA[<p>Have you ever been injured while on a public or private property? If so, you may find the following information valuable in determining your legal rights against the owner of the property where you were injured.  As with all of our blog postings, the following information is only intended to provide general information and is [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/a-property-owners-liability-injuries-on-the-property-and-what-needs-to-be-proven/">A Property Owners Liability: Injuries on the Property and What Needs to be Proven</a></p>
]]></description>
				<content:encoded><![CDATA[<p>Have you ever been injured while on a public or private property? If so, you may find the following information valuable in determining your legal rights against the owner of the property where you were injured.  <i>As with <a title="Blog" href="http://pocklingtonlaw.com/blog/">all of our blog postings</a>, the following information is only intended to provide general information and is not conclusive or in no way guarantees liability or results in a premises liability case. </i></p>
<ol>
<li><b>a.      </b><b><span style="text-decoration: underline;">Owner’s Duty to A Visitors </span></b></li>
</ol>
<p>The owner¹ of real property is liable for failing to use ordinary care and skill in the management of his or her person and property to avoid injuring persons on or near it; the test is whether the owner acted as a reasonable person in view of the probability of injury to others. <a href="http://online.ceb.com/CalCases/C2/69C2d108.htm" target="_blank"><i>Rowland v Christian</i> (1968) 69 C2d 108, 119, 70 CR 97</a>.</p>
<p>In order evaluate whether or not an owner acted as a reasonable person, one must understand who a legal “reasonable person” is and/or what that the term signifies.  The truth is that there is no universally accepted technical definition of a “reasonable person”.  However, <a href="http://www.blackslawdictionary.com/Home/Default.aspx" target="_blank">Black’s Law Dictionary</a> defines a reasonable person as a hypothetical person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for protection of their own and of others’ interests.  In other words, the reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions.</p>
<p>The extent of an owner&#8217;s duty to use ordinary care to keep the property in a reasonably safe condition is based on the foreseeability that the condition will cause injury. <a href="http://online.ceb.com/CalCases/C2/69C2d108.htm" target="_blank"><i>Rowland v Christian</i> (1968) 69 C2d 108, 119, 70 CR 97</a>, 104; <a href="http://online.ceb.com/CalCases/CA3/1CA3d320.htm" target="_blank"><i>Fitch v LeBeau</i> (1969) 1 CA3d 320, 324, 81 CR 722</a>.</p>
<p>Examples include:</p>
<ul>
<li>A store owner has a duty to keep the floors safe for patrons&#8217; use, recognizing that their attention will be attracted by items on the shelves. <a href="http://online.ceb.com/CalCases/C2/8C2d126.htm" target="_blank"><i>Tuttle v Crawford</i> (1936) 8 C2d 126, 130, 63 P2d 1128, 1130</a>; <a href="http://online.ceb.com/CalCases/CA4/89CA4t1300.htm" target="_blank"><i>Craddock v Kmart Corp.</i> (2001) 89 CA4th 1300, 1306, 107 CR2d 881</a>.</li>
<li>An owner who is aware of a concealed condition that creates, in the absence of precautions, an unreasonable risk of harm must either repair the condition or warn the persons likely to come in contact with it. <a href="http://online.ceb.com/CalCases/C2/69C2d108.htm" target="_blank"><i>Rowland v Christian</i> (1968) 69 C2d 108, 119, 70 CR 97</a>, 104; <a href="http://online.ceb.com/CalCases/CA3/1CA3d320.htm" target="_blank"><i>Fitch v LeBeau</i> (1969) 1 CA3d 320, 324, 81 CR 722</a>.</li>
</ul>
<p>More broadly, an owner&#8217;s duty to use ordinary care may include a duty to make reasonable inspections of the premises to guard against possible dangers, to make the property reasonably safe for intended or foreseeable users and uses, and to warn of latent or concealed dangers. <a href="http://online.ceb.com/CalCases/CA2/273CA2d20.htm" target="_blank"><i>Beauchamp v Los Gatos Golf Course</i> (1969) 273 CA2d 20, 27, 77 CR 914</a>, 919.</p>
<ol>
<li><b>b.      </b><b><span style="text-decoration: underline;">Owner’s Obligation for the Conduct of Other’s Behavior </span></b></li>
</ol>
<p>In certain situations, an owner must act affirmatively to protect visitors² and employees from the wrongful conduct of other visitors. See <a href="http://online.ceb.com/CalCases/C4/6C4t666.htm" target="_blank"><i>Ann M. v Pacific Plaza Shopping Ctr.</i> (1993) 6 C4th 666, 674, 25 CR2d 137</a>.</p>
<p>For example, a business premises owner has a duty to protect invitees from: (a) visitors negligent conduct that threatens their safety if the owner has reasonable cause to anticipate or foresee such negligence and the probability of resulting injury; and (b) the intentional conduct of visitors who are known to be on the premises.</p>
<p>As for an owner’s liability for criminal acts of a third party, the owner of a business or public premises has a duty to secure it against <i>foreseeable</i> criminal acts that are likely to occur in the absence of precautionary measures, even when the owner does not actually know of the particular assailant&#8217;s presence or criminal intent. <a href="http://online.ceb.com/CalCases/C4/6C4t666.htm" target="_blank"><i>Ann M. v Pacific Plaza Shopping Ctr.</i> (1993) 6 C4th 666, 674, 25 CR2d 137</a>.</p>
<p>Foreseeability is the key word in holding a land owner liable for criminal acts of a third party.  Courts have been reluctant to conclude that the criminal acts of a third person were “foreseeable” absent circumstances such as prior similar criminal acts.  Even when criminal conduct is foreseeable, policy considerations and other factors may preclude imposing a duty, or a finding of breach of duty. <a href="http://online.ceb.com/CalCases/C4/14C4t814.htm" target="_blank"><i>Kentucky Fried Chicken v Superior Court</i> (1997) 14 C4th 814, 829, 59 CR2d 756</a>.</p>
<p>Therefore, it is more difficult to hold an owner liable for criminal acts of third parties than their own negligence or unreasonable conduct.</p>
<p style="text-align: center;"><img class="size-full wp-image-333 aligncenter" title="Watch Your Step" src="http://pocklingtonlaw.com/wp-content/uploads/2013/05/iStock_000009017861Small-300x199.jpg" alt="Watch Your Step" width="300" height="199" /></p>
<ol>
<li><b>c.       </b><b><span style="text-decoration: underline;">Notice of Dangerous Condition</span></b></li>
</ol>
<p>In most circumstances, the case will turn on whether there is a dangerous condition on the property and whether on the property owner is on notice of this condition.  Notice can come in several forms:  Actual or Constructive.  You can find a more in depth discussion in a separate blog to come.</p>
<ol>
<li><b>d.      </b><b><span style="text-decoration: underline;">Establishing Proximate Cause and Damages</span></b></li>
</ol>
<p>A visitor who has established that the property owner owed him or her a duty to protect against a dangerous condition, was on notice of this condition, and who establishes that the defendant breached that duty, must also establish that the defendant&#8217;s negligence was &#8220;an actual, legal cause&#8221; of the visitor&#8217;s injuries. <a href="http://online.ceb.com/CalCases/C4/25C4t763.htm" target="_blank"><i>Saelzer v Advanced Group 400</i> (2001) 25 C4th 763, 766, 107 CR2d 617</a>.  The same showing of causation applies where owner’s liability does not involve conduct of a third party.</p>
<p>In premises liability cases, proximate cause is generally established through a showing that the harm suffered by the visitor was within the foreseeable consequences of the danger created as a result of the owner’s negligence.</p>
<p>The most obvious yet important factor in having a case against an owner of a real property is establishing that visitor has in fact sustained damages.  More commonly, in premises liability cases, the visitor has sustained damages to his or her person and/or property.  A visitor’s recovery can expand to his or her mental and emotional distress damages.  <b></b></p>
<p><b><span style="text-decoration: underline;">EXCEPTIONS TO THE GENERAL RULE</span></b></p>
<p>The legislature and the courts have created several exceptions to the general rule that a property owner is liable for injury resulting from a failure to use ordinary care and skill, including the following:</p>
<ul>
<li>Furnishers of alcoholic beverages;</li>
<li>Firefighters, peace officers, and emergency medical personnel;</li>
<li>Recreational users; and</li>
<li>Trespassers on railroad locomotives and cars.</li>
</ul>
<p>These areas will be addressed in more detail in blogs to come.</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/a-property-owners-liability-injuries-on-the-property-and-what-needs-to-be-proven/">A Property Owners Liability: Injuries on the Property and What Needs to be Proven</a></p>
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		<title>I’m not married, but living with my partner. Do I have property rights?</title>
		<link>http://www.pocklingtonlaw.com/im-not-married-but-living-with-my-partner-do-i-have-property-rights/</link>
		<pubDate>Wed, 22 Mar 2017 22:29:29 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Family Law]]></category>

		<guid isPermaLink="false">http://pocklingtonlaw.com/?p=305</guid>
		<description><![CDATA[<p>In California, the division and distribution of property after divorce and death are governed by community property laws.  However, law has developed surrounding the application of the same laws and principles where the couple is not married. Due to the growing trend of couples living together while not married, the courts have created an approach [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/im-not-married-but-living-with-my-partner-do-i-have-property-rights/">I’m not married, but living with my partner. Do I have property rights?</a></p>
]]></description>
				<content:encoded><![CDATA[<p>In California, the division and distribution of property after divorce and death are governed by <a title="Do You Have An Interest In Your Spouse’s Business?" href="http://www.pocklingtonlaw.com/spouse-business-community-property/" target="_blank">community property laws</a>.  However, law has developed surrounding the application of the same laws and principles where the couple is not married.</p>
<p>Due to the growing trend of couples living together while not married, the courts have created an approach to determine whether there are property rights.  In two cases, In re <a href="http://law.justia.com/cases/california/calapp3d/34/345.html" target="_blank">Marriage of Cary (1973)</a> and <a href="http://law.justia.com/cases/california/calapp3d/44/758.html" target="_blank">Estate of Atherley (1975)</a>, California Court of Appeals held that the Family Law Act (Civ. Code, § 4000 et seq.) requires division of the property for non-married couples according to community property principles.  A conflicting case was ruled on in <a href="http://www.leagle.com/xmlResult.aspx?xmldoc=197557849CalApp3d529_1530.xml&amp;docbase=CSLWAR1-1950-1985" target="_blank">Beckman v. Mayhew (1975)</a> 49 Cal. App. 3d 529, where the Court rejected that non-marital gained the benefit of community property law.</p>
<p>To resolve the controversy, the Supreme Court in <a href="http://law.jrank.org/pages/3295/Marvin-V-Marvin-Palimony-Suit-1979.html" target="_blank">Marvin v. Marvin (1976)</a> held that: (1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision; (2) <b><span style="text-decoration: underline;">The courts should enforce express contracts between non-married partners except to the extent that the contract is explicitly founded on the consideration of sexual services</span></b>; (3) <b><span style="text-decoration: underline;">In the absence of an express contract, the courts should look to the intent of the parties by their conduct to determine whether an implied contract, agreement of partnership or joint venture, or some other tacit was understood between the parties</span></b>. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.</p>
<p><b><span style="text-decoration: underline;">What are the Consequences of Marvin?</span></b></p>
<p>In Marvin, the Court referred to <a href="http://scocal.stanford.edu/opinion/vallera-v-vallera-25642" target="_blank">Vallera v. Vallera (1943)</a> 21 Cal. 2d 681, 685 where the Supreme Court of California stated that &#8220;If a man and woman [who are not married] live together as husband and wife under an agreement to pool their earnings and share equally in their joint accumulations, equity will protect the interests of each in such property.&#8221;</p>
<p>The Court in Marvin reviewed numerous California decisions concerning contracts between non-marital partners and held that such decisions have established narrow and precise standard that, &#8220;a contract between non-marital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services.&#8221;  Further the Court in Marvin stated that, &#8220;the fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses.  Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a non-marital relationship when they entered into it.&#8221;</p>
<p>Therefore, based on the decision of Marvin, non-married couples may agree to pool their earnings and to hold all property acquired during the relationship in accordance with the law governing community property or to agree to hold such property as separate property of either partner.  Accordingly, such agreements are enforceable so long as do not rest upon illicit meretricious consideration.</p>
<p>In addition to enforcing express contracts that are not based on unlawful meretricious consideration, pursuant to Marvin, the courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or joint venture, (<a href="http://www.leagle.com/xmlResult.aspx?xmldoc=197279669Misc2d727_1607.xml&amp;docbase=CSLWAR1-1950-1985" target="_blank">Estate of Thornton (1972)</a>, or some other understanding between the parties. The courts may, when appropriate, employ principles of constructive trust (see <a href="http://www.leagle.com/xmlResult.aspx?xmldoc=197439711WnApp386_1352.xml&amp;docbase=CSLWAR1-1950-1985" target="_blank">Omer v. Omer (1974)</a> or resulting trust. Finally, a non-marital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received if he can show that he rendered services with the expectation of monetary reward. (See <a title="Hill v Estate of Westbrook" href="http://scholar.google.com/scholar_case?case=18075499499100455337" target="_blank">Hill v. Estate of Westbrook</a>)</p>
<p><b><span style="text-decoration: underline;">What Are the Arguments for and Against Property Rights?</span></b></p>
<p>In a concur and dissent opinion by Justice Clark, he stated that the majority opinion properly permit recovery on the basis of either express or implied in-fact agreement between the parties.  However, Justice Clark believed that the opinion should have stopped there and not attempt to determine all anticipated rights, duties and remedies within every meretricious relationship.  Accordingly, Justice Clark stated that the majority broadly indicated that a party to a meretricious relationship may recover on the basis of equitable principles and in quantum merit, yet failed to advise of the circumstances permitting recover, limitations on recovery, or whether their numerous remedies are cumulative or exclusive.  Conceivably, under the majority opinion a party may recover half of the property acquired during the relationship on the basis of general equitable principles, recover a bonus based on specific equitable considerations, and recover a second bonus in quantum meruit.</p>
<p>Thus, according to the dissent, the strongest argument against Marvin is that the decision is too broad in some aspects.</p>
<p><b><span style="text-decoration: underline;">What Does the Argument Against Marvin Aim For?</span></b></p>
<p>Essentially, Justice Clark&#8217;s dissent clearly establishes that when the parties to a romantic relationship show by express or implied agreement they intend to create mutual obligations, the courts should enforce the agreement. However, in the absence of an agreement, the courts should stop and consider the ramifications before creating economic obligations which may violate legislative intent, contravene the intention of the parties, and surely generate undue burdens on our trial courts.</p>
<p>As the legislature has failed to enact statutory law that conflicts with the State Court’s ruling, this area of law will likely stay on the books and protect the expectations of those who have a living arrangement outside of marriage.</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/im-not-married-but-living-with-my-partner-do-i-have-property-rights/">I’m not married, but living with my partner. Do I have property rights?</a></p>
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		<title>Do You Have An Interest In Your Spouse’s Business?</title>
		<link>http://www.pocklingtonlaw.com/spouse-business-community-property/</link>
		<pubDate>Mon, 19 Sep 2016 18:05:30 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Family Law]]></category>
		<category><![CDATA[business]]></category>
		<category><![CDATA[community property]]></category>
		<category><![CDATA[divorce]]></category>
		<category><![CDATA[pereira]]></category>
		<category><![CDATA[van camp]]></category>

		<guid isPermaLink="false">http://pocklingtonlaw.com/?p=280</guid>
		<description><![CDATA[<p>One important issue that often comes up in divorce concerns is whether the community has an interest in a spouse’s separate property business.  Before I provide an explanation, it’s important to understand the laws of community property in California. General California Community Property Law California is a community property state.  This means that all property [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/spouse-business-community-property/">Do You Have An Interest In Your Spouse’s Business?</a></p>
]]></description>
				<content:encoded><![CDATA[<p>One important issue that often comes up in <a title="Divorce Attorney" href="http://www.pocklingtonlaw.com/divorce-lawyer-walnut-creek/" target="_blank">divorce</a> concerns is whether the community has an interest in a spouse’s separate property business.  Before I provide an explanation, it’s important to understand the laws of community property in California.</p>
<h2>General California Community Property Law</h2>
<p>California is a community property state.  This means that all property acquired during marriage will be community property, with few exception, and each spouse will retain a one half interest in the property.  However, this rule is not absolute.  This general rule can be rebutted by “tracing&#8221; the funds used to purchase the property to a separate property asset.  One example is where husband purchases a home during the marriage with funds that came from his residence prior to marriage.  He would have a separate property interest in the newly acquired real property because of the use of his separate property funds.</p>
<p><img class="aligncenter size-medium wp-image-286" title="Community Property" src="http://www.pocklingtonlaw.com/wp-content/uploads/2012/09/community-property-300x147.jpg" alt="Community Property" width="300" height="147" srcset="http://www.pocklingtonlaw.com/wp-content/uploads/2012/09/community-property-300x147.jpg 300w, http://www.pocklingtonlaw.com/wp-content/uploads/2012/09/community-property.jpg 509w" sizes="(max-width: 300px) 100vw, 300px" /></p>
<h3>Why Is the Community Entitled to An Interest In A Separate Property Business?</h3>
<p>Separate property includes property acquired prior to marriage, after permanent separation, or by gift, inheritance.  Typically, income from separate property is separate, but the fruits of the community&#8217;s expenditures of time, talent, and labor are community property.</p>
<p>So why is this important as it relates to your interest in a separate property business?  Where community efforts increase the value of a separate property business, it becomes necessary to quantify the contributions of the separate capital and community effort that increase in value.  The necessity of apportionment arises when, during marriage, more than minimal community effort is devoted to a separate property business.  The community is entitled to the increase in profits attributable to the community endeavor.  Accordingly, courts must apportion profits derived from community effort to the community, and profits derived from separate capital are apportioned to separate property.  <em><span style="text-decoration: underline;"><a href="http://scholar.google.com/scholar_case?case=2741371629595351818">In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850-852</a></span></em>.</p>
<h3>Distinction Between A Business Where Value is Derived by Community Efforts Verses Separate Property Investment/Capital</h3>
<p>Following this change in law, California courts have developed two alternative approaches to allocating business profits and have endeavored to adopt that formula which is most appropriate and equitable under the circumstances.  Under the <em>Pereira</em> approach, community income is defined as the amount by which the actual income of the separate estate exceeds the return which the initial capital investment could have been expected to earn absent the spouse&#8217;s personal management.  <a href="http://scholar.google.com/scholar_case?case=12926753250780181939&amp;q=Beam+v.+Bank+of+America+%281971%29+490+P.+2d+257&amp;hl=en&amp;as_sdt=2,5&amp;as_vis=1" target="_blank"><span style="text-decoration: underline;">Beam v. Bank of America (1971) 490 P. 2d 257</span></a>.  Under the <em>Van Camp</em> approach, the community is allocated a share of the increased value equal to the fair value of the community services less amounts withdrawn to meet family expenses.</p>
<p>So, depending on varying circumstances of each case, the court will apply the formula that best meets the character and nature of the separate property business and the principal factor contributing to its increase in value.</p>
<p style="padding-left: 30px;"><strong>A.    </strong><strong>Value of Business Primarily Derived From Investment</strong></p>
<p style="padding-left: 30px;">One example of where the increase in value was primarily a result of investment was in <span style="text-decoration: underline;">Schulman v. Schulman (1976).</span>  The business owner spouse was the sole owner and proprietor of a wholesale and retail meat business.  The court applied the <em>Van Camp</em> formula because it attributed the increase in value of separate property business to the population growth in the area during the time of the marriage, and the business&#8217;s expansion made possible by the SBA loan rather than the business owner&#8217;s personal efforts being principally responsible for the growth and continuity of the business.</p>
<p style="padding-left: 30px;"> <strong>B.     </strong><strong>Value of Business Primarily Derived From Community Efforts</strong></p>
<p style="padding-left: 30px;">Conversely, in <a href="http://scholar.google.com/scholar_case?case=11628385154345736268" target="_blank"><span style="text-decoration: underline;">Patrick v. Alacer Corp (2011) 201 Cal. App. 4th 1326</span></a>, the court applied the <a href="http://en.wikipedia.org/wiki/Pereira_approach" target="_blank"><em>Pereira</em> method</a> because the court held that business profits were principally attributed to efforts of the community.  Alacer Corporation was maker of the popular Emer&#8217;gen-C vitamin supplements and the company indisputably increased in value during the marriage, and the owner spouse put &#8220;much more than minimal efforts into the business.&#8221;</p>
<p>Once a California court ascertains the amount of community income, through either the <em>Pereira</em> or the <a href="http://en.wikipedia.org/wiki/Van_Camp_accounting" target="_blank"><em>Van Camp</em> approach</a>, it deducts the community living expenses from community income to determine the balance of the community property.  It follows that the community portion is significantly less where the <em>Van Camp</em> formula is applied.</p>
<h2>So Which Formula Is Best For Your Case?</h2>
<p>The non-owner spouse typically argues in favor of <em>Pereira</em> claiming that the growth and expansion of the separate property business of the owner spouse during the course of marriage was due to his effort, skill, talent and community labor.  On the other hand, the owner spouse will argue in favor of <em>Van Camp</em> claiming that the growth of business was principally due to external factors.  Although, the courts have made it clear that there is no general rule and the application of either theories would vary depending on the circumstances of each case, it is a logical conclusion that <em>Pereira</em> will be used where the business is labor intensive and/or requires special talent of the owner.  <em>Van Camp</em> will be most effective where the growth is due to changes in population, economy and trend.</p>
<p><strong>Disclaimer:</strong>  Nothing in this blog should be considered legal advice.  Without considering the particular facts of your case, attorneys with <a href="http://www.pocklingtonlaw.com" target="_blank">Pocklington Law Offices</a> are unable to unable to offer advice as it relates to a person’s particular case.  If you wish for our office to consider taking your case or to offer legal advice, please contact our office to schedule an appointment by calling (925) 295-7348.</p>
<div>
<div>
<p>[1] “The Community” refers to the property acquired by a couple during marriage in California.</p>
</div>
</div>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/spouse-business-community-property/">Do You Have An Interest In Your Spouse’s Business?</a></p>
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		<title>Types of Child Custody Agreements</title>
		<link>http://www.pocklingtonlaw.com/types-child-custody-agreements/</link>
		<pubDate>Sat, 26 Mar 2016 00:55:18 +0000</pubDate>
		<dc:creator><![CDATA[Dan Pocklington]]></dc:creator>
				<category><![CDATA[Family Law]]></category>

		<guid isPermaLink="false">http://pocklingtonlaw.com/?p=190</guid>
		<description><![CDATA[<p>Child custody battles are one of the most sensitive legal processes that parents go through. The main goal of custody litigation is to see to it that the best interests of your child or children are served. The parental preference rule is the most common practice among most states. If both you and your spouse [&#8230;]</p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/types-child-custody-agreements/">Types of Child Custody Agreements</a></p>
]]></description>
				<content:encoded><![CDATA[<p>Child custody battles are one of the most sensitive legal processes that parents go through. The main goal of custody litigation is to see to it that the best interests of your child or children are served.</p>
<p>The parental preference rule is the most common practice among most states. If both you and your spouse are presumed fit for child custody, the court initially recommends that you both agree to a mutual arrangement that will work best for your child. On the other hand, if neither you nor your spouse is fit for custody, custody may be awarded to a third party as may be determined by the court. Let&#8217;s take a look at some of the main types of <a title="Child Custody Lawyer" href="http://www.pocklingtonlaw.com/child-custody-attorney-walnut-creek-ca/">child custody</a>.</p>
<p><img class="aligncenter size-full wp-image-191" title="Child Custody Battle Outcomes" src="http://pocklingtonlaw.com/wp-content/uploads/2012/03/child-custody-battle-outcomes.jpg" alt="Child Custody Battle Outcomes" width="397" height="302" srcset="http://www.pocklingtonlaw.com/wp-content/uploads/2012/03/child-custody-battle-outcomes.jpg 397w, http://www.pocklingtonlaw.com/wp-content/uploads/2012/03/child-custody-battle-outcomes-300x228.jpg 300w" sizes="(max-width: 397px) 100vw, 397px" /></p>
<p><strong>Physical Custody. </strong>Physical custody is a parent&#8217;s right to live with his or her child. The court may decide to assign joint physical custody to both parents or sole physical custody to one parent, always in the best interest of the child. The child primarily lives with the parent with sole custody with the other parent granted visitation rights.</p>
<p><strong>Legal Custody. </strong>Parents charged with legal custody have the right and obligation to provide the proper upbringing of their child. They should make sure that the child&#8217;s physical, mental, educational, social, emotional or even spiritual needs, for example, are taken care of. Legal custody may be granted jointly to both parents or solely to one parent.</p>
<p><strong>Joint Custody. </strong> Normally, the most ideal option is joint physical and legal custody wherein both parents are mandated to decide what is best for the health, education, housing, legal, emotional and social needs of the child, among others. The court may also decide to grant joint legal custody to both parents but sole physical custody to one parent or alternate physical custody to both parents but sole legal custody to one parent. Whatever joint custody arrangements you and your spouse agree upon, what is important is that both of you are able and willing to share legal responsibilities and physical care of your child according to his or her preferences and needs.</p>
<p><strong>Sole Custody. </strong>This is the traditional type of child custody where one parent is given full custodial rights to the child with the other parent mandated to give child support and having only visitation rights. The custodial parent possesses sole legal responsibility, physical care of the child and ultimate authority and control over the child to include sensitive issues like religious and social upbringing.</p>
<p><strong>Split Custody. </strong>This custodial arrangement is applicable when there are two or more children involved. Under this custody type, a designated number of children stay with one parent while the rest stay with the other parent. In alternating periods as agreed upon, the two groups of children may switch residences. Each parent must assume full parental responsibility for the children while in his or her care.</p>
<p><strong>Third Party Custody. </strong>The court may award child custody to a third party if both parents die, if one parent dies but the surviving spouse is unfit or if both parents are unfit due to a history of violence, alcohol addiction or drug abuse, for example. Possible persons qualified for third party custody are grandparents, uncles, aunts or stepparents.</p>
<p>What then is the best approach to a child custody battle? Custody of your child should be viewed by you and your spouse not as a battle but as a cooperative effort to secure the best interest of your child. Look for the best lawyer to help you go through the legal process and ensure a rosy future for your child.</p>
<p><strong>If you need help in a child custody case in the San Francisco Bay Area, call <a href="http://www.pocklingtonlaw.com">Pocklington Law Offices</a> for help at (925) 295-1304. We&#8217;re ready to help you achieve the best possible outcome for your family.</strong></p>
<p><a rel="nofollow" href="http://www.pocklingtonlaw.com/types-child-custody-agreements/">Types of Child Custody Agreements</a></p>
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