BY MORTON J. GRABEL, ESQ. & MARK R. DENNING, ESQ.
THE LAW OFFICE OF MORTON GRABEL, APLC
As I am sure you can imagine, all dog bites are shocking to the victim especially if it was unexpected and unprovoked. Further, some dog bites result in serious injuries; and in the worst case death can result from the most vicious attacks. Also, a dog bite can result in permanent scarring, nerve damage and a significant risk of infection. Often there is residual psychological harm that extends far beyond the physical injury. Therefore laws have been passed to protect and/or compensate the victim of a dog attack based on the legal theories of strict liability and negligence.
I) You should note in California, there is no "one free bite" rule.
II) STRICT LIABILITY. Certain California dog bite statutes impute strict liability on the dog owner for damages to any person bitten by the dog. It is not even necessary to show the owner was negligent, or had knowledge the animal was vicious.
California Civil Code section 3342 provides as follows:
3342. (a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.......etc etc
This statute is “designed...to prevent dogs from being a hazard to the community.” Davis v. Glaschler (1992) 11 Cal.App.4th 1392, 1399. The policy behind the law is that innocent victims should have their damages covered by those who choose to own dogs that bite. In essence, “the owner is virtually an insurer of the dog’s conduct”, a dog owner is expected to be vigilant in preventing his dog from biting anyone.
Under the dog bite statute, all the victim needs to show to recover from the dog owner is the victim was “in a public place or lawfully in a private place” when bitten. See Delay v. Braun (1944) 63 Cal.App.2d 8, 146 P.2d 32 (plaintiff was lawfully on defendant’s property when bit by defendant’s dog while walking on the driveway of the home to find the defendant to discuss defendant’s tutoring of plaintiff’s grandchild).
III) There is also a second theory of strict liabilitywhen the dog owner defendant knows of certain propensities, for example a tendency to bite, attack, scratch or aggressively jumping on humans [ a leaping dog]. (See Drake v. Dean (1993) 15 Cal.App.4th 915, 19 Cal.Rptr.2d 325). This theory is useful when there is no actual bite. For example, if the dog jumped and knocked the victim down as in Drake v. Dean. The owner’s or keeper’s knowledge of a dog’s vicious or dangerous propensities may be inferred by (1) the general reputation of the dog, (2) the size and breed of the dog, or (3) the fact that the dog is kept chained or muzzled. (Smith v. Royer (1919) 181 Cal. 165, 170).
IV) NEGLIGENCE- Another theory of liability is to show the dog owner was negligent. One way to show negligence is when the owner allowed the dog to run uncontrolled in violation of the local leash law; for example inboth Temecula and Murrieta, there are municipal codes, and often other local laws intended to protect the public from animals that are unleashed. This is called ‘negligence per se” and places the burden on the defendant to give explanation for the violation of the local law.
V) LANDLORD’S LIABILITY. A landlord can be held liable for failure to remove a tenant’s dangerous dog from the property. In Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, the court stated: “We hold that a landlord has a duty to exercise reasonable care in the inspection of his commercial propertyand to remove a dangerous condition, which includes a dog, from the premises, if he knew, or in the exercise of reasonable care would have known, the dog was dangerous and usually present on the premises.” In that case, the plaintiff was bitten in a liquor store by a dog owned by the tenant who was operating the business. The court noted it is reasonably foreseeable that guard dogs in commercial establishments open to the public will injure someone. The court also held the landlord could not avoid liability by failing to inspect the premises and thereby claim that he had no knowledge of the dog.
A residential landlordwith actual knowledge of a tenant’s dangerous dog can be held liable to an injured victim, but the landlord has no duty to inspect the premises for such an animal. The landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.” Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.
*The Office of Morton Grabel, APLC represents dog bite victims under Civil Tort Law. This office has recovered millions of dollars for our clients in Riverside County.
Please note by reading the information above & herein, no attorney-client relationship has been created. Moreover, the information provided herein is not be relied upon as legal advice for your specific legal needs. Should you have legal questions feel free to contact Attorney Morton J. Grabel in Temecula at (951) 695- 7700. Mort, originally from Philadelphia PA, attended an ABA Law School, has an MBA, a Real Estate Broker's License, a CA Nursing Home Administrator's License and is a member in good standing of various local Chambers of Commerce.
Written by Robert Nickerson
Here's a quick scenario for you. Let's say you have a child that wanted some extra money to help buy his dream home. You want to be sure that he'll be safe with it, but you also want to check your estate plan (if you have one already). You understandably want to figure out how to handle this kind of gift if you can even call it a gift at all. So your question is probably whether to make reference to it in the estate plan or to treat it as an early development inheritance.
In order to figure that out, here are some things you need to figure out.
You first need to figure out what it is you want to give your child: a loan or a gift. It's hard to figure that out as the lines are often blurred. It's best to remember that the two are completely different things. A loan is when you expect to be paid back, and I mean that fully. Not a partial loan or a "Pay when you can and maybe get it all done" loan. Even if it wasn't documented, if it's something your gonna get back, then it's a loan. If it's in the category of not expecting any payment back, then it's a gift.
There are a cople of reasons why it's important to distinguish the two. If it's a loan, then there is a set debt and is now an asset of the estate. For example, if you were to loan out $200,000 to a child and it's not repaid before you die, they'll still owe money to the estate.
If it was a gift, then the only thing you'll need to think about is with it be being reported as a gift property. It will not likely affect the estate unless noted.
A good way to handle a gift is to note that the gift was an advancement and to use that as a reduction in the inheritance share.
It'll be more complicated if the funds were a loan. The debt can be forgiven, but it'll be a tax nightmare without the right paperwork. Since it would be a part of the estate, a personal representative should be able to recover it. It'll help calculate it in terms as a part of the inheritance.
Anyone has a lot of options with how money and inheritance is treated when their alive. When their dead, the options become narrow, so it's better to think about this now. Talk to your attorney about it.
Written by Robert T. Nickerson
Estate planning is not a process where one style will do for anyone. It's very personal that requires each one to be customized. Perhaps with the exception of a significant other, it can become intimidating to figure out those tough decisions when there are no close family members. It's more common then people realize, which makes a lot of people put off their strategy to finish their estate plan or not even at all. If your having trouble, here are some ideas that can put you at ease.
Plan for Incapacity
Everyone should have someone ready to direct their decisions for health care and a power of attorney. This is best done through an advanced directive for healthcare document. This be able to legally determine how your demands are carried through, in the event where something bad (car crash, coma, etc…) prevents you from making those decisions. Without this piece of paper, not even your wife can make legal choices for you. Without it, your relatives with be dealt with a bureaucratic court proceeding to plan out a guardianship or conservatorship to appoint someone to make these decisions (which could end up as someone you don't know)
Consider a Trust
This is a legal document that can used to manage your assets and help carry out your decisions in the event of your death. Its has two elements in your favor. A trust will avoid a probate issue and it allows you to give out an inheritance in a protected manner.
Probate is a court development that figures out who is entitled to an asset in your name when your dead. The American court system will send out notice to your closed relatives, known as heirs. If your not married or ever had children, then your closest would be your parents. Don't have parents? Then your sibling get control. No brother or sister? Then it's be your grandparents, then great aunts, uncles, and cousins. It’s a possibility that your closest relative on paper could be someone you've never met or don't want in charge.
If you don't have at least a will, the "state determined closest relative" will be the one to inherit your stuff. Though even with the will, they still have a chance to interrupt, find out about the worth of your assets and go to court to try and change that.
The best strategy is to have a trust created. You should plan to have your assets own within the trust, thus avoiding a potential probate issue.
Whose is Charge?
Each trust needs someone to be the leader once your gone, which is called a "trustee". A trustee can either be a real person or a business like a financial institution. A trustee ensures your assets are distributed to the guidelines you’ve set into place. This is why it's important to chose someone or something that is responsible and trusting.
If there isn't anyone one you trust, then your best bet is to select a professional, such as an attorney, accountant, or a trust company. These people will charge you for their services, but it’s often worth it to know that your assets are in good hands.
What to Do with Your Assets
Let's say you have parents you want to be sure are taken care of. Or someone else in the family or even a friend. It can be difficult to figure out just how one is benefited from your assets. Your attorney can review the best way to be carried out. Again, a trust may be the best way.
Charities can also be included in estate plan. If the gift to the charity is…generous, then the organization can be contacted before to ensure that the contribution is going to the area you desire.
Don't Forget the Animals
We don't want to keep Rover or Lassie out of your plan. Of course we want to make sure that your pets will be cared for after your gone. This can be done by leaving them with someone who can be a good owner. Or a pet trust can also be set up. It's just important to plan out for your pet, just as a parent would for a
Written by Jeff Pack
Fraud prevention experts provided insight Saturday, Jan. 26, to a room of roughly two dozen attendees at Wildomar Library at an event sponsored by the Friends of the Wildomar Library.
Attorney Jeffrey C. Nickerson, who specializes in estate planning with a focus on special needs trusts spoke at length about elder abuse and fraud.
He told the crowd that $40 billion is lost in telemarketing fraud each year.
He said, worldwide, nearly 35.6 million people live with dementia and that the number of people suffering from the disease will double by 2030 and more than triple by 2050, according to the World Health Organization.
A person in the U.S. develops Alzheimer's disease every 66 seconds.
"That's because people are living longer," he said. "So it's important to recognize that those elderly people are vulnerable to things like fraud and abuse."
Nickerson said that according to the National Council on Aging – 1 in 10 Americans aged 60 and older have experienced some form of elder abuse.
The National Center of Elder Abuse said that in 2010 there were 5,961,568 elder abuse cases brought in the United States.
"But this is a really underreported crime," Nickerson said. "Most of the time, if a family member is suspected of doing something like this, the victim mostly just wants someone to go in and make the family member stop abusing them. They don't want their son or grandson arrested."
Nickerson said that California has the highest number of reports of elder abuse and that Riverside County had 71 cases last year.
"Although I think that number is relatively low," he said.
First, Nickerson said, the most important way to minimize the chances of an elderly person in the family suffering from abuse or fraud is to visit them often and consistently.
Nickerson identified "anyone" as a perpetrator of fraud, but said more often than not, people that take advantage of the elderly are caretakers, friends and most often, relatives.
He shared stories generated from his office that surrounded family members "making up stories" to get money from parents or grandparents.
"They call and say they forgot to make a mortgage payment and they are going to lose the house," Nickerson said. "If they don't get $3,000 or $4,000 today, the bank is going to take it."
Obviously, Nickerson said, that parent or grandparent doesn't want to see their grandkids without a place to live, so they get the money to them.
He said one indicator of fraud and abuse is exploitation and suggested that family members pay attention to sudden changes in their loved one's financial situation and changes to their personality and mood.
"They may seem uneasy or almost scared," he said.
He said another big indicator is the behavior of the caretaker.
"Sometimes you will go to visit a loved one in a care facility and the caretaker says the family member is asleep or isn't feeling well," Nickerson said. "Isolation is a big one. These people will isolate the victim from family members that could discover the crime."
Nickerson shared resources and information for people that suspect that a loved one is being taken advantage of and abused.
Adult Protective Services can be reached at (951) 791-3250, and the Riverside County Office on Aging and Disability Resource Center is available at (951) 867-3800.
By Morton J. Grabel, Esq.
Although no one really wants to sue a nursing home or elder care facility because it is a place of good intentions and a provider of care primarily to the elderly. However, there are times when the facility should be held legally accountable for their negligent and/or abusive conduct. For example, a lawsuit should be filed when: 1] negligence, 2] neglect, or 3] abuse on the premises causes injury.
What Kind Of Actions and/or Failures To Act Should Lead To the Filing Of A Lawsuit?
There are numerous accidents, willful and/or intentional acts, and failures to act that may cause a health care facility to be legally responsible; either based on the conduct of an employee or on a policy, procedure or on-going practice in the facility. Here are a few examples:
There Are Regulations On The Standard of Care in addition to State of California Statutory Scheme:In addition to state laws, if a nursing home accepts Medicare, the facility must follow Federal Regulations that establish the standard of care. One of these regulations is 42 CFR sec. 483.25 (h) which provides:
Proving Liability Can Be Complicated
When a resident is injured at a care facility, it is not always obvious what exactly went wrong and who might be legally responsible. The evidence available is often incomplete or medical records may be self-serving for the nursing home. Examples such as medical record pages either "disappearing" and or re-numbered or being re-written to camouflage negligent conduct or overt abuse. In cases like these, your best first step would be discussing the situation with an experienced attorney like Morton J. Grabel, a former Nursing Home Administrator and Hospital Administrator.
*This office sues nursing homes and related health care providers/facilities. This office has recovered millions of dollars for residents of the Inland Empire.
Please note: the information provided herein is general and not be relied upon for your circumstance. For further information or if you have any legal questions please call the Law Offices of Morton J. Grabel, in Temecula at (951) 695-7700. Mort originally from Philadelphia, PA is a graduate from an ABA Law School, has an MBA, a California Nursing Home Administrator's License & a California Real Estate Broker's License [both active and in good standing].
Written by Robert T. Nickerson
I have a question for you all? Did you fulfill your New Years Resolutions or at least get a head start on it? For a lot of young people, one common resolution is to try and be more of an adult. Some of those goals include getting to the gym more often or eating more then Doritos, but another relatable one is to be wiser with their finances. Though anytime is good, perhaps today is the right time to build a new checklist that could apply for an estate plan.
Here are some things to add to that last to feel more like a mature adult.
Contact our office (Through the contact page, email or phone) for more information if you'd like our help with any of this.
Written by Robert T. Nickerson
It's now 2019. We like to see January 1 as the beginning of something good. This is the time to look into the clutter and figure out what needs to be cleaned up and up to date. One of those things should be your estate plan. Even if this is something that can't be done today or tomorrow, when is a good time to do this. Here are five easy things you can accomplish to have a better ease of mind for your estate plan.
1. Sign your Estate plan.
You'd be surprised by how often a lot of people put off something simple as using a pen to make the estate plan official. Perhaps now is a good time to give your attorney a call to get that out of the way. Let's give you a situation; someone close to you has just passed away. You'd probably get into contact with whoever did your estate plan to ensure that everything was good to go for their plan and yours. Any will and trust attorney will be able to meet, discuss, redraft, and finalize those ideas, get it down on paper, and be ready for you to dot the line. All you'd have to do then is sign and you could better in a better state of ease.
2. Call Your Attorney if you have nothing planned
Now is the best time to look through your local directory or even Google search to figure out how to serve your needs the best. Yes, getting around to making these decisions can be difficult, but it's better to tackle the stuff now rather then face a flood of problem in the long run.
3. Be sure your have the right successors on paper
If you do have something prepared, you may want to get them out the check and see if the people set to run your estate are still the people you want. This also includes personal representatives, doctors, lawyers, and anyone else you see playing a key figure. You want the right people making the right decisions if something should happen to you.
4. Think about your beneficiaries
Did you name your spouse as a beneficiary? What about your brother or your sister? Your children maybe? Just somebody that you want to receive something? Now is the time to look into your bank and retirement accounts to see who is a confirmed beneficiary as what you have down on an estate plan may not be in sync with your financial department. Make sure that your institution is aware of who you want as a beneficiary.
5. Write a digital asset instruction letter
Law offices typically have this form and your attorney can help write one with you. In this day and age, people use Facebook, Instagram, Snapchat, and a variety of types of social media, along with the login information for other useful websites like banking, health care providers, online shopping, and more. If your one of these people who like to stay connected, then you should let the people you want to have a way to gather that information of usernames and passwords once your gone. You'll have to decide that if you have an Instagram account whether you want it closed or not once your gone. If you figure this stuff out in advance, your family and friends will know what their supposed to do.
Call Our Office for More Information
Written by Robert T. Nickerson
How may of you recall the famous Elmo & Patsy Christmas novelty song "Grandma Got Run Over by a Reindeer"? The one where a drunken grandmother abruptly leaves a Christmas Eve party, gets run over by reindeer belonging to Santa Claus and the family still tries to go on with their annual holiday festivities. A good question would arise; what would be the legal consequences from this odd tragedy?
Here's some other details not in the song. Grandma is taken to the hospital where she is unconscious, has shattered ribs and a broken hip. The doctors declare grandma legally incompetent. So how would the family go about with her estate plan in this Christmas Eve? Here are a few options.
The first option would be that grandma never had a health care plan ready to go. This means either the issue was never addressed in a will, or one was never drafted. Grandpa is told that he cannot bring his wife home as he has no legal authority to make any decisions for her. He instead would have to go to probate court to make his case about being her power of attorney. This will make the process time consuming and very complicated. Even if an emergency temporary guardianship was made, there would be no way for grandma to come home in time for Christmas. It can take many months and thousands of dollars for grandpa to sign and finalize a guardianship. Since grandma never made a Durable Power of Attorney, grandpa wouldn't be able to take money out of her account to pay for her care. Grandpa would have to go back to probate court to file to become a legal conservator, file again for a financial plan on how to spend grandma's money and even permission to be protected from a Medicaid lein. So with the thousands of dollars putting financial stress on the family, what would grandpa do? Sue Santa Claus of course. But even with a potential settlement, grandma would have still needed to put it into a trust. You wouldn't be able to image the estate taxes needed to play without a shelter. What a Christmas, huh?
The second option is that grandma got a health care proxy so that grandpa is able to make legal medical decisions. With some smart choices, grandma is able to come home for Christmas. She'll need some care, but she'll still be there with the family. At the same time, an ambulance chaser is tying to persuade grandpa to make a big lawsuit against Santa. Grandpa doesn't want to sue Santa, but the medical bills are high and isn't sure that he'll be able to pay for them. Though he considers going through with the lawsuit, he finds something better. Using grandma's power of attorney, grandpa is able to take money out of grandma's account in order to pay for those bills. He's also able to use that money to hire a proper attorney to protect their assets and still use their medical coverage. Grandpa ultimately never sues Santa. He and grandma had an estate plan and will have a happy holiday even if she did get run over by a reindeer.
Be sure that your family is protected.
Santa Claus is coming to town and Christmas is in full swing. A time for joy, a time for holly, and of course, a time for family and getting together with them. There are a lot of things to bring up with them. Perhaps it's time to take the opportunity to build a new or update an estate plan and talk to the family about it. According to a recent CBS article, "Our Families: The Important Papers", in the event of an unfortunate event, the best gift you can give is an ease of mind by making sure your financial and legal affairs are prepared for the ones you love the most.
If you need assistance or have questions, we are here to help. Call us at (951)-200-4921
So what needs to be done?
The first and most important thing to do is to gather all your personal and important documents. They need to be placed in a secure place (a safe or a locked file cabinet) Along with them should be a list of people and contact information. This should include close family, physicians, and attorneys. And of course, you should create a set of instructions on where this stuff can be found and distribute it to those you want with that information. Having someone else that can get to this will make it easier should something happen.
Ensure Your Wishes will be followed & are up to Date
If you don’t create a Will or a guardianship for your children, the state has a plan, but a complicated one. The family will end up with a lot of red tape and bureaucracy. If something should happen to you or you become incapable of making decisions, you don't want your children to be placed in custody of relatives you don't trust or the wrong people in general. Think about people who you think could be good backup parents. You may want to check your will and estate plan to be sure the people you have on paper are still the same you want with that responsibility. If it's been more then three years, you may want to check with your attorney.
Plan Your Legacy
If your children are very little, their already going to want to know a lot from you and about you. Memorializing your legacy will play a big part of a will or estate plan. Think outside the box of a traditional setup and give a present of a legacy video or letter. Your own words and passion will be something that your family can cherish forever.
No one can love your family like you can, so be sure that your wishes are reflected and can be legally enforced. Contact a professional that you know can handle an important matter.
For more information, give our office a call and we can help you plan your legacy.
Written by Robert T. Nickerson
No one ever said that the process of divorce was going to be easy. It require an amount of time to pick up the pace, but for woman, they can be targeted as the most affected financially. As said in a report by the UBS Global Wealth Management, about 56% of married women rely on their significant others to deal with financial arrangements and investments. Because of this, it's easy for many women to feel overwhelmed during a divorce.
Emotion will cloud a lot of more rational decisions that need to be made. It's important to stay focused on maintaining certain issues. This includes making financial choices, especially if you still have children, regardless of age.
There are a lot of other problems that will arise, such as custody and property distribution that'll require immediate attention. The future and your plans for it are just as important and also need to be looked into. It's never too early to approach to deal with this task that's often pushed aside (do it for your children). So here are some good pitfalls to avoid that many divorcing people do.
1. Not Reassessing Their Current Will
Now that your no longer married, you'll have to look at your old will to see what needs to be changed. This applies to assets and an update will reflect that. If your significant other was a beneficiary, then that will need to be changed to avoid trouble in the long run.
2. Not Looking Again at Your Children's Guardianship Plan
None of us like the idea of seeing someone else raising our children. However, this is crucial in order to plan for the worst. If a guardian is not selected, it's hard to tell which person, even if their close, would acquire custody of the kids of you were to die. If your husband had made a guardianship plan before, it may be a good time to rethink that. The previously chosen guardian may be a former spouse's family member or a close friend.; someone that your no longer confortable with. Your now in a position where only you can make that decision. This is something that needs to be decided on before something should happen to you. If you don't want that person to be a former spouse, you need to find someone else immediately.
3. Not Planning for All Assets
Chances are, you may be awarded a portion of your former spouses deferred savings, like a 401, IRA, or some other savings plan. Many divorced woman are not aware with how many assets they had when they were married.
Once you have a better look at your fair share, it's needed in order to plan the exact amounts for your beneficiaries for those assets, which is already a crucial part of your estate plan.
4. Failing to Incorporate Trusts Into Their Estate Plan
You never know what's going to happen and trusts can help prepare your assets in various situations, especially if you have adult children. For example, your adult children may have credit issues or their own divorces. Having a trust ready can guarantee that your cash will still go to whomever you want it to go. Trusts can even be used for other things like postponing distribution until your children are eighteen.
5. Failing to Plan at All
The single biggest mistake someone can make is having nothing planned at all. According to a 2016 Gallup poll, Nearly 60% of Americans don't have a will or an estate plan in place. There's a lot of people that believe that their assets will automatically go to their next of kin, which is untrue. Unless if something is set up, the assets will go into probate, which is a timely and costly process. This will set up your children into spending a lot of money in order to see any of those assets. All this will do is cause more pain. While various states have their own probate laws, most are left to either receiving little or no assets at all. It's always important to have an estate plan in place, even if that’s not on you mind.
6. Not Seeking Help from a Professional
A lot of woman who are unfamiliar assume they can do it by themselves. A financial advisor who understands estate planning can be valuable during this time. It's also advised that you seek out an experienced lawyer who specializes in estate planning. Avvo and Justia are good places to begin looking and can even narrow your search based on your location and needs. Without a professional, this could make you overlook area you could benefit from.
Jeffrey C. Nickerson - Estate Planning Attorney - My Passion is Special Needs Planning!