I got sued? Now what? 8 Tips on What to Do, with Mika Domingo
Got sued? Don't know what to do next? Then listen to this episode of I Know a Lawyer with Mika Domingo of MS Domingo Law Group, PC. Mika provides 8 tips on what to do when you are being sued. Mika is a trust and estate litigator with a full litigation background. She provides some excellent tips that every person should know so they don't panic or miss out on important litigation deadlines. In the episode, Mika discusses:
The importance of remaining calm and reading the documents carefully (02:01)
Gathering information at the beginning of the process (06:52)
Choosing the right attorney for you (09:10)
Different options on how to respond to the lawsuit (10:44)
Properly assess your finances (15:21)
Improperly assuming your attorney's fees will paid by opponent (17:50)
Listen and trust your attorney (19:41)
Be prepared for a long case potentially (22:14)
Thank you to Mika Domingo for joining the show today. You can contact Mika at her website here, or call her at 925--891-5006.
Stay to the end of the show to listen to a special announcement about I Know a Lawyer.
As always, this podcast is brought to you by McKenna Brink Signorotti LLP, located in Walnut Creek. Check out our website at mckennabrink.com. The podcast is not intended to provide legal advice. Consult an attorney for legal advice, not a podcast.
Transcript
Ryan Lockhart (00:01):
Happy holidays. Welcome to, I know a lawyer, the podcast, where I get to talk to fellow lawyers about a part of the law that they practice. As you know, I know a lawyer is brought to you by McKenna Brink Signorotti, LLP, a boutique law firm located in Walnut Creek, California. Check out our services and our team at mckennabrink.com. That's mckennabrink.com. If you enjoy the podcast, make sure you hit subscribe on your podcasting app. So you don't miss out on any new episodes as they release. You may also find that all episodes at our website, so you can listen to there just as easily, also special announcement today. Stay tuned to the end of the show regarding the future of, I know a lawyer, spoiler alert, the show is going to expand. So say stay tuned for that announcement. At the end today, I'm joined by Mika Domingo and estate planning and estate litigator, who is here to talk about litigation. She is the managing partner of Ms. Domingo law group PC also located in Walnut Creek. Thank you for joining me today, Mika, how are you?
Mika Domingo (01:02):
I'm doing great. Thank you Ryan. For having me. I'm happy to be here.
Ryan Lockhart (01:07):
Oh my pleasure. Thanks for joining me. You're going to be the, the last episode of the, of the year. Really? So congratulations on that. Thank you. So why don't you tell the audience a little bit about yourself and your practice?
Mika Domingo (01:20):
I'm Mika Domingo, founder of MS Domingo law group. We are a trust and estate civil litigation firm. And as Ryan mentioned, we are located in Walnut Creek, California, but we assist clients all over California.
Ryan Lockhart (01:36):
Good. And so just the audience knows you'll be able to check out a link to Mika's website in the show notes. So if you like what she has to say today, click on that link and check out her site, check out what her and her team are all about. All right, Mika, we're going to talk about litigation. And so let's just assume that I just got sued and I have no idea what to do. Do you have any tips for us and where should I even start?
Mika Domingo (02:01):
Absolutely. My tip number one is for you to stay calm and read the summons and complaint or the petition carefully to not ignore the lawsuit. So the purpose of the complaint or petition is to provide the defendant or respondent with notice of the factual and legal basis of a claims. Keep in mind that the facts are based on the plaintiff's or petitioner's own knowledge, or if it is based on someone else's knowledge, it'll say something like upon information and belief. The summons is an order from the court where the case will be heard. This document provides notice to the defendant that they have been sued and provides the time limit within which you must file an answer or have the case dismissed. But someone's also provides information on what happens if you fail to respond timely. Like I said, do not ignore the lawsuit because doing so can have serious consequences, failing to file a formal written answer to the allegations can result in what's called a default judgment against you.
Mika Domingo (03:23):
So what does that mean? A default judgment is a judgment of the court saying you lost your case because you didn't enter an appearance or you didn't appear at court on the day you were supposed to be there. If you fail to respond to a complaint in the time set by law in generally it's 30 days after the date you were served and the 30 days include weekend days and court holidays, then the plaintiff can request that the default or failure be entered into the court record by the clerk, which gives the plaintiff the right to get that default judgment. So if the complaint asks for, let's say a specific amount of money owed for a breach of contract, for example, or other money due, then the clerk of the court can enter a default judgment. A defendant who fails to file an answer timely can also request that the default be set aside upon a showing of legitimate excuse or good costs.
Mika Domingo (04:27):
Want to ask yourself what kind of lawsuit it is. So read the complaint carefully. It'll give you the jurisdiction. That is what court has the power to hear the case venue, where the lawsuit is filed claims or account. So for example, is it a breach of contract case negligence petition to remove a trustee petition, to invalidate a trust? You want to be very clear on the causes of action.
Speaker 3 (04:57):
Okay. So can you explain a little bit more about what does cause of action mean?
Mika Domingo (05:02):
That's a good question, Ryan. So a cause of action is a set of facts sufficient to justify a right to Sue, to obtain money property or the enforcement of a right against another party. The cause of action is the heart of the complaint without an adequately stated cause of action. The plaintiff's case can be dismissed at the outset. So all the elements of each cause of action must be detailed in the complaint. The claims must be supported by the facts, the law, and a conclusion. And I want to also point out that the facts or circumstances that entitle a person to seek traditional relief may create more than one cause of action. A cause of action can arise from an act, a failure to perform a legal obligation, a breach of duty or a violation of right. So for example, there was this case I worked on which an employment attorney colleague was handling because the complaint alleged wrongful termination and failure to produce employment records, but it also had an elder abuse cause of action. Obviously I only handled the elder abuse cause of action. And the employment attorney handled the rests, the causes of action arose from the alleged act or failure to perform.
Mika Domingo (06:40):
So I want to go over tip number two.
Ryan Lockhart (06:45):
Yeah. Okay, good. Cause I get it. I'm going to stay calm, but all right. So if I'm calm and I read it, what do I do next?
Mika Domingo (06:52):
It has. And you understand what the causes of action, right? Well, you will need to do number two. So my tip number two is collect information calendar to time plays of the hearing calendar calendar, the deadline to file a response. And you also want to make sure you calendar the case management deadline, a case management hearing is set by the court shortly after the complaint is filed. So the purpose of this case management is for the parties and the judge to discuss the issues and scheduling matters of the case. So it's often scheduled for several months after the filing of the complaint and the parties have a duty to meet and confer no later than 30 days before that date is set for the initial case management conference, there is also a case management statement form that's due before the dates set for the case management conference. So you'll want to calendar that as well. And it's usually 15 days before the case management conference, you want to gather documents that are relevant to the case. So this includes a chronology emails, accounting records, files, memos notes, anything that could be remotely relevant to the matter in this Pew.
Ryan Lockhart (08:12):
Hmm. You mean all of those documents? Cause that seems like a pretty big job.
Mika Domingo (08:16):
Yes. You'll want to gather as much information as you have available to you. Even before you hire an attorney. Why let's take, for example, the chronology, this is something you want to provide your attorney and it is confidential. This as well as your discussion with your attorney is privileged from disclosure. But only if you don't show it to a third party, if you do it is considered a waiver. So you want to make sure you got all information written in verbal exchange with your attorney, very carefully, a chronology gives you a chance to organize your thoughts on what happened and keep in mind also that as you progress with a case, you'll have an opportunity to obtain information with the help of your attorney.
Ryan Lockhart (09:04):
Hmm. Great. All right. So I got all this information I guess is it now the right time to go find that attorney
Mika Domingo (09:10):
That's right. Tip number three, choose the right attorney for you. Once you get clear on your causes of action, you can proceed with hiring the right attorney for the case. How do you do that? Research and interview attorneys before committing? There are many ways to find a reliable lawyer. Yes, the lawyer, his expertise prior experience and integrity are important. Other considerations may include the lawyers, location and fees. Although now with COVID when most things being on zoom location might not be the most important factor, but you also want to work with someone. You have rapport with ask for a recommendation from a trusted friend relative or business associate, take your time asking questions, be aware. However that each case is different. So a lawyer who is a right fit for someone may not be the right fit for you. I always encourage potential clients to read attorney reviews available from varying sources. And you can also ask your local bar associations, lawyer referral services for a list of recommended lawyers. So once you've chosen, your attorney you'll want to provide your attorney would relevant information as we discussed. So for example, if you have insurance coverage, make sure you provide your attorney with your coverage.
Ryan Lockhart (10:37):
Okay, great. So once I think I found the right attorney how's that going to work with the attorney in the beginning?
Mika Domingo (10:44):
So once you have the right attorney and you know that you have the complaint or petition, you know, you'll have a number of options to discuss with your attorney. You want to be reasonable first. You want to offer settlement discussion negotiations early. I'm pretty sure your, your attorneys is going to go over these options, right? If that's a viable option, that'd the early negotiations. So if the other party is unwilling, you can revisit that later. At any time during the lawsuit, you can reach out to the plaintiff or petitioner and try to resolve the dispute. No that you'll need to work with your attorney on answering the lawsuit. If you have not been successful in trying to resolve the matter out of court, you can, as an option, file an answer. This is probably the most common way of responding to the complaint.
Mika Domingo (11:44):
And answer allows you to respond to the complaints, factual allegations and legal claims. And if you file an answer timely, it prevents a plaintiff getting a default judgment against you. What we talked about earlier. So what's in an answer, you can file an answer by responding to every line item in the complaint you can indicate for each allegation, whether or not it's true. And you can also indicate if it is true or false and provide additional information or reasons as to why another option is to file a general denial. And usually in civil cases, you can use a form PLD 50, and it's, it's a general form. It's a general denial us to what the plaintiff is claiming. And for example, if you have a complaint and the property is involved, that is involved is a thousand or less. You'll actually need to use this form, but more often than not, the amount in controversy is going to be a lot more.
Mika Domingo (12:48):
And whether or not you file an answer or a general denial you'll include affirmative defenses. And affirmative defense is a set of facts or a fact other than those alleged by the plaintiff or the petitioner, which if proven mitigates or defeats the legal consequences of the defendants, otherwise unlawful conduct. So there are some common ones. People have heard statute of limitations. So for example, the defendant can assert that the recovery is barred because the plaintiff has waited. Let's say more than four years from the date of the breach or last action in the defendant before filing a lawsuit, there's also latches for example, then the defendant may have waited or the defendant waited and a reasonably long time to file the lawsuit. And the defendant's ability to defend the lawsuit has been severely prejudiced due to this delay. And it has denied the defendant access to documents, evidence, witnesses, or maybe a failure to mitigate damages.
Mika Domingo (14:02):
So there are the defenses that your attorney will, will go over with you. And then you'll also have the option of filing a dimmer. And dimmer is a type of answer, an assertion by the defendant that although the facts alleged by the plaintiff may be true. They don't entitle the plaintiff to prevail. So let's say you're a trustee and you're being sued for a breach of trust. Well, this requires factual allegations that you violated one or some of the fiduciary duties in the probate code. Keep in mind that before you can file a dimmer, you are required to meet and confer with the other party to the term in whether or not you can resolve the objections. If you file a dimmer, you must stay at all grounds separately and serve a memo, a memorandum outlining each ground, seated in a dimmer. Again, your, your attorney we'll we'll work with you on this and make sure that you're following the CCP and California rules of court.
Ryan Lockhart (15:07):
Hmm. Great. Well, it sounds like there's a lot of different options that are out there. So your next tip is one that I think is very important. I wish more people would talk about. So I'm glad you're going to talk about it now. And that is well, I'll just let you introduce yourself.
Mika Domingo (15:21):
Sure. Tip number five is assess your finances. You want to ask yourself if it makes sense to fight or should you pay what is owed? For example, you want to ask yourself, are you fighting on principle alone? We want to do a cost benefit analysis. So for example, you have a breach of contract case. And the amount in question is 20,000, you're being sued for failure to complete services. Let's say kitchen remodeling. Well, did you breach or not? Maybe you did not complete the remodeling and it would be cost prohibitive to defend this lawsuit. And you're better off calling the plaintiff and negotiating. What are your defenses maybe completing the kitchen is a better route or you're a trustee. And the petition is for removal. And for an account you're being asked to provide an accounting and maybe you really don't want to serve as trustee. And the trust includes a provision for the successor trustee and the successor trustee might be a better fit. Well, why don't you see if you can provide the accounting and in advance of the hearing and see if you can resign, you'll do so in an affidavit form, this might allow you to settle out of court. So you could go into the hearing and let the judge know for example, that you have resolved the issue.
Ryan Lockhart (16:47):
Yeah, but I know you're in a fellow estate litigator. I don't do estate litigation really that much at all, but I have seen a lot of those cases where they are fighting over old wounds, print the principle of it. They're just willing to spend their inheritance to, I guess, win. And I just don't know. Sometimes I don't understand why they haven't made that cost benefit analysis.
Mika Domingo (17:10):
Right. It's very important to do that. And things can be very difficult and emotional, but you know, you have your attorney to guide you through the process and could save you a lot of money potentially. Yeah,
Ryan Lockhart (17:25):
I think so. I agree. I do hope that more clients out there when they, cause if you get sued, it's emotional. Like if I'm playing the role, I got sued and I'm like, well, everything this guy say is wrong. You know, I gotta fight this to win, to clear my name or something like that, but there are other options. So I'm glad you brought them up today. All right. So let's say we're moving forward a little bit. So in this case what's next, what's your next tip? Tip number six is
Mika Domingo (17:50):
Don't assume your attorney's fees will be paid by the opponent. So the general rule in California is that unless attorney's fees are provided for, by the statute or contract, they are usually not recoverable, so win or lose, you might have to pay for your own attorney's fees.
Ryan Lockhart (18:11):
Hmm. What about all those attorneys that advertise that say we don't get paid unless we win.
Mika Domingo (18:17):
Yeah. So the terms for those types of yeah, so, so the terms should be clearly indicated on the attorney client, a fee agreement there's the standard contingency fee agreement. That's common that say for personal injury cases, although I know a few litigators, civil litigators who sometimes accept cases on a contingency basis. And as we see, as you mentioned the advertisements, right? So the standard fee for an attorney for PI cases is a percentage amount rather than the fixed amount. And usually for PI attorneys, it's 33 and one-third percent, if the case settles without filing a lawsuit and 40% of a lawsuit is filed. So these contingency fee agreements are, are available, you know, for some right. And they can be negotiable, but the terms have to be discussed and memorialized in writing of course, before work begins.
Ryan Lockhart (19:15):
Okay. So if I'm being sued on a breach of contract, like what the contractor, like, like your example about that before that could be a contingency case, but probably most likely not. Correct? Correct. Okay. Good. All right. That's good. Yeah, definitely. It says, make sure you understand the attorney's fees and how it's going to work between you and your attorney. That's a huge headache that everybody can avoid down the road as if everything's clear. All right. So what's your next tip Mika.
Mika Domingo (19:41):
My next tip is listen and trust your attorney as a client, you must find an attorney that you trust and somebody you have rapport with because as we both talked about, the litigation can get very difficult and stressful. So you must feel comfortable telling your attorney the truth so that your attorney can do their job. You want to trust yourself enough and your attorney to allow your attorney to do the best job for you. Of course, you're allowed to have an opinion and make suggestions, but you must listen to and ask questions and trust that your attorney is a professional well-trained and experience. Listen to the advice and allow the attorney to take the lead while you keep the communication open.
Ryan Lockhart (20:30):
So what can a client do if they're not happy with her attorney,
Mika Domingo (20:33):
If a client is not happy with your attorney, you can look at the guidelines from the state bar. The state bar provides guidance on what a client can do. And the first step would be to express the concerns, right? You want to communicate with your attorney and see if it is a misunderstanding that can be cleared up by a phone call. And if let's say your lawyer, doesn't return your call. You want to send them a letter, addressing your concerns, and you want to keep a copy of the letter you can suggest to meet and discuss. So the next step would depend on the nature of the problem. If you don't agree, for example, with your lawyer's advice, you must communicate that clearly and ask for further explanation. And if you're still not satisfied with your lawyer's answers, you must seek a second opinion. You can also explore hiring another attorney, but you should also make sure that doing so doesn't cause unreasonable delay for attorneys where there's been a breakdown in the attorney, client relationship. Any attorney has worked, let's say diligently on a matter, and as endeavored to work with a client on addressing numerous issues. And the client is still unhappy and uncooperative, the attorney actually has an ethical duty to withdraw. And for you as clients, you should know that you do have an option.
Ryan Lockhart (22:02):
Great. All right. So want me to lead into the, the last tip number eight and it talks about how long this can be, right? So I'll let you go with that. Yeah.
Mika Domingo (22:14):
Right, right. And so how long can it be? You want tip number eight is to prepare to be in it longer than you initially anticipated. It really depends. It's no surprise that lawsuits take time. And if you expect a case to be over in just several weeks, you're going to be disappointed. Much of that delay of most cases is out of either party's hands. So if you're looking at a complaint that has just been filed, there could be delays in serving the other party properly, which affects the time to answer. If the other side falls motion, this can delay the timing for hearing. And sometimes the parties can meet and confer and grant extensions, for example, which can cause additional delay after the pleading stage, there is the discovery stage, which can take a long time due to extensions and time to submit responses. Of course, if settlement is a viable option, this can certainly shorten the time the process takes time. And the courts may have limited resources that cause additional delays in scheduling hearings. However, if a case is taking longer than anticipated, you want to use that as an opportunity to see if you can resolve the matter. I always advise my clients to not only do a cost benefit analysis, but also understand how litigation can disrupt their lives and how it might be, who them to resolve the matter early on.
Ryan Lockhart (23:48):
Well, that's great. And especially my understanding is pretty much everything is delayed now. Even further with COVID pretty much every court, right? That's correct. And he's just taking even longer. So that was great Mika. So if you're out there and you get sued and you don't know what to do well, Mika just gave you eight great tips to think about and the process that you can start to go down because you're not the only one who's been served with a lawsuit and figured, Oh no. What do I do now? So thank you very much Mika for joining me today. Any final thoughts?
Mika Domingo (24:18):
Thank you again, Ryan, for having me. And if you do get sued and you need help, give me a call. Give us a call MS Domingo law group at 925-891-5006.
Ryan Lockhart (24:35):
And again, you can find the link to Mika on her website. You can contact her that way as well. That was Mika Domingo of MS Domingo law group PC she's in Walnut Creek. I am Ryan Lockhart, and this is, I know a lawyer podcast. Thank you for listening. And that special announcement. I just mentioned at the beginning, you're about to hear it right now. Thank you.