What is the Structured Settlement Protection Law in California?
What Is a “Structured Settlement”?
When a plaintiff settles a legal case for a large sum of money, a financial planner may be consulted. It may be advised that the legal settlement be paid in installments over time rather that in one large lump sum. When legal settlements are paid in this manner it is considered to be a “structured settlement”. Often these installment payment plans are made with the purchase of one or more annuities. Annuities are sold by insurance companies and they are guarantees for future payments. The idea of buying into the annuity was meant to benefit vulnerable victims, such as children, the elderly and people with disabilities. It was meant to help meet future medical expenses and basic living needs of victims unable to care for themselves.
An annuity can be flexible and the parties involved can usually choose how often they want the money distributed. It can be in annual payouts over several years or periodic lump sums every few years.
In the early 1990s, financial companies began to purchase structured settlements rights from payees to collect future payments. These companies, known as “factoring companies” used powerful advertising to persuade payees to trade their future payments for present cash. Many of these schemes were exploiting unsuspecting victims and created a great deal of legal controversy. Before long, state legislatures saw a need for regulation. In one lawsuit it was found that “factoring companies often charged sharp discounts to payees who were ill equipped to appreciate the value of their future payments and in some cases, factoring companies charged discounts equivalent to annual interest rates as high as 70 percent.” (Wentworth S.S.C vs Jones, Jefferson City, KY 1998)
California Structured Settlement Protection Law
The California Insurance Code § 10139.5 is a statute that describes the process of court approval during the transfer of structured settlements. The California Insurance Code- Section 10139.5(a) states:
(a) A direct or indirect transfer of structured settlement payment rights is not effective and a structured settlement obligor or annuity issuer is not required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order based on express written findings by the court that:
(1) The transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents.
(2) The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received that advice or knowingly waived that advice in writing.
(3) The transferee has provided the payee with a disclosure form that complies with Section 10136 and the transfer agreement complies with Sections 10136 and 10138.
(4) The transfer does not contravene any applicable statute or the order of any court or other government authority.
(5) The payee reasonably understands the terms of the transfer agreement, including the terms set forth in the disclosure statement required by Section 10136.
(6) The payee reasonably understands and does not wish to exercise the payee’s right to cancel the transfer agreement.
In summary, you cannot sell your structured settlement without court approval. You need professional advice as to whether the transfer is fair. The company buying your structured settlement will pay the attorney fees for this unbiased independent professional advice. You will agree that you fully understand the agreement and you will not cancel the transfer.
If you have any questions or concerns about a structured settlement payout, please contact our office today at 877-603-8473. Mr. Peter S. Cameron is an experienced San Diego Civil Litigation Attorney and will help you understand your legal rights and options.
How do I Request a Continuance in San Diego Superior Court?
The legal definition of a continuance is the postponement of a date of a trial, hearing or other court appearance.
In the Superior Court of California, San Diego County, a continuance may be requested when a party needs additional time to appear on a matter or comply with a court order. The prosecution, the defense or the judge may continue a hearing. A defendant may request a continuance in order to comply with certain terms of probation ordered by the court, such as completion of a class or payment of a fine.
How to request to continue a case prior to arraignment
A request may be made at the court clerk’s office, by mail or over the phone. Clerks have the authority to process a one-time thirty-day continuance on minor offense cases only. A continuance will not be processed by the clerk if a warrant or license hold has been issued or a civil assessment imposed.
How to continue or reassign certain probation conditions, i.e. public service work, volunteer work, classes
Clerks also have the authority to issue a one-time thirty-day continuance, reassignment or extension at the public counter or by mail. If the case involves a class which cannot be scheduled and completed within 30 days, a longer time frame may be given.
All second and subsequent requests or any requests for more than 30 days must be referred to the judicial officer for decision.
Can I request time to pay a deferred fine, restitution fine or conversions to fine?
For a first request for more time to pay a deferred fine at the counter, you must complete the identification portion of a financial declaration. The clerk will then defer the balance of the fine for 30 days. You must make a $30 payment unless that is more than the balance of the fine.
Are there Continuances on adjudicated (settled) cases?
All requests for continuances on adjudicated cases shall be referred to court.
In Summary: How Continuances are administered in the San Diego Superior Court:
- Prior Arraignment: Felony and Misdemeanors must be made by court appearance. Only Infractions can be done by the business office clerk.
- First time continuance or reassignment to specified probation conditions (Not in lieu of fine or custody) can be done in the office or in court.
- Second and subsequent requests or request for more than 30 days must always be requested in court.
If you have any questions or concerns about requesting a continuance call the Law Office of Peter S. Cameron at 877-603-8473 for more information. Initial consultations are always free and we are here to assist you with any legal matter.
This information is for educational purposes only and does not create an attorney-client relationship.
How to Prepare for Arbitration and What to Expect
What is the Legal Definition of Arbitration?
Arbitration is the submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award—a decision to be issued after a hearing at which both parties have an opportunity to be heard.
Arbitration takes place out of court. It is a well-established and widely used Alternative Dispute Resolution to end disagreements, along with mediation and settlement conferences. The disputing parties select an impartial third party, known as an arbitrator. Both sides agree in advance to comply with the arbitrator’s award and then participate in a hearing at which both sides can present evidence and testimony.
Arbitration may be either “binding” or “nonbinding.” Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator’s decision as final. Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator’s decision.
How do I Prepare for Arbitration?
Even though arbitration is less formal than a court trial, you and your civil litigation lawyer should be fully prepared to argue your position and to present documentary evidence and witnesses at the arbitration hearing.
Before the arbitration hearing you need to:
- Research all documentation related to the dispute.
- Organize your arguments.
- Identify and organize documentary evidence and testimony that supports the arguments.
- Re-examine your case for weaknesses, asking yourself these questions:
a. Did I do or not do something that might have contributed to the dispute?
b. What percent of the problem might an arbitrator possibly consider to be my fault? Ask your attorney to help you think through the issues one more time before the meeting.
c. Remove irrelevant issues and documents. Clean up the case and reduce it to the clear, clean and strong points.
- Arrive at the hearing ahead of time; well rested and nourished.
- Make sure you have complied with the California Rules of Court (CRC) 3.820 prohibiting ex parte communication with the arbitrator. (no private communication with the arbitrator)
What to Expect at the Arbitration Session
- The arbitrator will explain the process. You will be reminded that persuasive and forceful presentation is permitted but civility and mutual respect are vital.
- Each side may present an uninterrupted opening statement setting forth its position as to the facts and the law.
- After opening statements, the parties present their evidence and witnesses.
- The arbitrator swears in the witnesses and makes rulings on the admissibility of evidence.
- After all evidence is presented and all witnesses have been heard, the parties make closing arguments.
- After the session, the arbitrator must submit an award in writing and file it with the Civil Clerk’s Office, with copies to all parties.
Cases for Which Arbitration May Not Be Appropriate
If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate.
If you have received a Notice of Arbitration or have any question or concerns about attending an arbitration, call the Law Office of Peter Cameron today at 877-603-8473. We can help you understand the process and prepare for a favorable outcome of your case.
How to Prepare for a Mediation and What to Expect
What is the Legal Definition of Mediation?
Mediation is a settlement of a dispute or controversy by setting up an independent person between two contending parties in order to aid them in the settlement of their disagreement. The independent person who intervenes in order to help the two parties settle their dispute is called a mediator. The mediator works to find points of agreement and helps those in conflict agree on a fair result.
Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation), and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases.
Is Mediation Confidential?
Except as otherwise provided by the California Evidence Code or California law, all communications, negotiations, or settlement discussions in the course of a mediation or mediation consultation are confidential and are not admissible or subject to discovery (the gathering of information or testimony before a case goes to trial).
Should I Choose Open or Closed Mediation?
A closed mediation is confidential and no communications made during mediation may be disclosed by parties or the mediator. In an open mediation some level of reporting or disclosure is allowed. California state law protects mediation communications from disclosure and the State Supreme Court has interpreted that law quite stringently in the past few years.
How do I Prepare for Mediation?
You and your attorney should be prepared to discuss all relevant issues in your case. Before the mediation session, you and your attorney should discuss the mediation process and understand it is confidential and non-binding. The non-binding aspect of the mediation means that the mediator can only suggest a settlement, not impose one.
Be prepared to state your position and to listen carefully to the other side. Persuasive and forceful communication may occur, but civility and mutual respect is always more constructive. Hostile or argumentative tactics are likely to cause positions to become fixed and thus prevent progress. Some mediators also require pre-mediation briefs.
How Does The Mediation Process Work?
1. A formal mediation will start with the mediator’s introductory remarks. The mediator will remind the parties that they should not interrupt each other. There will be a review of the mediation guidelines and the mediator will briefly recap the issues.
2. After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. This gives the parties the opportunity to frame the issues in their own mind, and to give the mediator more information on the emotional state of each party. Your lawyer may make the opening statement for you.
3. The mediator will ask the parties open-ended questions to gather more information.
4. When the problems have been identified, the mediator tries to find common goals between the parties. The mediator will figure out which issues are going to be able to settle or those that will settle first.
5. Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This will include bargaining and generating options for agreement.
6. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions. Some mediators use the caucus method, where meeting are held separately with each side. A caucus can be called by the mediator or by one of the parties for further exploration of reaching an agreement.
What are the Benefits of Mediation?
Although mediation may not always result in a settlement, the benefits are numerous. Mediation has proven to be:
- a more economical solution than going to court
- a more timely way of resolving disputes
- a more satisfying resolution to both parties
- a more comprehensive and customized agreement
- a greater degree of control and predictability of outcome
- a personal empowerment to both parties
- a decision that holds up over time
If you are interested in mediation as an alternative to going to court or have been issued a court-ordered mediation, please call our office at 877-603-8473 for more information. We are here to help you understand the process and support you in your goal of a favorable case outcome.
How to Prepare for a Deposition and What to Expect
What is the Legal Definition of Deposition?
A Deposition is an out of court sworn testimony of a witness that is reduced in writing for later use in court or for discovery purposes. It is also referred to as examination before trial and is a pretrial procedure.
A Notice of Deposition
A deposition takes place any time a person acts under oath to answer questions presented by an attorney. It usually occurs outside the courtroom and can take place in a lawyer’s office or in the office of a court reporter. The deposition allows the opposing lawyer to collect testimony that assists in the preparation of a case. The testimony taken during a deposition can be used at a trial. Once a party has answered a particular question during a deposition, the party is bound by the answer.
Depositions are part of the discovery process, which is the process by which the parties in civil cases gather facts about the case from each other and sometimes from other parties.
If you have been served with a lawsuit and given notice of deposition, you need to be prepared and ready for the questioning. Being prepared can make the deposition less stressful and time-consuming. It is most important to always remember that it is no different from you testifying in court.
There are proven and reliable recommendations for preparing for a deposition. Careful review of these guidelines before the meeting could make a difference in the outcome of the case.
- Slow down, pause and understand each question.
- Ask the attorney to either repeat or rephrase any question you are unsure about.
- Listen carefully to the question and try to answer it with a yes or a no. Avoid narrations and long stories.
- Never think that you must have 100% total recall. If you do not remember, say “I’m sorry, but I do not remember that.”
- Answer the question only if you have firsthand knowledge of the incident in question. Never guess or speculate about the answer.
- Do not state facts that support your defense. That is the attorney’s job. Your answer can be a simple “I don’t know”.
- Ask to speak with your attorney if you need help.
- You can ask to take a break. Do this as often as necessary. Mental fatigue can cause careless answers.
- Take your time. Don’t let the opposing attorney think you are in a hurry to leave.
If you can follow these guidelines, your deposition can be a less troublesome experience. If you can show the opposing party that you are confident about your legal position, and you are not afraid to go to court, the process will be more professional and the outcome more favorable.
Please call our office at 877-603-8473 with any legal concerns or questions about a deposition.
What is a Minor’s Compromise (Agreement) in Civil Court?
A Minor’s Compromise is when an adult signs on behalf of a child so the child can receive money. The law doesn’t allow the child to sign until s/he becomes an adult. It is an approval by the court that a claim settled on behalf of a minor is fair and that the monies provided on behalf of the minor are deposited in an appropriate account. This may include establishing a blocked account on behalf of the minor.
What are the Different Types of Minor’s Compromise?
NO ACTION PENDING
- Petitioner must be the parent, guardian or guardian ad litem (Appointed to act in a lawsuit on behalf of a child or other person incapable of representing themselves. “Ad litem” means “for the lawsuit”)
- Filing Fees are listed on county court websites
- Siblings shall be permitted to file under the same case number, however, there shall be a separate petition and order for each minor
ACTION PENDING
- Petitioner must be the guardian ad litem
- Filing is done at the Probate Clerk’s Office
- A copy of the first page of the following must be attached to the petition: The Complaint, Amended Complaint, Cross Complaint and any Dismissals (from the civil case)
- A copy of the entire document of the following must be attached to the petition: Order Appointing Guardian Ad Litem and any awards of an arbitrator with no new trial requested (from the civil case)
- Upon filing the documents, you will be given a hearing date.
What happens after the hearing?
When the matter is approved, the order will be signed by the Court and you will receive a confirmed copy, if a copy is provided.
For blocked accounts, the original order for deposit will be signed and filed. The copies will be returned to counsel. A receipt and an acknowledgment of the Order will be delivered to the banking institution to establish the blocked account. It should be completed by the institution and returned to the Probate Clerk’s Office.
If the settlement includes a structured settlement/annuity, the defendant must purchase the annuity. A declaration under penalty of perjury must be filed stating the original annuity has been reviewed with a copy of the annuity. Should the original be unavailable, the declaration should so state and the annuity company must then provide a declaration under penalty of perjury stating the copy is a true and correct copy of the original annuity.
Can funds be withdrawn from Blocked Accounts?
The funds in the blocked accounts are the minor’s funds and cannot be withdrawn without a court order. Should a need for funds arise, the party must submit a Petition for Withdrawal of Funds from Blocked Account, and other appropriate documentation. The Court will consider the request for funds and may approve or deny the request, or set the matter for hearing.
If you have any questions or concerns about a Minor’s Agreement or any other Civil Matter, please call our office at 877-603-8473. If you prefer, fill out the secure on-line form and we will promptly reply to your inquiry.