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Pursuing A Civil Personal Injury Action Against A Perpetrator Of Domestic Violence In California
- By Terry Daniels
- Published 09/8/2011
- National, State, Local
- Unrated
The difference between a civil personal injury action and a criminal case against someone like Marilyn's husband is that in a criminal case he can be convicted of a crime. In a civil case the court can award Marilyn money for her injuries.
Civil law in California defines victims of domestic violence so that it includes a broad group of people. California Civil Code 1708.6 defines domestic violence as "... abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship..."
Section 1708.6 also provides the following guidelines to determine whether persons are cohabitants: "Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.
Additionally, California Family Code 6211 similarly provides that the following persons are entitled to compensation if they are victims of this kind of violence:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant ...
(c) A person with whom the respondent is having or has had a dating or engagement relationship.
(d) A person with whom the respondent has had a child ...
(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
(f) Any other person related by consanguinity or affinity within the second degree.
A person who has suffered violence at the hands of another and who fits within the parameters of either of the two definitions of domestic violence, the definition in California Civil Code 1708.6, or the definition in California Family Code 6211, may seek monetary damages as provided in Civil Code 1708.6.
Under Civil Code 1708.6, these victims are entitled to recover three categories of damages:
First, they are entitled to recover damages which are called "special damages.
" These damages include all types of out-of-pocket costs. Examples are medical bills, loss of income due to injury, and moving costs if they must relocate to avoid further violence.
Second, these victims may recover what are called "general" or "pain and suffering" damages. These damages are an amount of money that a jury or court determines would fairly compensate the victim for the physical and emotional consequences suffered as a result of the domestic violence.
Third, domestic violence victims are entitled to recover "punitive damages. "These damages are awarded in the form of money by a jury or the court strictly to punish the perpetrator who committed the domestic violence.
Furthermore, victims are also entitled to recover from the perpetrator the cost of their attorney's fees. An award of attorney's fees award can be significant because the case may need to be fully litigated to a verdict or judgment.
And, a domestic violence perpetrator may not be willing to agree to compensate their victim. Because attorney's fees can amount to much of the actual amount awarded, an award of attorney's fees may significantly increase the amount the victim actually gets to keep.
In California the statute of limitations for a domestic violence action is longer than two-year statute of limitations for other personal injury actions.
California Civil Procedure Code 340.15 provides that a domestic violence civil action may be brought either within three years of the date of the last act of violence; or within three years of the date the victim discovers or reasonably should have discovered that an injury or illness from which they suffer was the result of this violence.
A child, for instance, or an adult who can establish lack of knowledge, or a diminished capacity as a result of these incidents, may be able to pursue a civil action many years after being injured.
Furthermore, if the victim's lawsuit is filed within either one of the two above described statutory limitations periods, damages are recoverable for all previous acts of domestic violence. In the California Appeals Court case of Pugliese v. Superior Court (2007, Cal App 2d Dist) 146 Cal App 4th 1444 the court ruled that, in a timely filed action for domestic violence, all acts of violence over the last 15 years which caused personal injury to Pugliese's former spouse were admissible.
If you or someone you know may have suffered, or may still be suffering, as a result of domestic violence, you should contact an attorney.
Civil law in California defines victims of domestic violence so that it includes a broad group of people. California Civil Code 1708.6 defines domestic violence as "... abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship..."
Section 1708.6 also provides the following guidelines to determine whether persons are cohabitants: "Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.
Additionally, California Family Code 6211 similarly provides that the following persons are entitled to compensation if they are victims of this kind of violence:
(a) A spouse or former spouse.
(b) A cohabitant or former cohabitant ...
(c) A person with whom the respondent is having or has had a dating or engagement relationship.
(d) A person with whom the respondent has had a child ...
(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
(f) Any other person related by consanguinity or affinity within the second degree.
A person who has suffered violence at the hands of another and who fits within the parameters of either of the two definitions of domestic violence, the definition in California Civil Code 1708.6, or the definition in California Family Code 6211, may seek monetary damages as provided in Civil Code 1708.6.
Under Civil Code 1708.6, these victims are entitled to recover three categories of damages:
First, they are entitled to recover damages which are called "special damages.
Second, these victims may recover what are called "general" or "pain and suffering" damages. These damages are an amount of money that a jury or court determines would fairly compensate the victim for the physical and emotional consequences suffered as a result of the domestic violence.
Third, domestic violence victims are entitled to recover "punitive damages. "These damages are awarded in the form of money by a jury or the court strictly to punish the perpetrator who committed the domestic violence.
Furthermore, victims are also entitled to recover from the perpetrator the cost of their attorney's fees. An award of attorney's fees award can be significant because the case may need to be fully litigated to a verdict or judgment.
And, a domestic violence perpetrator may not be willing to agree to compensate their victim. Because attorney's fees can amount to much of the actual amount awarded, an award of attorney's fees may significantly increase the amount the victim actually gets to keep.
In California the statute of limitations for a domestic violence action is longer than two-year statute of limitations for other personal injury actions.
California Civil Procedure Code 340.15 provides that a domestic violence civil action may be brought either within three years of the date of the last act of violence; or within three years of the date the victim discovers or reasonably should have discovered that an injury or illness from which they suffer was the result of this violence.
A child, for instance, or an adult who can establish lack of knowledge, or a diminished capacity as a result of these incidents, may be able to pursue a civil action many years after being injured.
Furthermore, if the victim's lawsuit is filed within either one of the two above described statutory limitations periods, damages are recoverable for all previous acts of domestic violence. In the California Appeals Court case of Pugliese v. Superior Court (2007, Cal App 2d Dist) 146 Cal App 4th 1444 the court ruled that, in a timely filed action for domestic violence, all acts of violence over the last 15 years which caused personal injury to Pugliese's former spouse were admissible.
If you or someone you know may have suffered, or may still be suffering, as a result of domestic violence, you should contact an attorney.
Terry Daniels
Terry Daniels has been working with personal injury law in Utah for the past 10 years. He has written hundreds of articles dealing with the subject. He recommends this Personal Injury Attorney Redwood City. Contact Info: Terry Daniels TerryDaniels09@gmail.com http://www.normannewhouse.com
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