by Andy Chen | Feb 24, 2017 | California, contracts, New York
In a prior blog post, I went over statutes of limitation and specifically discussed the New York and California statutes of limitation for defamation. To continue with that idea — and totally not because I have run out of ideas to blog about — I’m going to go over the statute of limitations for breach of contract. In my experience — which is by no means exhaustive — breaches of contract are very common. Many people have an intuitive sense of when a contract is broken (i.e. someone is supposed to do something and they aren’t) so it is logical to wonder what statute of limitations applies. Knowing what statute of limitation applies is only a small part, though. Actually proving the existence of a clear and enforceable contract can be quite involved. Always consult an attorney regarding your personal and — most likely — unique situation. All of that said, let me talk about California first. California applies different statutes of limitation on contract breaches depending on whether the contract in question is oral or written. For an oral contract, the applicable period is 2 years under California Code of Civil Procedure section 339. For a written contract, the applicable period is 4 years under California Code of Civil Procedure section 337. New York does not distinguish between breaches of oral and written contracts like California does. In New York, contract breaches are subject to a 6 year statute of limitations under New York Civil Practice Law and Rules (NY CPLR) section 213(2), but exceptions do exist. Some situations (see NY CPLR section 213(a)) have a 4 year...
by Andy Chen | Feb 21, 2017 | California, Statutes... and stuff
California is a community property state when it comes to divorces. Community property is a complicated subject, but many people summarize it as the rule that says “during a divorce, each spouse gets half of the stuff.” Given this 50/50 division, a common situation in California divorces is that one spouse (say, Spouse A) feels that he or she is entitled to more than just half of the marital property, sometimes a great deal more than the half that community property dictates. One way in which Spouse A might try to get what he or she feels to be their rightful share is to put the marital property under Spouse A’s name alone. This might be an account (e.g. bank account) that is only in Spouse A’s name or it might be putting just Spouse A’s name on the title to the car or the house. The logical question to wonder then is: Can Spouse A get around community property law by simply putting property under their name alone? The short answer is no. There are many Spouse As that try this tactic and it never works. The longer answer is that this question presents two competing interests. On the one hand is community property which, as I indicated earlier, basically says that all the property acquired during the marriage is split equally upon divorce. See California Family Code section 760. On the other hand is California Evidence Code section 662, which states that the “owner of the legal title to property is presumed to be the other of the full beneficial title.” In other words, whoever is listed as...
by Andy Chen | Feb 18, 2017 | California, New York, Statutes... and stuff
Many people are familiar with the term “Statute of Limitations” from having seen someone mention it on television or in a movie. However, seeing it on television or in the movies usually just tells the viewer that Statutes of Limitation exist, but not how to actually use it in a particular situation. The short answer is that a Statute of Limitation is the time period within which a case — civil or criminal — has to be brought against a defendant. If the Statute of Limitations passes without the case(s) being brought, the defendant can claim the lapsed Statute of Limitations as an affirmative defense. In other words, the defendant can say that even if everything alleged in the case is true, there’s no way for the plaintiff or prosecution to win. The longer answer is that in order to use the concept of Statute of Limitations in the real world, you have to know the answer to three questions: what is the statute of limitations that applies to a given situation? when does the statute of limitations — whatever it happens to be — actually start? under what situations — if any — can the statute of limitations be paused so that the plaintiff or prosecution has more time? Shockingly, TV shows and movies don’t answer these questions. Questions 1 and 2 are fairly straightforward to address. Question 3 is more complicated and requires discussing something called Tolling and what needs to happen before Tolling can be done. In this first post on Statutes of Limitation, I’m going to talk about the answers to Question 1 and 2 above...
by Andy Chen | Feb 16, 2017 | California, Statutes... and stuff
Someone who is going through a divorce in California might sometimes wonder whether an annulment is a viable option instead. This blog post goes over the two types of annulment available under California law. I’m going to cite to sections of the California Family Code wherever I can so you can go look up the statute sections yourself, if you’re so inclined. The first type of annulment in California is for a void marriage. This is when the marriage is void or illegal from its inception. In other words, the marriage in question never existed because it was illegal from the start. Two common reasons for a void marriage are (1) incest under California Family Code section 2200 , and (2) certain kinds of bigamy under California Family Code section 2201. There are other reasons why a marriage might be void. If you have doubts as to whether your marriage might be void, please contact an attorney. Only certain types of bigamy will make a marriage void. Under California Family Code section 2201(a)(2), a bigamous marriage is not void, but only voidable (see next paragraph) if the former spouse of one of the parties is (a) generally believed to be deceased, or (b) not known to be alive for the immediately preceding five years. As an example, suppose A and B get married, but split up after a few years. A and B live apart, but neither actually goes through the process to get divorced. A then moves in with C and they want to get married. If B is known to be alive, then the A-C marriage would...
by Andy Chen | Feb 14, 2017 | Federal
Sanctuary cities have been in the news a great deal ever since Donald Trump became President of the United States. One of Trump’s positions is that cities should not give sanctuary to those in the United States illegally (i.e. sanctuary cities). Those cities who insist on doing so, according to Trump, will no longer receive money from the federal government. In some situations, the federal government provides such huge amounts of money to local governments that cities can’t help but pay attention to Trump’s threat. Regardless of how you feel about politics, this brings up the legal question of whether such a threat actually has any teeth. In other words, could Trump withhold possibly substantial amounts of federal money as a way of forcing cities to no longer be sanctuaries? Assuming Trump does try to follow through with his threat, a lot will depend on the way in which funds are withheld. This is not specific or unique to Trump or to sanctuary cities. When it comes to the law, the “how” is always going to be very important. If we look past the “how”, however, one obstacle that Trump may run in to in withholding federal funds from sanctuary cities is a concept in Constitutional Law called the Anti-Commandeering Doctrine. In a nutshell, the Anti-Commandeering Doctrine places limits on the degree to which the federal government can force the states to undertake a particular course of action. This blog post is not meant to be a full and complete discussing on the Anti-Commandeering Doctrine. I only mean to bring up the term so that, if you’re interested, you...
