by Andy Chen | Apr 25, 2020 | California, Statutes... and stuff
Most people have heard of the term “burden of proof.” Often, this is from TV shows and movies. In this post, I’m going to go over two slight variants to burden of proof that lawyers often use and that most people probably have not heard of before — namely, the “burden of production” and the “burden of persuasion.” To some degree, all three burdens refer to the same thing, but lawyers often use burden of production and persuasion as those are more precise terms. I’m going to talk specifically about California and cite to California statutes, but these concepts are not California-specific. A same or similar type of discussion can, I think, be done in other US states also. In broad terms, the “burden of proof” refers to which party has the obligation to prove the allegation in question. In California, the general rule is that the party that is asserting a claim or defense has the obligation to prove said claim or defense. In California, this rule is in section 500 of the California Evidence Code which provides: Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting. This rule applies to all parties in a case. For example, in a criminal case, the prosecutor has the burden of proving the charges alleged, such as that the defendant robbed a bank. However, the defendant might try to defend himself by saying that he couldn’t have robbed the bank because at the time...
by Andy Chen | Apr 13, 2020 | California, Law, in real life
In this post, I’m going to go over a law that, as best I can tell, is unique to California. If I’m wrong and you have a similar law in your state or country, drop me a comment. The California law in questions is section 17602 of the California Business and Professions Code. As it is a California law, it only applies to California consumers. However, if I run a business and have to invest (e.g. buy new software, etc) to comply with section 17602 for my California-based customers, I see no reason not to apply section 17602 to my customers who aren’t in California also (as long, of course, as it benefits my business in some way). My marginal cost of doing so is basically zero. Section 17602 applies to transactions where consumers purchase a subscription to something, such as a magazine or a monthly-box service (e.g. each month you receive a new box of a certain category of item, such as men’s clothing, pet treats, etc). These subscriptions often are recurring on a monthly or year basis. The consumer — at least in theory — has the option to cancel their subscription at the end of each monthly or yearly-term. How it often works out, though, is that the consumer ends up being charged for things they weren’t expecting. This might be the consumer’s fault because they, for instance, forgot to cancel their subscription in a timely manner and ended up getting charged for another year. Or it could be because the company is unscrupulous and decided to ignore the consumer’s timely request to cancel their subscription....
by Andy Chen | Apr 11, 2020 | California, Constitutional Law, Criminal law
In this post, I’m going to go over a situation that I’m sure we’ve all seen. I’m not sure how often it occurs in reality, but when it does occur, it always seems to go viral. Can you take a photograph or video of law enforcement when they’re making an arrest or detaining someone for an investigation? A lot of the videos I’ve seen before where, for example, someone tries to record law enforcement officers making an arrest involve one or more of the officers threatening or informing the person to put their camera away because making a recording “interferes” or “obstructs” the officers in some way. Three thoughts come to my mind in response to a statement like that: There are enough cameras nowadays everywhere that we’re all being videotaped and photographed in some way every day. This doesn’t even consider the stuff that people voluntarily share on social media. It’s implausible for anyone to expect that anything they do out in the open on a public street is private or confidential in anyway. If you want privacy, confidentiality, etc, you’re not going to find it on a public street. Government is supposed to be transparent as well which means that any government employee (e.g. law enforcement officers) should expect that the public would be interested in what they do. For all of these reasons, I personally don’t buy in to the argument that merely recording or photographing law enforcement officers detaining someone, arresting someone, etc is obstruction, interference, or is in some way improper. If you feel similarly and you’re in California, you’re in luck because California...
by Andy Chen | Apr 6, 2020 | California, Torts
Nowadays, it is quite common for individuals to take photographs and/or videos of a sexual nature and share them with their current relationship partner. Unfortunately, sometimes the relationship ends in an acrimonious way and the recipient of said photographs and/or videos decides — who might feel wronged or slighted — decides to share them with others as a way of getting even. The term “Revenge Porn” is often used to describe this situation. In California, perpetrators of Revenge Porn (i.e. those who share sexual photos and videos of others) can be punished in a variety of ways. For example, there’s criminal prosecution under California Penal Code section 647(j)(4), which I will cover in a later post. One key thing I’ll point out now, though, is that if the victim in a Revenge Porn case is a minor (e.g. 16 or 17 years old), additional charges related to, for instance, child pornography may be on the table also. Many criminal sentences (e.g. jail time) are also increased for Revenge Porn cases involving a victim who is a minor. In this post, I’ll briefly go over the civil suit liability under California Civil Code section 1708.85(a), which provides: “A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse,...
