by Andy Chen | Sep 12, 2017 | California, Individual, Law, in real life
In a divorce case, one of the big things that the courts in California will decide is custody and visitation of any minor children that the divorcing parties may have. I haven’t checked, but this is probably not unique to California. As always, check the laws of your particular state or country, but if you’re in the United States but outside of California, the court presiding over a divorce will likely determine child custody and visitation also. To be clear, custody and visitation are not interchangeable terms. As they are commonly used in California, “visitation” refers to the schedule by which the child will visit with the parent they do not regularly live with. For instance, if the child lives with Mom regularly, then visitation refers to the schedule under which the child visits with Dad. There could be a visitation schedule for regular or routine weeks and a different schedule for other times of the year, such as holidays and the child’s summer vacation from school. Custody — again, as used in California — refers to two kinds: (1) legal custody, and (2) physical custody. Legal custody refers to the right of a parent to decide things related to the child’s schooling, medical care, and religious education. As a rule of thumb, legal custody is at play whenever a parent has to sign a permission slip (e.g school field trip) of some kind for the child to do something. Physical custody refers to who the child lives with. A common custody arrangement might, therefore, be “shared legal custody and primary physical custody to Mom with Dad having visitation”....
by Andy Chen | Sep 10, 2017 | California, Law, in real life, New York, Statutes... and stuff
California is a community property state when it comes to divorces. The idea of community property is not difficult to understand in the abstract — colloquially, you might have heard it as the rule that in a divorce, you get (or lose) of the stuff. See California Family Code section 2550. Property is basically put in to one of three categories: (1) stuff owned by spouse #1 from before the marriage, (2) stuff owned by spouse #2 from before the marriage, and (3) stuff that the two spouses acquired while they were married. The property in category (3) is divided in half — again see California Family Code section 2550 — while the property in (1) and (2) goes to each spouse respectively. Applying the idea of community property in the real world is not so simple. First, the spouses will argue about which category (1, 2, or 3) a particular piece of property falls in to. Second, if each spouse acquires property after they separate, determining when that property was acquired relative to the separation date can also be argued about, sometimes extensively. Third, it can often be confusing, such as when property was purchased prior to the marriage and financed or paid for partly during the marriage. Houses often fall in to this category. If you’re dealing with a California divorce where a house was purchased by one spouse before the marriage, but the mortgage was paid for during the marriage, you may be interested in something called a Moore-Marsden computation. Community property in divorces is the exception rather than the rule in the United States. The...
by Andy Chen | Jul 11, 2017 | California, Law, in real life, Statutes... and stuff
In California, are license plates required to be on both the front and back of a car? This question comes up every now and again, usually by those who have bought a car, but don’t like the aesthetics of having a license plate on the front of the car also. As with any argument about cars, people hold passionately to their views. Regardless of which side of the argument you fall on, what ultimately matters for your pocketbook is what a police officer can ticket you for. If you’ve bought a new car in California, you’ve likely received — or will receive — this envelope from the California Department of Motor Vehicles containing your license plates. The law that the envelope refers to is California Vehicle Code section 5200. The general rule regarding where you display your license plates depends on how many license plates the California Department of Motor Vehicles gives you. If you receive two, then one goes on the front of your car and one goes on the rear. That’s California Vehicle Code section 5200(a). If you only receive one, then it has to go on the back of your vehicle. That’s section 5200(b). If you think you’ve only received one plate, check to make sure that they aren’t just stuck together. Oh, and in case you’ve ever wondered, yes, license plates — at least in California — are made by prison inmates. Here’s the website of the California Prison Industry Authority....
by Andy Chen | Jun 15, 2017 | California, Law, in real life, Statutes... and stuff
If you’re shopping for a used car in California, something you might be wondering about — and if you’re not wondering about it, you should for the reasons I’ll describe — is whether or not a smog check needs to be done. If you’re looking on a website like Craigslist where anyone can post a vehicle for sale, for example, you might see a lot of ads where the seller says: The smog test is the buyer’s responsibility, The vehicle passed smog “6 months ago”, or The vehicle is “smog ready” I’ve always assumed that “smog ready” means the vehicle can pass a smog test which, if you think about it, could have two possible meanings: (1) the vehicle will pass smog and the seller agrees to do that as a condition of the sale, or (2) the vehicle will allegedly pass smog, but the buyer has to buy the car first and bear the risk of it not actually passing smog. So the question for this blog post is this: what is the rule about smog tests when you’re buying a new car in California? Two things before we dive in to the answer: First, if you’re not in California and don’t know what a smog test is, it’s an emissions test that your car has to pass in order to get registered in California. Smog tests are, thus, an air pollution control measure. If your car can’t pass a smog test and you can’t fix it, then you cannot register it in California. Depending on your situation, you may be able to sell your car to your...
by Andy Chen | May 16, 2017 | California, Law, in real life
The vast majority of people don’t have any dealings with law enforcement at all, aside from the occasional traffic ticket. To them, the term “police officer” refers to any uniformed local-level law enforcement officer. In California, at least, the term “police officer” technically refers only to those officers employed by the city, usually by a police department run by the city. Another uniformed local law enforcement officer in the US that you might encounter is a deputy sheriff. There are a number of differences between a deputy sheriff and a police officer. Deputy sheriffs work for the county. Police officers work for a city. If a crime occurs in a city, it falls to the police to take care of it. If a crime occurs in a county, but outside of a city that has its own police department, it falls to the sheriff’s department of that county to handle it. The sheriffs department will generally work pretty closely with the police departments of the cities in that county so this distinction may not be that big in practice. In California, the sheriffs department in a county is in charge of running the county jail as well as security at the county’s state courts. In California, the sheriffs department is also the one who is involved in the legal process of the courts. This includes serving legal papers (although this varies from county to county) and carrying out orders of the court, such as seizing property of a debtor or evicting a tenant. Of course, there are also a lot of similarities between deputy sheriffs and police officers, not...
by Andy Chen | May 2, 2017 | California, Law, in real life, Statutes... and stuff
In my experience, most people tend to have a good intuition about how to sue a private person, such as someone who has damaged or broken your property. That intuition also applies — with minor differences — to suing a corporation, limited liability company, or other entity. When it comes to suing the government, though, the rules change significantly and most people’s intuition tends to let them down. I don’t know where the rumor started, but you can indeed sue the city, county, state, and federal government. This post, though, is not going to cover suing the federal government, but instead I’m going to go over how to sue the city, county, and state in California under something called the California Tort Claims Act. Two things I want to mention first: First, you might think that you would never sue the government itself (e.g. State of California, City of San Diego, etc), but remember that the government — like any entity — acts through individuals. Thus, if you’ve been injured or damaged as a result of the actions of a city, county, or state employee (e.g. city police officer, public school teacher, etc), it’s the city, county, or state that may be ultimately responsible. Second, if you ever do find yourself in a position where you might have to sue the government, please do find a lawyer to help you. As I’ll describe generally below, the rules for suing the government are very specialized and strict. In general, it is not something you can wing or simply figure out. Spend the money and effort to find a lawyer who...
by Andy Chen | Apr 8, 2017 | California, Law, in real life, Statutes... and stuff
In a prior post, I described California’s Marital Privileges under the guise of illustrating that there are benefits to being married versus just living together. That post was general — this post will be general as well — but the idea was to introduce you to the idea of a privilege and, also, to show that the law does confer some benefits on married couple over unmarried couples, regardless of how outdated some people might think the institution of marriage is. To refresh, the idea of a privilege is — in general — that it allows you to do something or refuse to do something that would ordinarily garner a punishment under the law. In my Marital Privilege post, I described how that privilege can, depending on the situation, allow communications between spouse to be kept private, for instance. Many people have probably heard of the Attorney-Client privilege under which an attorney is allowed to refuse — even refuse a judge’s order — to disclose what the lawyer and the lawyer’s client talked about. Attorney-Client privilege is certainly not unique to California, but if you’re interested, the statute for Attorney-Client privilege in California is section 954 of the California Evidence Code. The Marital Privileges as well as the Attorney-Client privilege are just two kinds of privileges California recognizes. This post will be about another privilege, namely that between a victim of domestic violence and a domestic violence counselor. The California statute for this is section 1037.5 of the California Evidence Code. As always under the law, definitions are extremely important. The privilege exists between a victim and a domestic...
by Andy Chen | Apr 4, 2017 | California, Law, in real life, Statutes... and stuff
Many people have estate plans these days. Depending on the person’s situation, they may have a will, a trust of some kind, as well as a Power of Attorney and an Advanced Health Care Directive. Having all of these in place can be very prudent given what can happen — under intestate succession, for instance, — if a person dies without these documents in place. Having these documents in place is, however, only the first part of the solution. The second part is knowing what do with the documents once the person actually passes away. Death, obviously, can come unexpectedly so it is prudent to always be prepared. This post is about a process called Small Estate Administration. I’m going to talk specifically about California, but the idea of small estate administration is not unique to California. Many other US states have it as well. As always, if you are outside of California, you need to look up the specific small estate administration process and requirements for your state. In California, the Small Estate Administration process is described in California Probate Code section 13100 as well as the sections that follow. The basic idea behind a small administration process is that when someone passes away, an estate is created automatically. An “estate” is an intangible legal idea that encompasses all of the property (e.g. cars, bank account, stock, etc) that the deceased owned at the time of their death. The individual items in the estate can be valued at some amount which means it is possible to determine the total dollar value of the deceased’s estate. The “small” in...
by Andy Chen | Mar 31, 2017 | California, Law, in real life, Statutes... and stuff
A lot of people probably know that you can sue for money if you’re the victim of an act. For example, someone sells a defective product that injures you, a doctor makes a mistake that causes you pain and suffering, etc. As a category, these offenses that victims can sue for money on are called “torts”. There are some very common torts (e.g. negligence, false imprisonment, etc) that get taught in pretty much every law school. Then there are some unusual torts, like the subject of this post: suing drug dealers for the damage they cause in marketing, distributing, and selling drugs. In California, this is under the Drug Dealer Liability Act (DDLA) (California Health and Safety Code section 11700). Other states in the US may allow suits like this as well. As always, check your state’s laws or consult an attorney in your area to see what is prudent for your particular situation. I’m going to abbreviate “Health and Safety Code” as “H&SC” below. Basic Elements of a DDLA suit: Most tort offenses have a set number of specific criteria that the plaintiff has to satisfy in order to win. For a DDLA suit, the elements are: Plaintiff is a member of a specific class of persons (H&SC section 11705) (see below); There is a specific person who used the drugs (H&SC section 11703(b)); Defendant is anyone who sold, administered, or furnished drugs or, as in certain situations described below, knowingly participated in marketing said drugs (H&SC section 11705(b)(1) and (b)(2)); The defendant’s acts proximately caused plaintiff to suffer injury (H&SC sections 11704(a), 11702(a)) Who Can Sue Under...
by Andy Chen | Mar 25, 2017 | California, Law, in real life, Statutes... and stuff
Domestic violence in California can be treated three ways: (1) as a crime under California Penal Code section 273.5, (2) as a family law offense beginning with California Family Code section 6200 as well as the statutes thereafter (i.e. the California Domestic Violence Prevention Act). This is how Domestic Violence Restraining Orders are issued by a California family court. Both of these are pretty commonplace. There’s a chance you may have heard of one or both of these before. The third way is perhaps less commonly known: Domestic violence is a civil tort in California for which a lawsuit can be filed just like in a medical malpractice lawsuit or a car accident lawsuit. The governing statute for the tort of domestic violence is California Civil Code section 1708.6. The criteria for this are pretty simple: Plaintiff suffers injury as a result of abuse, Said abuse was intentionally inflicted by the defendant who was in one of the specified relationships under California Penal Code section 13700(a) with the Plaintiff; Plaintiff’s injuries were proximately caused by the abuse inflicted by defendant. Under section 13700(b), the allowed relationships are: spouse, former spouse, cohabitant, former cohabitant, person with whom the defendant has a child, person with whom defendant is having or has had a dating or engagement relationship. The statute of limitations on a Civil code 1708.6 Domestic Violence suit is 3 years from the date of the last abusive act. (California Civil Code section 1708.6(e)). This statute of limitations doesn’t begin until the abuse stops, but the plaintiff can recover for all domestic violence-related injuries during the entirety of the relationship. There’s...
