by Andy Chen | Jan 18, 2017 | Law, in real life, Statutes... and stuff
If you’re like me, you love using the automated check out machine when making purchases at a store. You’re probably not like me in that you don’t notice signs and other postings related to the law, like this one that I saw the other day while shopping at Walmart. I can’t say that I’ve ever bought alcohol at an automated check out machine before, but I apparently couldn’t, even if I wanted to. The law in question here is California Business and Professions Code section 23394.7, which states: “No privileges under an off-sale license shall be exercised by the licensee at any customer-operated checkout stand located on the licensee’s physical premises.” Section 23394.7 originally went in to effect on January 1, 2012, but was challenged in a lawsuit so implementation was delayed until October 18, 2013. For the lawyers in the audience, the case in question is California Grocers Association v. Department of Alcoholic Beverage Control (2013) 219 Cal. App. 4th 1065. I merely present this as an example of law in everyday life. A while ago, I did a similar post involving sales tax on cold versus hot Subway sandwiches in California. I don’t specialize or focus on alcohol-related law (or sandwich law… although that sounds awesome). From what I have read from others, Business and Professions Code section 23394.7 was opposed from the outset by grocery stores with automated check out machines — in the form of the California Grocer’s Association (CGA)– who wanted those machines used to the fullest. Simultaneously, the law was supported from the outset by, among others, unions representing retail clerks who would...
by Andy Chen | Jan 16, 2017 | Law, in real life
One of the common questions I see posted on law question and answer forums for California is some variant of ‘I’ve fired my lawyer and he won’t return my files so that I can go find another lawyer. What can I do?’ I’m surprised by this for two reasons. The first is morals and integrity, namely if a client fired me, I would not withhold their files. Every lawyer — me included — has had a client fire them before. It comes with the territory of being in the profession. Because there is an inevitability to being fired, I don’t see the point of refusing to return the client’s files. It doesn’t solve anything. The second reason I’m surprised, however, is probably more of interest to you if you’re reading this blog post of mine — it violates the rules California has for its lawyers. The rules I’m talking about are the California Rules of Professional Conduct (RPC) and are put out by the State Bar of California. Failure to abide by the RPC subjects a lawyer to discipline by the State Bar. As you can probably gather, being disciplined by the licensing body for your profession is not a good thing. The RPC are fairly short so reading them is not difficult. If you do read them, you’ll find that they cover all types of conduct — from advertising to trust accounts to sexual relations — that lawyers can and can’t engage in. The particular RPC that governs what lawyers have to do if they have been fired by a client is RPC 3-700, Termination of Employment. The...
by Andy Chen | Jan 15, 2017 | California, contracts, Law School Help, Statutes... and stuff
Lawyers often toss around the term “consideration” when discussing the existence or lack of a contract. Consideration is one of the criteria that has to be proven in order to show that a contract exists. In California, consideration is defined in Civil Code section 1605 which states: “Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” As you can perhaps tell, consideration is not something that lends itself to a neat or simple definition. Consideration can take many forms. The common idea behind all of these forms, however, is that the purpose of consideration is to show that a party to a contract has voluntarily assumed the obligation imposed on them by the contract. Thought of another way, consideration prevents a person from accidentally falling in to a contract and being obligated to do something they didn’t intend. Numerous other requirements for consideration are imposed by sections 1606 to 1615 (or so) of the California Civil Code as well. In case you’re wondering, the other required elements of a contract are: (1) parties capable of entering in to a contract, (2) the consent of said parties to enter in to the contract, and (3) a lawful goal or purpose to the contract. See California Civil Code section 1550. Depending on the facts of the particular...
by Andy Chen | Jan 13, 2017 | Law School Help, Statutes... and stuff
One of the things that makes the law unnecessarily confusing for non-lawyers (and lawyers too, let’s be honest) is specialized terminology. This isn’t unique to the law, of course. Many industries and specialties have their own terms and vernacular that makes perfect sense to those in the field, but leaves everyone else scratching their head. In a small, small, small, small, small effort to remedy that for the law, I’m going to explain in this blog post what the legal term “common carrier” means. This post will be specific to California, which means, as usual, that you have to look it up yourself for other states. The term common carrier appeared for me in law school in my torts class. If you happen to be encountering it in your law school torts class now and have no idea what it means, this post is for you. Regardless of whether your professors are explaining the concept, very few professors actually connect the concept to a specific authority in California like I am about to. In California, “Common Carrier” is defined in Civil Code section 2168 which states: “Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” Sections 2169 and onward of the Civil Code also provide other rules and requirements for common carriers. Court cases in California also help define the term Common Carrier. For example, “[A] common carrier within the meaning of Civil Code section 2168 is any entity which holds itself out to the public generally and indifferently to...
by Andy Chen | Jul 15, 2016 | Law, in real life, Statutes... and stuff
Driving around as I do, I can’t help but notice an increasing number of abandoned shopping carts lying around my neighborhood. My best guess is that people who don’t drive to stores are taking the shopping carts in order to avoid having to carry their heavy bags to their home, to the bus stop, etc. I find this interesting because California law makes removal of a shopping cart in this way from the premises of the store a misdemeanor. Specifically, it’s California Business and Professions Code sections 22435 and 22435.1 through 22435.8. There are two caveats to this. The first is that the prohibitions on shopping cart removal under Business and Professions Code sections 22435, et seq only apply if a sign like the one pictured above is affixed to the cart informing users of the laws against removal of said cart. (B&P section 22435.1). The second caveat is that, per B&P section 22435.2, you’re only guilty of a misdemeanor if you remove the cart “with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.” The result is that the mere fact you’ve removed the cart is not enough to make you guilty. You have to remove the cart with a specific intent to deprive the owner of possession, either temporarily or permanently. In other words, guilt comes from proving two elements (removal and intent) as opposed to just removal. Whether intent can or cannot be proven depends, like everything in the law it seems, on the circumstances of the case. In the meantime, I try to corral shopping carts I see in...
by Andy Chen | May 2, 2016 | California, Law, in real life, Statutes... and stuff
In this post, I’m going to discuss something that often arises in a California residential Landlord-Tenant case where the tenant has lost at trial — can the tenant get extra time to move? If you’re a tenant who has lost his eviction case, the general process from the landlord’s side is to (1) get the court to issue a writ of possession, (2) deliver said writ to the county sheriff’s civil division for service, and (3) the sheriff serves the writ. Steps (1) and (2) can take place within one or two business days of the eviction trial. If the landlord is particularly quick, it might be the same day as the trial. (3) usually is what most people recognize as the sheriff coming to the rental property and taping up a sign on the door saying that the tenant has 5 calendar days to move. The timing of step (3) can vary. In my experience, some sheriff civil divisions are not open every day. Others are open only part of a weekday. On top of that, each division may have set schedules for service (e.g. only serving Monday and Wednesdays). Check with the sheriff’s civil division in your case to find out for certain what their schedule is. Let’s assume that 5 calendar days elapses between the time the tenant loses at the eviction trial and the time the sheriff posts a notice on the tenant’s door to move out. The notice specifies another 5 days within which the tenant has to move. What happens if the tenant needs more than these 10 days? The answer is a Stay of Eviction...
by Andy Chen | Apr 25, 2016 | Law, in real life
In a change of pace from my last few posts about California residential Landlord-Tenant law, I’m going to talk about family law, specifically the question of how does one change their name back to their maiden name after a divorce. The “after a divorce” part is important. If you want to change your name generally (e.g. it’s hard to spell, hard to pronounce, etc.), you can, but the process is different. Changing your name after a divorce is, in my opinion, easier than just changing your name in general. There are two ways to do the “after a divorce” name change. The first is when you ask for the name change as part of the case itself. If you’re the one who filed the case, you’re the Petitioner and you can ask for your name to be changed as part of your petition (see box 11(b) on California Judicial Council form FL-100). If you’re not the party who filed, you’re the Respondent, but you can still ask for your name to be changed as part of your response (see box 11(b) on California Judicial Council form FL-120). If you’ve done either of these, the court can grant your name change back to your maiden name as part of the divorce decree or judgment. The divorce judgment is California Judicial Council form FL-180 and the name change is specifically in box 4(f). If you’ve done your name change as part of your case, what you need to d o to change your name with the California Department of Motor Vehicles, the Social Security Administration, etc is get a certified copy of your...
by Andy Chen | Apr 19, 2016 | California, Law, in real life, Statutes... and stuff
In this second post on California residential Landlord-Tenant law, I’m going to talk about the techniques some residential landlords go through to force tenants to move. To see my first post, click here. As I explained previously, there is no license or test to become a residential landlord. Many people just put an ad on Craigslist and things generally go fine… until a problem results. In general, for a landlord to get rid of a tenant, the landlord has to evict them through a court process called an Unlawful Detainer (UD) proceeding. A UD is not difficult and is, in many ways, a cookie-cutter or formulaic process. However, like any court process, it takes time and money that some landlords do not want to spend. One technique that sometimes occurs is the landlord resorts to brute force. For example: the landlord hires individuals to forcibly remove the tenant, the landlord changes the locks while the tenant is out and refuses to provide the new key, and/or the landlord turns off utilities in the hope that the tenant will simply move rather than live with no electricity or water. I would imagine a landlord could think these would be simple and cheap alternatives to a court proceeding, but unfortunately, tactics like these are all highly illegal. The California law in question is California Civil Code section 789.3(a) and 789.3(b). Civil code section 789.3(a) provides: A landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly,...
by Andy Chen | Apr 12, 2016 | California, Law, in real life, Statutes... and stuff
The question sometimes arises whether a residential landlord in California can enter the property being rented by a tenant. Many residential landlords in California are individuals who don’t have to go through any licensing or exam before renting their property. They often don’t wonder about questions like this until a particular situation presents itself and they, for instance, need to get in to the property and wonder if they can. As with any landlord-tenant question in California, there are two preliminary questions that you need to ask: First, does the city or county in which the rental property is have any laws or ordinances that address this question. Most cities and counties in California do not have rent control ordinances and laws, but some do and they are all different. The only way to know whether your city or county has a rent control ordinance or law is to look and then, if you find one, to look at what the ordinance or law says. Second, is there a written lease in effect at the time that describes the landlord’s right to enter on to the property? Most residential leases I have seen in California do not, but every lease is different so the only way to know, is to check yours. Assuming then, that your residential lease doesn’t mention the landlord’s right to enter and there are no local laws or ordinances on the topic, the California state statute you’re going to want to look up is California Civil Code section 1954 which says the landlord can enter to: if there is an emergency, to make improvements or...
by Andy Chen | Apr 5, 2016 | California, Federal, Statutes... and stuff
One of the things most people are surprised to learn is that if they sue someone for money and win, the court does not actually help them collect their money. In general, the judge will sign an order stating that Person X (say, the plaintiff) is awarded $X and that’s it. It is up to Person X to actually go and collect that money somehow. This collection might be easy and quick or it could be difficult and very time-consuming. If your situation happens to fall in the latter camp, one protection you might have is post-judgment interest. The idea of post-judgment interest is that it is interest that accrues from the date the judgment is signed by the judge and filed by the court. The details of this arrangement (e.g. the precise interest, whether the interest is simple or compound, etc) will depend on what jurisdiction your case is in. In California, for example, post-judgment interest is 10% simple per year, as specified in California Code of Civil Procedure section 685.010(a). A common question California creditors ask is whether the attorney’s fees they incur while collecting on their debt can be added to the debt. California Code of Civil Procedure section 685.040, unfortunately, says no, unless otherwise provided for by law or as part of the underlying judgment. Other costs besides attorney’s fees, however, should be recoverable. As always, consult with an attorney to see precisely what applies in your situation. An exception to this may be when the debtor is the government. In that case, the interest rate may be capped at 7 percent under California Civil Code...
