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...
by Andy Chen | Mar 29, 2016 | California, Law, in real life, Motion Practice, New York, Statutes... and stuff
One of the big parts of litigating a case is doing Law and Motion practice. In a nutshell, this is the process the parties use to ask the court to make a decision. The process of asking is called “moving the court” for a particular decision or result, hence the term “motion practice.” One kind of motion is called a Motion to Set Aside a judgement or order of some kind, including a default judgment. Under California state law, the governing statute is going to be Code of Civil Procedure section 473(b) which states as follows: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any,...
by Andy Chen | Mar 22, 2016 | Law, in real life
Cities and counties will often pass their own laws in addition to the laws passed by the state and federal governments. The sign above is located near a restaurant in Modesto that I go to an alarmingly often. Under Title 3, Chapter 2, Article 8, section 808 of the Modesto City Municipal Code, rollerskating and skateboarding and, apparently, bicycle riding are all prohibited on certain property. The full text of 3-2.808 reads as follows (links are mine): “It shall be unlawful for any person upon roller skates or riding on or by means of a skateboard, coaster or similar device to go upon any roadway in the City or in any City-owned parking lot or City-owned parking structure or in the City of Modesto Transportation Center or in the City of Modesto Amtrak Station or upon the sidewalk in any business district as defined by Section 235 of the Vehicle Code of the State of California or any property of the Modesto City School District, Sylvan Unified School District or Empire Union School District. Provided, however, the Council may, by resolution, grant approval for the use of roadways, City-owned parking lots, City-owned parking structures, and sidewalks for organized skating events of community-wide interest and importance, and that the Public Works Director, or such persons as may be designated by the Director, may grant approval for use of City park parking lots for organized skating events of community-wide interest and importance. In granting such approval, the Council and the Director or the Director’s designee may impose such conditions, restrictions and requirements as they deem necessary or desirable in order to...
by Andy Chen | Aug 26, 2015 | California, Law, in real life, Statutes... and stuff
I was at my local Dick’s Sporting Goods a few weeks ago and, while perusing the firearms, came across this rather enormous sign. California’s gun laws are extensive. I’ll most likely describe the laws enumerating each specific bullet point in future blog posts, but the requirement that such a sign be displayed at all is in California Penal Code section 26835. Section 26835 states as follows: "A licensee shall post conspicuously within the licensed premises the following warnings in block letters not less than one inch in height: (a) "IF YOU KEEP A LOADED FIREARM WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE OBTAINS IT AND USES IT, RESULTING IN INJURY OR DEATH, OR CARRIES IT TO A PUBLIC PLACE, YOU MAY BE GUILTY OF A MISDEMEANOR OR A FELONY UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER OR LOCKED THE FIREARM WITH A LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY FUNCTIONING." (b) "IF YOU KEEP A PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF BEING CONCEALED UPON THE PERSON, WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE GAINS ACCESS TO THE FIREARM, AND CARRIES IT OFF-PREMISES, YOU MAY BE GUILTY OF A MISDEMEANOR, UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER, OR LOCKED THE FIREARM WITH A LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY FUNCTIONING." (c) "IF YOU KEEP ANY FIREARM WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE GAINS ACCESS TO THE FIREARM, AND CARRIES IT OFF-PREMISES TO A SCHOOL OR SCHOOL-SPONSORED...
