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...
by Andy Chen | Aug 10, 2015 | Law, in real life
Many crosswalks in California have signs like these now that, in theory, remind drivers to stop and not run over you. Clearly this sign (at the Target store in Sunnyvale, California) has seen better days at it appears a driver was so attentive that they ran the sign over. Perhaps flashing LEDs embedded in the road would help. The “state law” in question is from the California Vehicle Code, specifically section 21950(a) which states as follows: “The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.” In my experience, though, a lot of pedestrians forget section 29150(b) which states that: “This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run in to the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked...
by Andy Chen | Jul 17, 2015 | California, Law, in real life
If you’ve ever been to a gas station in California, you’ve probably noticed that the station has an air pump to inflate your tires. Every air pump I’ve ever seen also has a water hose to fill your radiator. Some stations have air pumps and water dispensers that require a token that a customer who buys gasoline can get from the attendant. You may have also seen a sign like the one above on the air pump or near it that says that California law requires the station to provide free air and water to it’s customers. The rationale here is to provide for public safety by giving the average driver the means to keep their tires properly inflated and cars from overheating, both of which should reduce accidents. The law in question here was passed in 1999 and went in to effect on January 1, 2000 as Business and Professions Code section 13651. Free air and water is covered in section 13651(a). The requirement regarding the posting of a sign like the one above is in section 13651(a)(2). Section 13651 also covers the availability of gas station restrooms in sub-section (b). Should you as a member of the public come across a gas station that doesn’t have free air and water available to its customers, section 13651(d)(2) provides that the gas station may be subject to a fine of $250 by the Division of Measurement Standards of the California Department of Food and...
by Andy Chen | Jul 8, 2015 | Law, in real life
I was at a grocery store recently and came across this sign in the bathroom. I’m sure many of us have seen this sign before. I looked it up what this California state law was (something tells me it’s in the Health and Safety Code… call it a hunch) and found section 113953.3(a) which specifies a hand and arm washing procedure, including “vigorously rubbing together the surfaces of lathered hands for at least 10 to 15 seconds.” The subsections of 113953.3 list out the situations in which hand and arm washing is required. Subsection (a)(3) says that employees shall wash their hands “After using the toilet room.” Section 113953.3 applies to employees (defined in Health and Safety code 113770) of a food facility (defined in Health and Safety Code 113789(a)). A “food facility” means any “operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level”. In my opinion, this would include both grocery stores and...
by Andy Chen | Jul 1, 2015 | California, Law, in real life
Little known fact, I love Subway Sandwiches. Like a lot. In law school, there was one on my home and I’d stop in there every night. If you’re in California and have been to a Subway Sandwich, you may have noticed that a hot or toasted sandwich costs more than a cold one, all else being equal. One of the Subways in my neighborhood has this sign on its register: Now, personally, a hot sandwich sounds disgusting as all get out, but to each their own. This “sales tax on hot sandwiches” things is apparently a big deal as I’ve seen other Subways with signs similar to this, no doubt attempting to placate customers of hot sandwiches angry about the higher price. I spent some time looking and as best I can tell, the California state law in question is California Revenue and Taxation Code section 6359. It is a bit long to cut and paste for you, but the basic idea is this: Those of us who have gone grocery shopping in California know that you don’t pay sales tax on most grocery items. That is the general rule that, essentially, described in section 6359(a). Section 6359(b) defines in very broad strokes what groceries are exempt from sales tax under Section 6359(a). Section 6359(c) defines some grocery categories that you definitely have to pay sales tax on. As usual, though, there are exceptions to the general rule in section 6359(a). Section 6359(d) defines seven categories of items on which you have to pay sales tax. Number 7 (i.e. Section 6359(d)(7)) is products sold as “hot food products”. “Hot...
by Andy Chen | Jun 27, 2015 | California, Law, in real life, Statutes... and stuff
If you’ve never been to the Central Valley of California (where my Modesto office is), one thing you’ll quickly realize in the summer is that it gets hot. Like 110 degrees hot. All the time. I was at the Modesto Home Depot the other day and came across this sign reminding employers to provide drinking water for their employees — and, of course, to do that with a water cooler from Home Depot. I knew that California required employers to provide water, but I had never looked up what the precise law was. Having seen this sign and being a lawyer and very nerdy, I decided to look it up. It turns out that it isn’t statute that requires employers to provide cooling water to employees, but rather that it’s a regulation. Specifically, it’s Title 8 Section 3395 of the California Code of Regulations entitled “Heat Illness Prevention” issued by the Department of Safety and Health within the California Department of Industrial Relations. Lawyers often cite this as “8 CCR 3395.” Under Labor Code section 6308 and 6317, the Department of Safety and Health — otherwise known as Cal/OSHA — has the authority to enforce Section 3395. Section 3395(c) of Title 8 specifies what the providing of water: “Provision of water. Employees shall have access to potable drinking water meeting the requirements of Sections 1524, 3363, and 3457, as applicable, including but not limited to the requirements that it be fresh, pure, suitably cool, and provided to employees free of charge. The water shall be located as close as practicable to the areas where employees are working. Where drinking water is...
by Andy Chen | Aug 2, 2013 | Law, in real life
I’m in California Superior court quite several times a week for one thing or another. Because of that, I meet a lot of regular lay people (i.e. non-lawyers) at the courthouse who, upon seeing me in a suit, inevitably engage me in conversation during which they ask me a legal question. Unlike most lawyers, I don’t mind this and try to help them as best I can in the minute or so I’m in line with them. One of the things I see a great deal is that non-lawyer lay people do not have access to basic resources that people who are around the law a lot (e.g. lawyers like me) take for granted. There’s the legal research resources, of course, but the resource problem goes deeper than that. One of the things lay people lack is pleading paper, or the paper that has the line numbers on the left and the title page listing out the parties, the name of the court, etc. Pleading paper is really easy to make in Microsoft Word. Since most people have Word, I’ve made a Word document of blank pleading paper for use in California Superior Court. This document should be compatible with Word 2003 and later versions of Word. If you do use it, please modify it for your individual case (e.g. insert the county you are in, the name of your parties, etc). As always, because I don’t know the details of your particular situation, I don’t guarantee or promise the paper will be useful in your situation. Please exercise common sense and ask for help when you don’t understand...
by Andy Chen | Jul 29, 2013 | Swag
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