by Andy Chen | Jul 4, 2021 | California, Family Law
For your annoyance, er, amusement today, I present another blog post on California child support. Today, I’m specifically going to talk about when it’s possible under California law for the parents of a minor child to agree to an amount that’s different than what the family court computes. To begin, it’s helpful to understand what California child support consists of. I have a video on my Youtube channel where I go over the various components that go into the overall child support figure that a parent either pays or receives. Most laypeople just know the overall figure and don’t actually know what goes into computing it. This amount, of course, is computed in the comfort and peace of a courtroom. What kind of child support actually works in the real world, though, can easily be very different. If this is your situation, do you and the other parent have the ability to adjust your child support? Or do you have to live with some impractical figure that was computed by someone who may not actually know your life? The answer is yes, you and the other parent do have the ability to inject some realism into the child support amount that applies in your case. The governing law for that in California is Section 4065 of the Family Code. Section 4065 says that the parties to a case can agree to go below the guideline amount computed with the formula in Section 4055 if the two of them declare the following to be true: They are fully informed of their rights concerning child support The order is being agreed...
by Andy Chen | Jul 2, 2021 | California, Family Law
If you’re involved in a child custody or visitation case, there’s a good chance you’ve encountered the term “best interests of the child.” As a general rule, when there are minor children involved in a California family law case, courts will try their best to come up with a custody and visitation arrangement that is in the best interests of the child. The phrase “best interests” is tossed around a great deal, though, without much definition or specificity. In this post, I’m going to try and change that by, as should be no surprise, going over a California statute. I’ll toss in a little common sense at the end also. The Statute When it comes to statutes, there’s two-levels of analysis. First, the statute — Section 3011 of California’s Family Code, if you want to look it up — does contain a list of factors that courts can consider when trying to determine what is and is not in a child’s best interest. The second-level, though, is that this list is not exhaustive. In other words, the court can also consider factors other than what the statute explicitly lists. The list in Section 3011 says: The “health, safety, and welfare of the child”; Whatever history of abuse exists, if any, that is perpetrated by the party seeking custody now; ( The “nature and amount of contact with both parents”; (If this is your situation, you need to read the text of Section 3011 as well as that of Section 3046 because a lot of exceptions apply). The “habitual or continual illegal use of controlled substances,” abuse of alcohol, or...
by Andy Chen | Jun 26, 2021 | California, Family Law
In a prior post (from 2019, apparently. Didn’t realize it was that long ago), I went over the Automatic Temporary Restraining Order (i.e. the “ATROS”) that applies in California divorce cases. The governing law there was basically Section 2040 of California’s Family Code. I also have a similar post on New York’s ATROS which I also put out in 2019. In this post, I’m going to over a more minor aspect of California’s ATROS, but a very important one nonetheless: When is a California ATROS effective? The answer to that question is, conveniently, also in California’s Family Code. It would make sense if it was in a section close to Section 2040 since you would assume code sections that go over similar topics would be grouped together. You would assume that… but you’d be wrong. The governing law that answers the effectiveness question is actually Section 233 of the California Family Code. Because of course it’s in Section 233. Why would it not be? Anyway, the answer is specifically in Section 233(a), which states: “Upon filing the petition and issuance of the summons and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, the temporary restraining order under this part shall be in effect against the parties until the final judgment is entered or the petition is dismissed, or until further order of the court.” As usual, I’ve bolded and underlined the important part of the statute, which in this case is basically the first half. The ATROS is effective on the petitioner — in other words,...
by Andy Chen | Jun 24, 2021 | California, Feel good series, Statutes... and stuff
This past week, I came across several memes on Facebook about what you’re supposed to do in California if you encounter a dog or other animal locked inside a vehicle with the windows up. The concern, of course, is that the interior of the car will overheat on a summer day and the animal will die. Being the legal research nerd that I am, I took it upon myself to look up the relevant and bore — er, I mean, share — that law with all of you. It’s also an opportunity for me to share a lot of the dog photos I’ve accumulated over the years. Anyway, there are two questions I’ll answer: What California law prohibits leaving a dog or other animal in a hot car? What California laws allow a bystander who sees a dog locked in a hot car to break the window of that car to rescue that dog or animal? #1: What law prohibits leaving a dog in a hot car? The relevant California law here is Section 597.7 of California’s Penal Code. Section 597.7 has a lot of subsections to it so I would encourage you to read the actual text of the statute if you have a situation that involves an animal having been left in a hot vehicle. As I’ve mentioned before, my posts are ultimately just my paraphrasing of the relevant law. I’ve included links in this post and in all my other posts to the relevant code sections in California should you want to do your own research. Anyway, the subsection that addresses the leaving of animals in...
by Andy Chen | Jun 21, 2021 | California, Statutes... and stuff
In this post, I’m going to talk about California Living Trusts and specifically a very common situation that I encounter relating to trustees and beneficiaries. The basic scenario is something like this: Elderly parents who made a living trust years ago, but are now too infirm to really handle things themselves so someone else is serving as trustee of the Living Trust. That trustee is a lay person and, basically, is doing something incorrectly. This incorrect thing that the trustee is doing can vary greatly. On the one hand, it might be that the trustee is doing everything properly, but they just haven’t filled out the right forms simply because they didn’t know that they had to do that. Correcting the problem (e.g. filling out the right forms) is easy. On the other hand, it’s also extremely common for the trustee to knowingly and purposely do something incorrectly. In other words, the fact that the trustee is not a lawyer or has never been a trustee before is not an excuse. They should have known regardless that what they were doing was wrong. A very common example of this is taking money from the trust for the trustee’s own personal use. The beneficiaries to the trust suspect that the trustee is doing something improper because the trustee refuses to talk to them, won’t let them see the trust document itself, etc., but don’t know for sure because the trustee is being so tight-lipped about everything. The legal question, then, is basically what rights to the beneficiaries have in such a situation to hold the trustee accountable? The Root Cause...
by Andy Chen | Jun 17, 2021 | California, Statutes... and stuff
I was recently called for jury duty. For those of you wondering whether lawyers actually get called for jury duty, the answer is a most definite yes. I was ultimately not selected to be on the jury, but I did have to sit through two days of voir dire. Seeing it form the juror’s perspective was exciting given that I’m usually the one doing the voir dire in a setting like that. Anyway, the experience of having been through that gives rise to the topic of today’s post which is “What qualifications do you have to meet in California in order to be a juror?” Like with many things I go over on this blog, there’s an app for that… oops, sorry, what I actually meant to say was “There’s a statute for that.” In this case, the statute in question is Section 203 of the California Code of Civil Procedure, which states: “(a) All persons are eligible and qualified to be prospective trial jurors, except the following: (1) Persons who are not citizens of the United States. (2) Persons who are less than 18 years of age. (3) Persons who are not domiciliaries of the State of California, as determined pursuant to Article 2 (commencing with Section 2020) of Chapter 1 of Division 2 of the Elections Code. (4) Persons who are not residents of the jurisdiction wherein they are summoned to serve. (5) Persons who have been convicted of malfeasance in office and whose civil rights have not been restored. (6) Persons who are not possessed of sufficient knowledge of the English language, provided that no person shall be deemed incompetent solely because of...
by Andy Chen | Jun 15, 2021 | California, Statutes... and stuff, Torts
Today’s post is going to be another short one. In it, I’m going to go over the statute of limitations for a wrongful death lawsuit in California state court. As a reminder, a “statute of limitations” is the time period within which a plaintiff wanting to file a civil lawsuit (e.g. seeking money) must do it in. If the plaintiff waits too long (e.g. even by one day), they will lose their lawsuit simply because they waited too long. The topic of wrongful death litigation can get complicated when you look at questions such as (1) who is an acceptable plaintiff in a wrongful death suit?, and (2) what damages can be recovered in a wrongful death suit? I’ll go over these questions in future posts, but for today’s post, I’m going to look at just the time element involved, namely the statute of limitations the plaintiff has to file their civil suit within. In California, the answer is two years. Under Section 335.1 of California’s Code of Civil Procedure, a plaintiff in a wrongful death lawsuit must file that suit within two years of the date the death in question occurs. Section 335.1 itself says the following: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Two years, however, is the general rule of thumb to remember. However, as with many things in law, exceptions can exist which may make the actual statute of limitations in your case shorter than two years. If that applies in your situation, you obviously...
by Andy Chen | Jun 13, 2021 | California, Statutes... and stuff
I would have thought it common sense that you shouldn’t bring a weapon to court unless you’re a law enforcement officer, using the weapon as evidence in a case, etc. However, in case it isn’t common sense, there’s this sign at the entrance to the Criminal and Family courthouse in Modesto, California. If you look under the red wording that says “By Court Order, all persons entering this building are subject to search”, you’ll see that it’s a crime to bring any of a whole littany of weapons in to the courthouse, including but not limited to, firearms, stun guns, tasers, gas weapons, and mace. The statutory authority for that is California Penal Code section 171b which, in a nutshell, outlaws the bringing and possessing of weapons in to a state or local public building. Section 171b also lists out a whole bunch of exceptions to this prohibition, such as law enforcement officers, people using the weapon as evidence in a case, and people who have been specifically granted permission to bring the weapon in. The prohibition does, however, remain in effect (i.e. it’s an exception to the exception to the prohibition) as to those persons who are parties to a case. For instance, a law enforcement officer can carry their firearm if they are on-duty (e.g. a sheriff’s deputy working as a baliff at the courthouse), but if they are showing up for a child custody hearing in their own divorce, then they can’t. You can read over the entirety of Section 171b at your leisure, but I want to point out the section’s definition of a “state...
by Andy Chen | Jun 12, 2021 | California, Criminal law, Law School Help
In today’s post, I’m going to go over the California crime of Identity Theft. In this series of posts that I’ve, apparently, labeled “Law School Help,” I’m going to try and go over terms (e.g. common criminal offenses) that ordinary people might have heard and provide a basic description of the legal authority (e.g. the particular statute section), the elements involved, and any sentence that the offense in question might carry. In prior posts, I’ve gone over questions like “What is Consideration?” and “What is a Common Carrier?” If you’re a law school student and you’re reading this, hopefully this series of posts provides you more real-world or practical knowledge compared to the more abstract or theoretical concepts you’re learning about in the classroom. Anyway, the topic today is the criminal offense of Identity Theft. Identity Theft is, unfortunately, extremely common. Some of you reading this have probably been the victims of it yourself. In California, Identity Theft is a crime and it’s covered under Section 530.5 of the California Penal Code. Section 530.5 goes over several different flavors of identity theft which I’ll go over in a moment, but the underlying offense of Identity Theft consists of: Willfully obtaining Personal Identifying information of another person Using that Personal Identifying information for any unlawful purpose. “Unlawful purpose” includes, but is not limited to, obtaining or attempting to obtain credit, goods, service, real property, or medical information This use of the Personal Identifying information is done without the consent of this other person. If you want to look it up, this is all in Section 530.5(a) of the California Penal...
by Andy Chen | Jun 10, 2021 | California, Torts
Here’s another installment of my series of posts on the Statute of Limitations. Today, I’m going to go over the tort of Conversion under California law. As background, “conversion” is a fancy way of saying that a person (i.e. the defendant) has interfered without consent with the plaintiff’s ability to use their property by, for instance, (1) preventing plaintiff from having access to it, or (2) destroying it. The term arises because the defendant has taken plaintiff’s property and converted it — hence, “conversion” — to the defendant’s own use. If that definition makes sense, you might be asking “Andy, how is this different from theft?” There are at least two answers to that question: First, in California, “theft” is a crime. See, for example, Sections 484 and 487 of the California Penal Code. California further divides “theft” into two degrees based on the dollar value of what was taken. Under Section 486 of the California Penal Code, if it’s under $950, then it’s “petty theft,” but if it’s over $950, then it’s “grand theft”. Second, the crime of theft fundamentally involves the taking of property. This taking may involve fraud or deception, but it doesn’t have to. Taking property, though, is only one way in which conversion can be done. Conversion fundamentally involves interference of some kind with the owner’s ability to use the property. It is possible to interfere without actually taking the property from the lawful owner. Phrased another way, theft would be a kind of conversion, but there are other types of conversion besides theft. Anyway, definitions and theft aside, the question I was trying...
