Suing the Government

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...

California Domestic Violence Counselor – Victim Privilege

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and, also, to show that the law does confer some benefits on married couple over unmarried couples, regardless of how outdated some people might think the institution of marriage is.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...

Small Estate Administration in California (CA Probate Code section 13101)

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...

California Civil Suits Against Drug Dealers

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...

Domestic Violence as a Tort in California (CA Civil Code section 1708.6)

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...

False Imprisonment in California Torts

This post continues our tour through California tort law. Last time, I went over civil battery which is basically the defendant causing or committing some sort of harmful or offensive contact on the plaintiff without consent and resulting in injury. I’ve also blogged about battery as a criminal offense in California. This time, we’re going to go over false imprisonment which, unfortunately, can have several different definitions and criteria depending on the facts of the situation. The simplest definition is, in essence, that false imprisonment is when a defendant acts without lawful authority and restricts a plaintiff’s freedom of movement for some appreciable amount of time.  Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1006. Defendant locking plaintiff in a room against plaintiff’s will, for instance, would qualify. Incidentally, false imprisonment is also a crime in California under California Penal Code section 236. The criminal definition and the simplest civil definition are identical. The civil definition gets more nuanced if you add in facts such as (1) was the imprisonment due to an arrest or not? (2) if there was an arrest, was it by a California Peace Officer or not? (3) if there was an arrest, was it with a warrant or not? If you’re interested, California defines the term “peace officer” in California Penal Code section 830. Given that some of these permutations don’t make sense (e.g. a private citizen won’t arrest you with a warrant, etc), there’s only three realistic possibilities: #1 – With Arrest by a Peace Officer With a Warrant If an officer has a warrant for your arrest, it does not...

Why Get Married – California Marital Privileges

I know that a lot of people these days are negative on marriage or view it as an antiquated institution. You likely know someone who lives with a long-term boyfriend or girlfriend, has kids with them, owns property with them, and — for all intents and purposes — they are a married couple, just without being married. Despite all of the negatives that people associate with marriage, there are still positives. This blog post is going to go over one of them in California — the Marital Privilege. The Marital Privilege is not unique to California, by any means. New York has it as does the federal court system. This post is just about the California Marital Privilege. If you’ve seen lawyers on television or in the movies, you’ve probably heard of the “Attorney-Client Privilege” at some point. In general, a privilege is something that protects you or excuses you from doing something the law would normally require. With an Attorney-Client privilege, it prevents anyone (e.g. a judge) from forcing your lawyer to disclose what you and your lawyer talked about. There are many different kinds of privilege generally. Each privilege has its own criteria that need to be satisfied first before the privilege can be invoked successfully. Each privilege also has its own limits and exceptions. This post is definitely not an exhaustive explanation. Always check the laws of your state and consult with an attorney about the specifics of your situation. California law recognizes several different kinds of privileges, including the Attorney-Client Privilege and the Marital Privilege. In a nutshell, the Marital Privilege operates like the Attorney-Client Privilege...

Criminal Battery in California

In a previous post, I described the offense of civil battery in California. This post is about how battery is treated under California criminal law. To remind you, the end result of criminal law is the defendant undergoes some form of incarceration (e.g. jail time, probation, etc) while the end result in civil law is to obtain a money judgment or injunctive relief of some kind for the injured plaintiff. Regardless of whether you look at it under civil law or criminal law, a battery is — in essence — the defendant hitting the plaintiff in some way. Civilly, this is phrased as a harmful or offensive touching by the defendant against the plaintiff resulting in injury. California defines criminal battery in California Penal Code section 242 as “any willful and unlawful use of force or violence upon the person of another.” (I encourage you to actually look up section 242 as it is surprisingly short. That quote above is, literally, all it says.) The potential sentence for battery is described in California Penal Code section 243(a) which is, unfortunately, much longer and a more difficult read than section 242. The sentence for battery depends, at a minimum, on who the victim is (e.g. spouse, police officer, etc) and how serious the resulting injury is. Criminal sentencing in general and California in particular can be confusing and complicated. As always, if you have any doubt about your particular situation, consult an...

Permissible Deductions from California Paychecks

Most everyone knows that there is a difference between a gross paycheck and a net paycheck. If you’re not, a gross paycheck is the product of the number of hours you work and your gross pay (e.g. $25/hour, etc). From your gross paycheck, things like federal taxes, state taxes, retirement plan contributions, and other deductions are taken out to give you the net paycheck you actually take home to spend, er, I mean, save prudently. However, are all kinds of deductions allowed from a California employee’s paycheck? That’s the topic of this post. In California, the applicable law for deductions from an employee’s paycheck is California Labor Code section 224, which authorizes four broad categories of permissible deductions: Deductions authorized by state or federal law. Child and spousal support would be in this category; Deductions expressly authorized by the employee in writing for insurance, health or medical dues; Deductions to cover health and welfare or pension plan contributions expressly authorized by a collective bargaining or wage agreement; Deductions not amounting to a rebate or reduction from the standard wage arrived at by collective bargaining, agreement, or statute. As with everything in the law, however, exceptions exist. One exception is that an employer is allowed to deduct from an employee’s paycheck for the reasonable cost of board, lodging, or other facilities furnished to the employee in addition to their wages. 29 Code of Federal Regulations 516.27. What is more common in my experience — which is, again, by no means exhaustive — is for an employer to try and deduct for things that don’t qualify under any of the four...

Civil Battery in California Torts

A “tort” is, generally speaking, something that would allow a victim to sue the offender for money. This is different, obviously, from a “crime” in which the relief sought is not money, but rather incarceration. Incarceration can refer to many different things — community service, probation, etc — and not just time served in jail or prison. One of the first torts I learned about in law school was battery followed very quickly by assault. If your law school experience was like mine, then you learned that a civil battery is a “harmful or offensive touching”. A touching could, in theory, be any sort of contact the defendant makes with the plaintiff’s person or something connected to the plaintiff (e.g. something the plaintiff is holding in his hand). A typical defense to a battery cause of action might be the Crowded World Doctrine, for example. The Crowded World Doctrine basically says that the world is full of people so some amount of physical contact — imagine riding a crowded subway train — with other people is an inevitable part of daily life. This definition, however, is theoretical and terribly useful in the real world if you have actually been involved in a civil battery. A more useful definition would be one that, for instance, lists out the various criteria for civil battery. If you fulfill the listed criteria, then you as a plaintiff have made a case for civil battery. Whether you prevail, of course, depends on what defenses the defendant can raise and prove. In California, the elements of a cause of action for civil battery are as...