by Andy Chen | Aug 11, 2020 | New York, Torts
In this post, I’m going to go over the tort of Abuse of Process under New York law. I went over Abuse of Process under California law in a prior post. As a refresher, a tort is something a person who has been wronged can file a civil lawsuit over. The plaintiff in such a suit most often requests some amount of money from the defendant, although other types of relief (e.g. declaratory, injunctive, etc) are possible also. As it is in California, many torts in New York are element-based. In other words, there are a set number of criteria for that tort. The plaintiff establishes the defendant’s liability for the tort by proving that each of those elements are met. In New York, the criteria for Abuse of Process are: regularly issued legal process, civil or criminal, compelling performance or forbearance of some act, and the person activating the process was moved by an ulterior purpose to do harm, without economic or social excuse or justification, and the person activating the process south some collateral advantage or corresponding detriment to the plaintiff that is outside the legitimate ends of the process, and plaintiff suffers actual or special damage. Based on my cursory research, there seem to be quite a few cases in New York that lay out these criteria. I could be wrong, but it looks like all of those cases stem from a 1975 Court of Appeals of New York case called Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc Local 1889 AFT AFL-CIO (38 NY2d 397). The case is...
by Andy Chen | Aug 9, 2020 | New York, Statutes... and stuff
In this post, I’m going to go over what the statute of limitations is for a wrongful death lawsuit under New York law. As a refresher, a “statute of limitations” is the time period within a lawsuit has to be commenced. If you miss this time period — even by a day — and file your lawsuit late, you could have the most perfect lawsuit (e.g. the best evidence, multiple independent witnesses, an admission by the defendant, etc) and you could still lose just because you filed your suit too late. There are certain situations in which a statute of limitations is paused (aka “tolled” in lawyer-speak if you want to google it), but those are the exception rather than the rule. Tolling is also beyond the scope of this particular post, although I may address it in a future post. The relevant NY statute on the topic of the statute of limitations in a wrongful death civil lawsuit is New York Estates Powers & Trusts Law section 5-4.1(1)), which states: “The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent’s death; provided, however, that an action on behalf of a decedent whose death was caused by the terrorist attacks on September eleventh, two thousand one,...
by Andy Chen | Aug 7, 2020 | California, Criminal law, Statutes... and stuff
Over the last several months, the Los Angeles Police Department has been involved in a scandal where several of its officers have been accused of adding people to California’s CalGang database without sufficient cause. The Los Angeles Times has reported on this extensively. Some officers have been criminally charged with falsifying the evidence and documentation needed to justify adding someone to CalGang. Allegedly, these officers were fabricating this evidence in order to meet quotas instituted by LAPD’s data-driven culture about how many people they needed to add to CalGang. Failure to meet those numbers would presumably have been used as evidence individual patrol officers were not doing their jobs, not being productive, etc. The LAPD has now been sued civilly for this scandal by people who allege that they suffered injuries (e.g. job loss) as a result of being improperly included in CalGang. In this post, I’m going to go over two sections of California’s Penal Code — sections 186.34 and 186.35 — pertaining to how individuals who have been added to CalGang can challenge their inclusion. These two statutes, obviously, are not specific to the city or county of Los Angeles. If you have a problem with CalGang elsewhere in California, these statutes might be helpful for you as well so read on. What is CalGang? Let’s start from the basics. CalGang is a statewide database maintained by the California Department of Justice. Like any database, it is meant to provide a single source for accurate information about a particular subject that multiple parties can draw upon. According to the CalGang website, CalGang’s purpose is to “provide law...
by Andy Chen | Aug 5, 2020 | New York, Statutes... and stuff
Background of this post: I’m a podcast junkie. I listen to them all the time (e.g. iPod, car, in the office, etc). Lately, a lot of them are from Wondery. One of their podcasts is called American Scandal and goes over scandals of various kinds (e.g. Iran Contra, Boston College athletics gambling, etc) that have occurred through the 19th and 20th centuries. One of the scandals they went over was Payola. In essence, it was the practice in the early to mid-20th centuries where radio DJs were paid money to promote or play one record company’s songs over another with the goal of making certain songs more or less popular than others. These payments were, of course, not disclosed to the public who generally thought that the songs being played were just part of the day’s normal broadcast. Part of the American Scandal podcast went over how New York played a role in ending payola because of its statutes criminalizing commercial bribery. Those statutes are the topic of this post. More accurately, I’m going to go over what the current commercial bribery statutes in New York are. Statutes change all the time. The current statutes may or may not have been what was in effect back when Payola was occurring. Under current New York law, there is both second-degree and first-degree commercial bribery under sections 180.00 and 180.03, respectively, of New York’s Penal Law. What’s the difference between the two degrees? Well, I’m glad you asked. The answer is the magnitude of the benefit and damage involved. Under section 180.00, second-degree commercial bribery is defined as: “A person...
by Andy Chen | Aug 4, 2020 | New York, Statutes... and stuff
I released a post a few months ago that went over the question of whether, under California law, a bystander can make a recording of the police. For example, when the police are making an arrest, a detention, etc. I’m sure all of us have seen videos like this that have been shot on a smartphone. In today’s post, I’m going to address that same question, except for New York. In other words, is it permissible under New York law to make a video or audio recording of the police while they are, for example, making an arrest, detaining someone, etc. As I described in my prior post, the governing law for California was signed into law in 2015 by then-Governor Jerry Brown and took effect January 1, 2016. The governing law in New York is a bit newer. It was signed into law in in June 2020 by Governor Andrew Cuomo and adds a new section (section 79-p) to New York’s Civil Rights Law. Section 79-p itself has a subsection 2 which states the following: “2. Right to record law enforcement related activities. A person not under arrest or in the custody of a law enforcement official has the right to record law enforcement activity and to maintain custody and control of that recording and of any property or instruments used by that person to record law enforcement activities, provided, however, that a person in custody or under arrest does not, by that status alone, forfeit the right to have any such recordings, property and equipment maintained and returned to him or her. Nothing in this subdivision shall...
by Andy Chen | Jul 3, 2020 | California
In a prior post, I went over the Preliminary Notice (aka “20-Day Notice”) as the first step in pursuing a Mechanics Lien in California. In another post, I went over the importance of having a construction contractor’s license in California. If you don’t have such a license, you’re forbidden from suing if a client doesn’t pay you. You’re also vulnerable to being sued for disgorgement of all compensation you earned while unlicensed. In this post, I’m going to address a question posed by a hybrid of these two posts: can you pursue a mechanics lien if you’re a construction contractor working without the required license? The short answer here is no. If you work in the construction trades and you don’t have the license that California requires you to have, you cannot pursue a mechanics lien against a client/customer who doesn’t pay you. The reason is the same statute I went over in my prior post, section 7031 of California’s Business and Professions Code. Section 7031(a) says: “Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person, except that this prohibition shall...
by Andy Chen | Jun 11, 2020 | California
Many people, at some point in their lives, hire a construction professional — such as an electrician or general contractor — to do some sort of project, such as a home remodel or addition. California has licensing requirements for many professions (e.g. attorneys), including for those employed in the construction trades. For the construction trades, the main licensing agency in California is the Contractors State Licensing Board run by the California Department of Consumer Affairs. California has too many construction-related licenses for me to go over in this post. What I am going to describe in this post, though, is one important statute that applies when a consumer hires a contractor or other construction professional who is unlicensed. That statute is section 7031(b) of California’s Business and Professions Code, which provides: “Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.” In other words, the mere fact that a contractor is unlicensed can allow his/her customer to sue for a full refund of compensation paid. For full context, however, we have to also look at section 7031(e) because that section provides some exceptions: “The judicial doctrine of substantial compliance shall not apply under this section where the person who engaged in the business or acted in the capacity of a contractor has never been a duly licensed contractor in this state. However, notwithstanding subdivision (b) of Section 143, the court may determine that there...
by Andy Chen | Jun 9, 2020 | California, Family Law
Most people are probably familiar with child custody in the context of a divorce. For example, one parent has the child (or children) these days and these times while the other parent has them these other days and other times. In California, child custody can also be described via another option, namely the Caregiver’s Authorization under section 6550 of the California Family Code. What a Caregiver’s Authorization allows another adult — called the “Caregiver” — to assume certain authority over a minor child without court involvement. This authority, however, is limited to that related to the child’s schooling and medical care. All that’s required is that the Caregiver sign a declaration stating, among other things, that the minor child is now living with them for whatever reason. The amount of authority the Caregiver gets is dependent on factors such as their relationship to the minor child and the contents of the declaration signed. A sample declaration is provided in section 6552 of the California Family Code. For instance, if you’re the Caregiver and you only fill in sections 1 through 4 on the sample declaration provided in section 6552, section 6550(a) only allows you to “enroll a minor in school and consent to school-related medical care on behalf of the minor.” If you’re interested — as I was when I saw the term — “school-related medical care” is defined in section 6550(h)(3) to be “medical care that is required by state or local governmental authority as a condition for school enrollment, including immunizations, physical examinations, and medical examinations conducted in schools for pupils.” On the other hand, if you’re...
by Andy Chen | Jun 8, 2020 | California, Enterprise
Years ago, it was probably fairly difficult for the average person to form a legal entity like a corporation or limited liability company (LLC). Nowadays, however, it’s much easier and can often be done with a few clicks online and a credit card. The result I’ve seen is that entities like corporations and LLCs are much more common now with people who have small business or are otherwise self-employed. Because an entity like a corporation or LLC is its own distinct entity, however, problems can sometimes arise. One of the problems I see by virtue of what I do is when the entity needs to go to court. For example, the entity might need to sue to collect from a customer or client who is refusing to pay their bill. Or, the entity might be sued by someone else for breaching a contract, for instance. If an actual person needed to file a lawsuit or defend against a lawsuit, they can hire a lawyer, but they can also represent themselves in court. If your business is the same as yourself (i.e. a sole proprietorship), you can represent your business also because the two of you are one and the same. However, if you have a legal entity of some kind — for example, a corporation or LLC — that ability goes away. In other words, if you have a legal entity for your business, you can’t represent that entity in California unless you’re also a California-licensed attorney. Phrased another way: legal entities must be represented by attorneys in court in California. In most situations, the cost of hiring an...
by Andy Chen | Jun 2, 2020 | California
Photo: The photo above is the Stanislaus County Recorder’s Office at 1021 I Street, Modesto, CA 95354. This post is the first in a series that I’ll be writing on California Mechanics Liens. I’ve dealt with mechanics liens quite a bit in the course of the last year or so in dealing with my regular cases and figured it would be good for at least a few posts. If you like this topic, please do leave me a comment below. Instead of addressing mechanics liens based on complexity (e.g. start with simple stuff then build in to more complex questions), I’m going to start this series by addressing the situations that I personally encounter the most often — if you’re someone employed in the construction trades (e.g. carpenter, roofer, etc) and you’ve worked on a project and are now having trouble getting paid, what do you do? When faced with a situation like that, the big thing I want to find out about is the Preliminary Notice and that’s the topic of this post. To keep things simple, I’ll describe briefly what a Preliminary Notice is, but I’ll focus mainly on what a Preliminary Notice in California is required to contain from the perspective of someone employed in the construction trades who should have been paid, but has not been. In future posts, I’ll also go over the intricacies of who has to provide a Preliminary Notice, who has to receive one, how it has to served, etc. What is a Preliminary Notice? A bit of background first: The good news is that California law is very friendly towards...
