If you are in the military in any way, you’re likely entitled to various legal protections under California law that — at least in theory — are meant to make it easier for you to perform your military service. These laws allow, for instance, may allow you to resume your old health insurance when your active duty service ends. It may allow you to enjoy a reduced interest rate on loans and other debts when you’re on active duty. There are housing-related benefits as well related to rental agreements and mortgages.
In this post, I’m going to describe California’s laws in this area in a very general or high-level way. There are a lot of laws so I can’t go over all of them because if I did, this post would be enormous. As I make follow-on posts over time, however, I will probably hit a lot of these topics anyway. I am going to start this process by describing some common themes or ideas that all of these laws have that hopefully make it so all who are entitled to these benefits actually receive them.
When working on cases in this area of California law, the first thing I ask is what kind of military member am I working with? By that, I mean is this person an active duty service member (e.g. Lance Corporal in the Marines), a member of the California National Guard, or a member of the Naval Reserves who has been called to active duty? As with anything in the law, technicalities and definitions like this can be important. The benefits provided are similar, but are not exactly the same in every instance.
A “reservist” is defined in Section 803(a) of the California Military and Veterans Code as “A member of a reserve component of the Armed Forces of the United States, as defined by Section 101 of Title 10 of the United States Code, who is ordered to active duty pursuant to federal law.” I think this is what most people — including myself — think of when we think of someone in the Army Reserve, Naval Reserves, etc.
However, a “reservist” is also defined under Section 803(a) as “A member of the militia, as defined in Section 120, called or ordered into state military service pursuant to Section 143 or 146 or federal law.” If you look up Section 120 of the California Military and Veterans Code, that defines a “militia” as “The militia of the State shall consist of the National Guard, State Military Reserve and the Naval Militia—which constitute the active militia—and the unorganized militia.” In other words, under California law, the term “reservist” includes members of the National Guard as well because the National Guard is part of the militia.
Or is it?
To make things even more confusing, let’s look at the “called or ordered in to state military service” phrase that the astute among you noticed that I bolded and underlined above. Let’s compare that section — if you want to look it up, it is Section 803(a)(1) of the Military and Veterans Code — to section 400(d)(1) of the Military and Veterans Code which defines a “service member” as:
“A member of the militia, as defined in Section 120, called or ordered into active state or federal service pursuant to Section 143 or 146 or federal law.”
As I said earlier, the technicalities and details matter and this is a great example: Members of the California National Guard who are called to active duty enjoy different benefits depending on whether they have been called to state service or federal service.
To make things even more confusing still, something similar applies to reservists also. Section 400(d)(2) defines a “service member” as:
“A member of an active or reserve component of the Armed Forces who is ordered into active duty pursuant to federal law.”
Section 803(a)(2) defines a “reservist” as:
“A member of a reserve component of the Armed Forces of the United States, as defined by Section 101 of Title 10 of the United States Code, who is ordered to active duty pursuant to federal law.”
In other words, when a reservist is called to active duty, they enjoy the benefits enumerated in Chapter 3 (i.e. Section 800 onwards) of the Military and Veterans Code as well as the benefits enumerated of Chapter 7.5 (i.e. Section 400 onwards).
If that hasn’t thoroughly confused you, let’s begin with an example regarding reservists.
Suppose you are a reservist who has been called to active duty (e.g. National Guard member activated for state duty, Naval Reserve member activated for federal duty, etc). Section 800(a) of the California Military and Veterans Code provides you several benefits related to deferring payments on debts that you would otherwise have to pay. Section 800 lists these out as:
“(1) An obligation secured by a mortgage or deed of trust.
(2) Credit card, as defined in Section 1747.02 of the Civil Code.
(3) Retail installment contract, as defined in Section 1802.6 of the Civil Code.
(4) Retail installment account, installment account, or revolving account, as defined in Section 1802.7 of the Civil Code.
(5) Up to two vehicle loans. For purposes of this chapter, “vehicle” means a vehicle as defined in Section 670 of the Vehicle Code.
(6) A payment of property tax or any special assessment of in-lieu property tax imposed on real property that is assessed on residential property owned by the reservist and used as that reservist’s primary place of residence on the date the reservist was ordered to active duty.
(7) An obligation owed to a utility company.
(8) A student loan.”
These benefits are not automatic, however. Sections 800(b) to 800(f) of the California Military and Veterans Code lists out a variety of details about these debt deferments, including the procedure the reservist must follow to invoke the benefit as well as how long the deferment lasts. This leads to our first theme.
Theme #1 – Shifting the Burden off the Military Member
A significant detail about these protections is the burden involved in the event the benefit is not invoked properly. Section 813 of the California Military and Veterans Code specifies that if a reservist called to active duty tries to invoke these deferment benefits, but does so incorrectly in some way (e.g. filled out the wrong paperwork, the submitted paperwork was incomplete, etc), the burden is not on the reservist to correct this error. The person or entity who receives the request from the reservist must notify the reservist of the error(s) within 30 days and provide a means for the reservist to correct the error. Section 813(b) provides that if the person or entity receiving the request fails to do this, then the reservist automatically receives the benefit requested.
This theme of assuming the requestor is entitled to the benefit and putting the burden on the other party to disprove entitlement occurs when discussing benefits for active duty service members also. For instance, benefits for reservists under California law are covered around Section 800 or so of the California Military and Veterans Code. Section 813 is, obviously, “around” Section 800. Benefits for active duty service members (e.g. a Marine Lance Corporal) under California Law are covered around Section 400 or so of the California Military and Veterans Code. Section 409.15 is identical to Section 813 and provides the same benefits to active duty service members as Section 813 provides to reservists. The end goal is to remove obstacles that would stand in the way of a member of the military from enjoying the benefit to which they are entitled.
Theme #2 – Ease of Self-Help Enforcement
Military service of any kind in the United States is voluntary. One consequence of this is that a large segment of the civilian population — including civilian lawyers — are not familiar with the specific laws that pertain to members of the military. In my experience, this is genuine ignorance (e.g. the person or business just doesn’t know what the law is) most of the time. When told what the law actually requires, the person or business gladly follows it although the level of convincing required can vary wildly. Sometimes, unfortunately, the person or business doesn’t care what the law requires and the military member doesn’t get the benefit (e.g. more time to pay their debts) they are entitled to.
Assuming there is some state agency in California that enforces laws like this, a military member who is denied a benefit they are entitled to could always file a complaint or report of some kind. Personally, I do not place much faith in filing complaints or reports like this as the investigation and resolution process can be slow and cumbersome. More often than not, the result is either disappointing or underwhelming. The option that I generally prefer — and I fully admit it is easy for me as a lawyer to say this — is to file my own lawsuit if it is at all possible. Fortunately, in the context of military members being denied benefits, it is possible to file such a lawsuit.
The California Military and Veterans Code, however, actually goes a step further. It (1) waives the regular $435 initial fee required to file a civil lawsuit, (2) waives any other court costs (e.g. fee to file a motion) that a civil lawsuit might otherwise require, and (3) provides for reasonable attorney’s fees. Not having money to hire a lawyer or file a lawsuit to enforce their rights under California law is, at least in theory, not an impediment to any member of the military seeking to do so.
If you’re a reservist, the applicable law is in Section 812 of the California Military and Veterans Code which provides:
“(a) A person violating any provision of this chapter shall be liable for actual damages, reasonable attorney’s fees, and costs incurred by the service member or other person entitled to the benefits and protections of this chapter.
(b) A service member or other person seeking to enforce rights pursuant to this chapter shall not be required to pay a filing fee or court costs.”
If you’re an active duty service member or otherwise serving in federal duty, the applicable state law is a bit more convoluted. Section 409.14 of the California Military and Veterans Code states that a military member seeking to sue to enforce their rights is not required to pay a filing fee or court costs. There is no blanket provision like Section 812(a) that says that there is a uniform entitlement to reasonable attorney’s fees. However, various code sections (e.g. Section 401, 402, 405, etc.) in Chapter 7.5 of the California Military and Veterans Code provide their own entitlement to reasonable attorney’s fees. The bad news, of course, is that not every section in Chapter 7.5 provides this entitlement. If you happen to be suing under a section that does not provide for attorney’s fees, you might have more difficulty finding a lawyer than if you sued under a section that does provide for attorney’s fees.
The wording of Section 812(b) that I posted above leads in to the third theme I’m going to cover which is…
Theme #3 – Spouses and Other Dependents May Have Benefits Also
The benefits provided for military members under California law do not necessarily cover just the member himself or herself. For once, the law embodies some semblance of common sense and realizes that when, for example, a reservist or member of the National Guard go on active duty, their dependents (e.g. spouse, children, etc) are either left vulnerable or are the only ones who can invoke these laws on behalf of their family as the military member might, for instance, be stationed overseas and not available by telephone. To illustrate this, section 812(b) above, for example, states that “A service member or other person seeking to enforce rights…”
There are some benefits under California law that inherently flow to the military member’s dependents already. Any benefit related to housing for the military member’s dependents (e.g. eviction protections under Section 406(a) of the Military and Veterans Code), for instance, would be in this category. For other benefits, however, it is not necessarily clear that the military member’s dependents should also be covered. In those situations, the Military and Veterans Code makes that more explicit.
For reservists, the applicable law would be Section 811(a) of the Military and Veterans Code which provides:
“(a) The spouse or legal dependent, or both, of a reservist who is called to active duty, shall be entitled to the benefits accorded to a reservist under this chapter, provided that the reservist is eligible for the benefits.”
For federalized National Guard or active duty service members, the applicable law would be in Section 409.5 of the Military and Veterans Code which states:
“Dependents of a service member shall be entitled to the benefits accorded to service members under Sections 405 to 409.4, inclusive, upon application to a court therefor, unless in the opinion of the court the ability of the dependents to comply with the terms of the obligation, contract, lease, or bailment has not been materially impaired by reason of the military service of the person upon whom the applicants are dependent.”
Both of these sections also make it clear that there are limits on what benefits transfer from the military member to their family. For example, for reservists, Section 811(a) makes it clear that the reservist must first be eligible for the benefit before he or she can transfer it to their spouse or dependent. Section 409.5 makes it clear that not all code sections transfer to the military member’s dependents. It is only the benefits provided for under Sections 405 to 409.4 that transfer.
Section 409.5 also leads me in to my last theme…
Theme #4 – Courts Have Discretion
The latter part of Section 409.5 that I quoted above states that the benefit may not transfer to the dependent of the service member if a court (i.e. a Superior Court in California) determines that the dependent’s ability to comply with the obligation, contract, lease, etc has not been materially impaired by the service member being called to military service. In other words, if a court determines that the dependent doesn’t need the benefit, the benefit will not transfer to the dependent.
Giving courts discretion like this to determine need repeats a great deal when it comes to the rules for National Guard members and active duty service members. For instance, this discretion exists for litigation stays under Section 403 of the Military and Veterans Code. It occurs again for rescission of contracts under Section 407, mortgages and deeds of trust under Section 408, and life insurance under Section 409.1.
Hopefully all of this made sense. As always, this post is not meant to be a comprehensive or exhaustive treatment on what benefits military members — be they National Guard, reservist, etc — and their dependents have under California law. If you have a situation involving a military member who has been sent to active duty, please do find a lawyer in your area with whom you can discuss the intricacies of your case.
Latest posts by Andy Chen (see all)
- California Right to Counsel in Criminal Cases (CA Penal Code section 19.6) - August 12, 2020
- New York Abuse of Process - August 11, 2020
- New York Statute of Limitations – Wrongful Death - August 9, 2020