Law School Help: California Criminal – Carjacking

I’m guessing a lot of you know what carjacking is — namely, the stealing of a car from another’s possession. I might be wrong, but I think carjacking started happening in the 1980s or so in California when those wanting to steal a vehicle realized that stealing a parked vehicle with no keys was rather difficult. Stealing a vehicle that had been unlocked and started by the owner was much easier and all the thief had to do was threaten the owner. Anyway, in California, the criminal offense of carjacking is defined in California Penal Code section 215(a) which states: “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” Clearly this is a mouthful, but if you break it down, the basic elements of a carjacking are: the taking by means of force or fear of a motor vehicle that is in the possession of another, including a passenger of the motor vehicle from the person or the immediate presence of that other, against the will of the possessor with the intent to deprive the possessor of their possession of said vehicle Each of these elements could, in theory, be the source of disagreement between the prosecution and the defense. For instance, the prosecution might say the vehicle...

Can a Corporation Represent Itself in California?

Many people nowadays have legal entities like corporations and limited liability companies. With the Internet, forming such entities is much simpler now than it was years ago when a lawyer was required for even the most basic of transactions. If you have formed a legal entity yourself, one situation you might encounter is what to do if your entity gets sued or otherwise finds itself in court. An individual generally has the right to represent themselves in court subject to obvious limitations, such as if the individual is a minor, has dementia, etc. However, a legal entity — such as a corporation or a limited liability company — generally cannot represent itself in court and must be represented by an attorney. There is no California statute that says this, but it is instead the result of many courts in California holding so over the last 40 or so years. The case I always cite to is the 1978 California Supreme Court case of Merco Construction Engineers v. Municipal Court. The cite, for the lawyers in the audience, is: 21 Cal. 3d 725. This rule of “entities must hire an attorney” applies even though your particular corporation or limited liability company is just you. The rule also applies even if the case your entity is involved in is super simple, completely frivolous, etc. California statutes provide for two exceptions to this rule that a legal entity cannot represent itself in court and must hire an attorney: First, a legal entity may be represented by a non-lawyer in a small claims court action. This is under Code of Civil Procedure section...

How Many Officers Does a California Corporation Need?

Nowadays, it is quite common for individuals to form a legal entity (e.g. a corporation) themselves. Years ago, forming a corporation usually required a lawyer, but you can often form one online now with minimal effort and cost. One question that often arises after an individual forms a corporation is who can serve as an officer of said corporation. More often than not, however, the question is actually: Can the same person serve in all the different officer roles that a corporation in California has? The answer to that question can be found in Section 312(a) of the California Corporations Code, which states that a corporation’s officers fall in to four categories: A chairperson or president. In other words, this is the person who is in charge of the corporation, A secretary, A treasurer or chief financial officer, and Other officers as the bylaws may dictate or as the Board of Directors may designate. As to whether the same individual can serve in all officer roles simultaneously, the same person can serve in all the officer roles simultaneously unless the corporation’s bylaws or Articles of Incorporation forbid it. Thus, the same person could, in theory, be the president, secretary, and treasurer at the same time. In practice, however, it is generally a good idea for the secretary and president/chairperson of the corporation to not be the same person. As part of the corporation’s business, the secretary needs to attest to the president/chairperson’s signature on documents and it’s obviously circular to have an individual attest to their own signature....

California Retaliatory Eviction (CA Civil Code section 1942.5)

Retaliatory eviction is one of the things that often arises when the relationship between a landlord and a tenant in California sours. As you can perhaps guess from the name, the landlord is evicting the tenant in retaliation for something the tenant did. As you should hopefully also be able to guess, the word “retaliation” implies a timeline — the landlord must evict the tenant for something they have already done. In other words, the tenant must do something first and then the landlord must evict them in retaliation. A tenant cannot claim the landlord is evicting them out of retaliation when the eviction came first and the tenant’s action came second. (True story: I once had a case where the tenant tried to do this.) The governing statute for residential retaliatory eviction in California is section 1942.5 of the California Civil Code. In this blog post, we’ll go over it. As usual, this post will just be an overview and will – by no means – be an exhaustive description. Please take a look at the full text of Section 1942.5 yourself or consult an attorney in your area regarding your particular situation. If you are in a commercial landlord-tenant situation, retaliatory eviction under Civil Code 1942.5 does not apply to you, but you may have an equivalent against retaliatory eviction under a 1981 California Supreme Court case called Barela v. Superior Court, 30 Cal.3d 244. Section 1942.5 of the California Civil Code basically establishes three categories of activity that could qualify as retaliatory eviction. A lot of stuff can qualify as retaliatory eviction, but not everything. In my experience,...

California Will Drafting – Disinheriting Your Children

Last time, I posted about how to omit, disinherit, or otherwise leave your spouse out of your will. The rule there was that under California Probate Code Section 21610, you can’t disinherit your spouse by simply not mentioning them in your will. California will assume that such an omission was accidental and give your spouse an intestate share anyway. This time, we’re going to talk about disinheriting your children. The rule is very similar to disinheriting your spouse, except this time, we’re talking about California Probate Code section 21620, simply not mentioning your children in your will is not enough to disinherit them. Unless you can prove one of the section 21621 exceptions apply, California will assume you didn’t mention your child by accident and then give them a share equal to what they would have gotten under intestacy. One reason for this is that California recognizes that while people should update their estate planning documents after life-changing events (e.g. getting married, having kids, etc), not everyone does that so every will and trust will always be out-of-date and can’t be read literally. As with omitting your spouse, there are a few ways in which you can actually leave your children out of your will completely. Those ways are enumerated in Section 21621 of the California Probate Code. You left your child out of your will intentionally and that intention is apparent from the will in some way, You left property to the parent of the child instead of leaving the property to the child directly, or You provide for the child in some other way outside of your...

California Will Drafting – Omitting Your Spouse

Previously, I made a post about how to make a will under California law. I also have a video on my Youtube channel about it. One issue that pops up a lot when drafting a will is how to — basically — disinherit someone. This might be done out of spite or might be done intentionally because, for instance, the spouse is independently wealthy or the person making the will has provided for their spouse in some other way already. The problem that arises is that many people who are writing their will think they can disinherit their spouse by simply leaving them out of the will. In other words, by not mentioning their spouse in the will, their spouse will be disinherited. This isn’t the case at all in California and it’s because of California Probate Code section 21610 which provides that the assumption is that omitting your spouse from your will was accidental and that, unless proven otherwise, your spouse will get: Half of the decedent’s community property, Half of the decedent’s quasi-community property, and A share of the decedent’s separate property equal to what the spouse would have received under California’s intestate succession scheme if the decedent had died without a will. This share, however, will be capped at half of the decedent’s separate property. If you do indeed want to leave your spouse nothing for any reason, you should look at section 21611 of the California Probate Code which basically says that the section 21610 presumption will not apply if: The spouse was omitted from the will intentionally and this intention is apparent in the...