by Andy Chen | Oct 29, 2018 | California, Criminal law, Individual
In California, arraignments are generally the first time that a criminal defendant makes their appearance in court. Every arraignment is slightly different because no two cases and no two courts are exactly the same. If you are facing misdemeanor criminal charges in California and want to learn more about what happens at an arraignment, I have video on my Youtube channel about it. Depending on the particular court you’re in, the judge you’re in front of, etc, you may have the option of doing something called a Clerk’s Arraignment instead. It is what it sounds like — you get arraigned in front of a court clerk (i.e. a non-judge who just works for the court) as opposed to an actual judge or court commissioner. Some of you might be going ‘Whoa, what? Is that legal?’ The answer is that it is, but – in my experience at least – it is not common. I would guess that I encounter it less than 10% of the time on misdemeanor cases. All of those are on cases where the defendant has his or her own attorney (i.e. not the public defender). I have never seen a Clerk’s Arraignment done in a case where the defendant is appearing without a lawyer. If you have, leave me a comment down below. There are many reasons why a Clerk’s Arraignment might be done. One is speed. For the vast majority of misdemeanor cases, arraignment is routine and uneventful for an attorney to do. Additionally, misdemeanors are very common so it is not unusual for an attorney to wait in line for 45 or more...
by Andy Chen | Oct 10, 2018 | California
It used to be that if you liked to cook, you had to open a restaurant in order to make money off of your cooking. There’s the food truck route, of course, but soon, there will be another option in California: you can sell food you make in your home kitchen directly to the public. If you’re interested in doing this, the law behind this is actually quite involved. I’ll mention some sections of the California Health and Safety Code below, but the basic idea involves the creation of something California calls a “microenterprise home kitchen operation” (CA Health and Safety Code section 113825). There are other code sections that will specify how a “microenterprise home kitchen operation” will fit in to the existing law that governs food, restaurants, food preparation, etc. And, of course, there are going to be laws that specify how microenterprise home kitchen operations will be regulated by the city or county they’re located in and several sections of the Health and Safety Code (e.g. Section 114367) will be devoted to that. Microenterprise Home Kitchen Operation (MHKO) This will be defined in section 113825 of California’s Health and Safety Code. An MHKO has nine criteria: It doesn’t have more than one full-time employee. Family members and household members don’t count. Food is prepared, cooked, and served on the same day. Food is either (1) consumed onsite, or (2) offsite if the consumer picks the food up or is delivered Food preparation does not involved anything requiring a HACCP plan or the production, sale, or service of raw milk or milk products. HACCP stands for “Hazardous...
by Andy Chen | Oct 2, 2018 | California, Enterprise
Some of you might have heard that California recently (less than 24 hours as of the time I write this) passed a law that requires a certain number of directors on a corporation’s Board of Directors to be female. I’ve already gotten several inquiries about this new law and it’s been less than a day. In this post, I’m going to summarize what I think are the major pieces of the new law. It’s not going to be a comprehensive summary, of course as I cannot go over every possible aspect of any law. As always, I encourage you to do your own research, consult with your own legal counsel, etc. This new law arose as California Senate Bill 826 in the 2017-2018 regular session and does basically three things: It imposes a dual-level requirement for Boards of Directors with respect to female directors, It creates a publication requirement to disclose which companies are and are not in compliance, and It imposes fines for non-compliance. Dual-Level Requirement The news has basically described this new law as a requirement to have a certain number of female directors on a company’s Board of Directors. If you read the actual statute (California Corporations Code section 301.3), you’ll discover that there are actually two requirements, hence why I call it a “Dual-Level Requirement.” The first level is that as of the close of calendar year 2019, every corporation that has its Principal Executive Offices (PEO) in California must have at least one female director on its board. The PEO shall be determined based on what the corporation says in its annual 10-K filing to the...
by Andy Chen | Sep 16, 2018 | California, Criminal law, Individual, Law School Help
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...
by Andy Chen | Sep 13, 2018 | California, Enterprise
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...
by Andy Chen | Sep 11, 2018 | California, Enterprise
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....
