by Andy Chen | Mar 20, 2017 | California, Law, in real life, Statutes... and stuff
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...
by Andy Chen | Mar 13, 2017 | California, Criminal law, Law School Help, Law, in real life, Statutes... and stuff
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...
by Andy Chen | Mar 11, 2017 | California, Law, in real life
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...
by Andy Chen | Mar 9, 2017 | California, Law School Help, Law, in real life, 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...
by Andy Chen | Feb 24, 2017 | California, contracts, New York
In a prior blog post, I went over statutes of limitation and specifically discussed the New York and California statutes of limitation for defamation. To continue with that idea — and totally not because I have run out of ideas to blog about — I’m going to go over the statute of limitations for breach of contract. In my experience — which is by no means exhaustive — breaches of contract are very common. Many people have an intuitive sense of when a contract is broken (i.e. someone is supposed to do something and they aren’t) so it is logical to wonder what statute of limitations applies. Knowing what statute of limitation applies is only a small part, though. Actually proving the existence of a clear and enforceable contract can be quite involved. Always consult an attorney regarding your personal and — most likely — unique situation. All of that said, let me talk about California first. California applies different statutes of limitation on contract breaches depending on whether the contract in question is oral or written. For an oral contract, the applicable period is 2 years under California Code of Civil Procedure section 339. For a written contract, the applicable period is 4 years under California Code of Civil Procedure section 337. New York does not distinguish between breaches of oral and written contracts like California does. In New York, contract breaches are subject to a 6 year statute of limitations under New York Civil Practice Law and Rules (NY CPLR) section 213(2), but exceptions do exist. Some situations (see NY CPLR section 213(a)) have a 4 year...
by Andy Chen | Feb 21, 2017 | California, Statutes... and stuff
California is a community property state when it comes to divorces. Community property is a complicated subject, but many people summarize it as the rule that says “during a divorce, each spouse gets half of the stuff.” Given this 50/50 division, a common situation in California divorces is that one spouse (say, Spouse A) feels that he or she is entitled to more than just half of the marital property, sometimes a great deal more than the half that community property dictates. One way in which Spouse A might try to get what he or she feels to be their rightful share is to put the marital property under Spouse A’s name alone. This might be an account (e.g. bank account) that is only in Spouse A’s name or it might be putting just Spouse A’s name on the title to the car or the house. The logical question to wonder then is: Can Spouse A get around community property law by simply putting property under their name alone? The short answer is no. There are many Spouse As that try this tactic and it never works. The longer answer is that this question presents two competing interests. On the one hand is community property which, as I indicated earlier, basically says that all the property acquired during the marriage is split equally upon divorce. See California Family Code section 760. On the other hand is California Evidence Code section 662, which states that the “owner of the legal title to property is presumed to be the other of the full beneficial title.” In other words, whoever is listed as...
