by Andy Chen | Feb 18, 2017 | California, New York, Statutes... and stuff
Many people are familiar with the term “Statute of Limitations” from having seen someone mention it on television or in a movie. However, seeing it on television or in the movies usually just tells the viewer that Statutes of Limitation exist, but not how to actually use it in a particular situation. The short answer is that a Statute of Limitation is the time period within which a case — civil or criminal — has to be brought against a defendant. If the Statute of Limitations passes without the case(s) being brought, the defendant can claim the lapsed Statute of Limitations as an affirmative defense. In other words, the defendant can say that even if everything alleged in the case is true, there’s no way for the plaintiff or prosecution to win. The longer answer is that in order to use the concept of Statute of Limitations in the real world, you have to know the answer to three questions: what is the statute of limitations that applies to a given situation? when does the statute of limitations — whatever it happens to be — actually start? under what situations — if any — can the statute of limitations be paused so that the plaintiff or prosecution has more time? Shockingly, TV shows and movies don’t answer these questions. Questions 1 and 2 are fairly straightforward to address. Question 3 is more complicated and requires discussing something called Tolling and what needs to happen before Tolling can be done. In this first post on Statutes of Limitation, I’m going to talk about the answers to Question 1 and 2 above...
by Andy Chen | Feb 16, 2017 | California, Statutes... and stuff
Someone who is going through a divorce in California might sometimes wonder whether an annulment is a viable option instead. This blog post goes over the two types of annulment available under California law. I’m going to cite to sections of the California Family Code wherever I can so you can go look up the statute sections yourself, if you’re so inclined. The first type of annulment in California is for a void marriage. This is when the marriage is void or illegal from its inception. In other words, the marriage in question never existed because it was illegal from the start. Two common reasons for a void marriage are (1) incest under California Family Code section 2200 , and (2) certain kinds of bigamy under California Family Code section 2201. There are other reasons why a marriage might be void. If you have doubts as to whether your marriage might be void, please contact an attorney. Only certain types of bigamy will make a marriage void. Under California Family Code section 2201(a)(2), a bigamous marriage is not void, but only voidable (see next paragraph) if the former spouse of one of the parties is (a) generally believed to be deceased, or (b) not known to be alive for the immediately preceding five years. As an example, suppose A and B get married, but split up after a few years. A and B live apart, but neither actually goes through the process to get divorced. A then moves in with C and they want to get married. If B is known to be alive, then the A-C marriage would...
by Andy Chen | Jan 15, 2017 | California, contracts, Law School Help, Statutes... and stuff
Lawyers often toss around the term “consideration” when discussing the existence or lack of a contract. Consideration is one of the criteria that has to be proven in order to show that a contract exists. In California, consideration is defined in Civil Code section 1605 which states: “Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” As you can perhaps tell, consideration is not something that lends itself to a neat or simple definition. Consideration can take many forms. The common idea behind all of these forms, however, is that the purpose of consideration is to show that a party to a contract has voluntarily assumed the obligation imposed on them by the contract. Thought of another way, consideration prevents a person from accidentally falling in to a contract and being obligated to do something they didn’t intend. Numerous other requirements for consideration are imposed by sections 1606 to 1615 (or so) of the California Civil Code as well. In case you’re wondering, the other required elements of a contract are: (1) parties capable of entering in to a contract, (2) the consent of said parties to enter in to the contract, and (3) a lawful goal or purpose to the contract. See California Civil Code section 1550. Depending on the facts of the particular...
by Andy Chen | May 2, 2016 | California, Law, in real life, Statutes... and stuff
In this post, I’m going to discuss something that often arises in a California residential Landlord-Tenant case where the tenant has lost at trial — can the tenant get extra time to move? If you’re a tenant who has lost his eviction case, the general process from the landlord’s side is to (1) get the court to issue a writ of possession, (2) deliver said writ to the county sheriff’s civil division for service, and (3) the sheriff serves the writ. Steps (1) and (2) can take place within one or two business days of the eviction trial. If the landlord is particularly quick, it might be the same day as the trial. (3) usually is what most people recognize as the sheriff coming to the rental property and taping up a sign on the door saying that the tenant has 5 calendar days to move. The timing of step (3) can vary. In my experience, some sheriff civil divisions are not open every day. Others are open only part of a weekday. On top of that, each division may have set schedules for service (e.g. only serving Monday and Wednesdays). Check with the sheriff’s civil division in your case to find out for certain what their schedule is. Let’s assume that 5 calendar days elapses between the time the tenant loses at the eviction trial and the time the sheriff posts a notice on the tenant’s door to move out. The notice specifies another 5 days within which the tenant has to move. What happens if the tenant needs more than these 10 days? The answer is a Stay of Eviction...
by Andy Chen | Apr 19, 2016 | California, Law, in real life, Statutes... and stuff
In this second post on California residential Landlord-Tenant law, I’m going to talk about the techniques some residential landlords go through to force tenants to move. To see my first post, click here. As I explained previously, there is no license or test to become a residential landlord. Many people just put an ad on Craigslist and things generally go fine… until a problem results. In general, for a landlord to get rid of a tenant, the landlord has to evict them through a court process called an Unlawful Detainer (UD) proceeding. A UD is not difficult and is, in many ways, a cookie-cutter or formulaic process. However, like any court process, it takes time and money that some landlords do not want to spend. One technique that sometimes occurs is the landlord resorts to brute force. For example: the landlord hires individuals to forcibly remove the tenant, the landlord changes the locks while the tenant is out and refuses to provide the new key, and/or the landlord turns off utilities in the hope that the tenant will simply move rather than live with no electricity or water. I would imagine a landlord could think these would be simple and cheap alternatives to a court proceeding, but unfortunately, tactics like these are all highly illegal. The California law in question is California Civil Code section 789.3(a) and 789.3(b). Civil code section 789.3(a) provides: A landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly,...
by Andy Chen | Apr 12, 2016 | California, Law, in real life, Statutes... and stuff
The question sometimes arises whether a residential landlord in California can enter the property being rented by a tenant. Many residential landlords in California are individuals who don’t have to go through any licensing or exam before renting their property. They often don’t wonder about questions like this until a particular situation presents itself and they, for instance, need to get in to the property and wonder if they can. As with any landlord-tenant question in California, there are two preliminary questions that you need to ask: First, does the city or county in which the rental property is have any laws or ordinances that address this question. Most cities and counties in California do not have rent control ordinances and laws, but some do and they are all different. The only way to know whether your city or county has a rent control ordinance or law is to look and then, if you find one, to look at what the ordinance or law says. Second, is there a written lease in effect at the time that describes the landlord’s right to enter on to the property? Most residential leases I have seen in California do not, but every lease is different so the only way to know, is to check yours. Assuming then, that your residential lease doesn’t mention the landlord’s right to enter and there are no local laws or ordinances on the topic, the California state statute you’re going to want to look up is California Civil Code section 1954 which says the landlord can enter to: if there is an emergency, to make improvements or...
