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Burden of Proof? (CA Evidence Code Section 500)

In this post, I’m going to go over something that might strike some of you as being extremely pedantic. My intent is not to be pedantic simply because I can, but instead, I’m hoping to illustrate a more nuanced point that hopefully will be of help to you. Many people have heard the term “burden of proof”. The term is used widely, including in many statutes such as Section 500 of the California Evidence Code. Section 500 states: “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” In other words, you bear the burden to prove whatever it is you’re asserting, be that a claim, defense, etc. When I was in law school, however, I had a professor who absolutely hated that term because he considered it complete nonsense. Instead, he said, the “burden of proof” is actually two separate independent burdens.┬áThe first is the burden of the party to produce evidence that supports the claim for relief, defense, or whatever else they are asserting. This evidence, obviously, has to meet various criteria. At a minimum, it needs to be relevant to the issues at hand, properly authenticated, and non-privileged. Once it clears those hurdles, then it might still not be admissible because the court you’re in has, for example, exercised it’s discretion to exclude it because it is more unduly prejudicial than it is probative. As an aside, the authority that allows courts in California to do this is Section 352...

Law School Help: Criminal – False Imprisonment

In today’s installment of my “Law School Help” series, I’m going to go over the California crime of False Imprisonment. As with my other posts in this series, my intent is to basically translate terms (e.g. specific criminal offenses) that the average layperson might have heard before into specific code sections that can be googled. If you’re a law school student, hopefully these posts provide you a more real-world or practical perspective of the subjects you’re learning about in the abstract/theoretical environment of your classroom. For completeness, California also has a civil cause of action for False Imprisonment (i.e. where the victim can sue the perpetrator for money). I wrote a post about the California civil cause of action in 2017. You can view that here. New York also has a civil cause of action for False Imprisonment. I wrote about that in 2017 as well. You can view that here. Anyway, that said, the underlying crime of False Imprisonment in California is defined in Section 236 of the California Penal Code. Section 236 is surprisingly short and says: “False imprisonment is the unlawful violation of the personal liberty of another.” Thus when it comes to elements or criteria, the underlying basic or vanilla offense of False Imprisonment involves: Defendant intentionally and unlawfully restraining, detaining, or confining a person, and Defendant’s action caused the victim to stay or go somewhere against their will The possible sentences for False Imprisonment are described in Section 237 of the California Penal Code, which states the following: “(a) False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by...

2020 Update – California Prenuptial Agreement 7-Day Waiting Period (CA Family Code section 1615)

On my Youtube channel, I have some videos in which I go over how prenuptial agreements in California work. In one of those videos, I go over how an unrepresented party to a prenuptial agreement has to have at least 7 calendar days to review the agreement prior to signing the agreement. In addition to the 7 days, the unrepresented person also has to be told to go get legal counsel. Failure to provide this admonition or provide the unrepresented spouse the 7 days means that the prenuptial agreement can be invalidated on that basis alone. The goal, of course, is to not force or coerce any person in to a prenuptial agreement that they would other wise not agree to freely. If you need California legal authority for that, it’s section 1615 of the California Family Code. In the real world, this 7-day waiting period often poses a problem if you have a wedding date set and you’re rushing to get a prenuptial agreement done before that and at least one of the parties to the prenuptial agreement is not represented by an attorney. The purpose of this blog post is to describe at least one major update to Section 1615 of the California Family Code that took place for calendar year 2020. The update is found in section 1615(c)(2) (B) of the California Family Code which states: “For an agreement executed on or after January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and the time the...

Law School Help: California Criminal – Burglary

In today’s post, I’m going to go over the California crime of Burglary. In this series of posts that I’ve, apparently, labeled “Law School Help,” I’m going to try and go over terms (e.g. common criminal offenses) that ordinary people might have heard and provide a basic description of the legal authority (e.g. the particular statute section), the elements involved, and any sentence that the offense in question might carry. In prior posts, I’ve gone over questions like “What is Consideration?” and “What is a Common Carrier?” If you’re a law school student and you’re reading this, hopefully this series of posts provides you more real-world or practical knowledge compared to the more abstract or theoretical concepts you’re learning about in the classroom. In California, the crime of burglary is defined in Section 459 of the Penal Code. Section 459 is a bit long, but it says the following: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or...

California Statute of Limitations – Negligence

For a change of pace, I’m going to do a short post. (I can hear all of you now collectively going “Finally!”) The topic of today’s post is the statute of limitations for a negligence action in California. As a reminder, a statute of limitations is the time period within which a plaintiff has to file their civil suit seeking redress from the defendant. As a general rule of thumb, this proverbial clock starts to run when the last criteria that needs to be met in order to prove the lawsuit occurs. Phrased another way, if you need to prove 5 criteria in order to win your lawsuit, your statute of limitations clock doesn’t start to run until the 5th and final criteria occurs. In California, the negligence statute of limitations is 2 years under Section 335.1 of California’s Code of Civil Procedure. Section 335.1 states “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” An example where this might apply would be a car accident where the plaintiff suffered injuries of some kind to their body. There are many exceptions to this two-year rule, however. For example, if your case involves asbestos exposure of some kind, the statute of limitations could be as short as one year under Section 340.2 of California’s Code of Civil Procedure. If you have a situation involving negligence in California, the best way to know what statute of limitations applies to you is to find a lawyer with whom you can discuss the details of...

Attorney Fee Agreements Not in English

In prior posts, I’ve gone over issues such as the presentation requirement when an attorney and client sign a fee agreement. On my Youtube channel, I’ve also gone over topics such as what a California contingency fee agreement has to have. In this post, I’m going to go over California’s requirements for a fee agreement when the agreement is negotiated in a language other than English. The relevant California statute is going to be section 1632 of the California Civil Code. If you read section 1632, you’ll quickly notice that it is not specific to attorney fee agreements, but discusses more broadly the question of when a written contract needs to be provided in a language that isn’t English. The relevant portion of section 1632 that applies to fee agreements between clients and attorneys is sub-section (b)(6), which provides: “Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into any of the following, shall deliver to the other party to the contract or agreement and prior to the execution thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, that includes a translation of every term and condition in that contract or agreement: (6) A contract or agreement, containing a statement of fees or charges, entered into for the purpose of obtaining legal services, when the person who is engaged in business is currently licensed to practice law pursuant to Chapter 4 (commencing with Section 6000) of Division 3 of the Business...