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 | Jan 18, 2017 | Law, in real life, Statutes... and stuff
If you’re like me, you love using the automated check out machine when making purchases at a store. You’re probably not like me in that you don’t notice signs and other postings related to the law, like this one that I saw the other day while shopping at Walmart. I can’t say that I’ve ever bought alcohol at an automated check out machine before, but I apparently couldn’t, even if I wanted to. The law in question here is California Business and Professions Code section 23394.7, which states: “No privileges under an off-sale license shall be exercised by the licensee at any customer-operated checkout stand located on the licensee’s physical premises.” Section 23394.7 originally went in to effect on January 1, 2012, but was challenged in a lawsuit so implementation was delayed until October 18, 2013. For the lawyers in the audience, the case in question is California Grocers Association v. Department of Alcoholic Beverage Control (2013) 219 Cal. App. 4th 1065. I merely present this as an example of law in everyday life. A while ago, I did a similar post involving sales tax on cold versus hot Subway sandwiches in California. I don’t specialize or focus on alcohol-related law (or sandwich law… although that sounds awesome). From what I have read from others, Business and Professions Code section 23394.7 was opposed from the outset by grocery stores with automated check out machines — in the form of the California Grocer’s Association (CGA)– who wanted those machines used to the fullest. Simultaneously, the law was supported from the outset by, among others, unions representing retail clerks who would...
by Andy Chen | Jan 16, 2017 | Law, in real life
One of the common questions I see posted on law question and answer forums for California is some variant of ‘I’ve fired my lawyer and he won’t return my files so that I can go find another lawyer. What can I do?’ I’m surprised by this for two reasons. The first is morals and integrity, namely if a client fired me, I would not withhold their files. Every lawyer — me included — has had a client fire them before. It comes with the territory of being in the profession. Because there is an inevitability to being fired, I don’t see the point of refusing to return the client’s files. It doesn’t solve anything. The second reason I’m surprised, however, is probably more of interest to you if you’re reading this blog post of mine — it violates the rules California has for its lawyers. The rules I’m talking about are the California Rules of Professional Conduct (RPC) and are put out by the State Bar of California. Failure to abide by the RPC subjects a lawyer to discipline by the State Bar. As you can probably gather, being disciplined by the licensing body for your profession is not a good thing. The RPC are fairly short so reading them is not difficult. If you do read them, you’ll find that they cover all types of conduct — from advertising to trust accounts to sexual relations — that lawyers can and can’t engage in. The particular RPC that governs what lawyers have to do if they have been fired by a client is RPC 3-700, Termination of Employment. The...
by Andy Chen | Jul 15, 2016 | Law, in real life, Statutes... and stuff
Driving around as I do, I can’t help but notice an increasing number of abandoned shopping carts lying around my neighborhood. My best guess is that people who don’t drive to stores are taking the shopping carts in order to avoid having to carry their heavy bags to their home, to the bus stop, etc. I find this interesting because California law makes removal of a shopping cart in this way from the premises of the store a misdemeanor. Specifically, it’s California Business and Professions Code sections 22435 and 22435.1 through 22435.8. There are two caveats to this. The first is that the prohibitions on shopping cart removal under Business and Professions Code sections 22435, et seq only apply if a sign like the one pictured above is affixed to the cart informing users of the laws against removal of said cart. (B&P section 22435.1). The second caveat is that, per B&P section 22435.2, you’re only guilty of a misdemeanor if you remove the cart “with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.” The result is that the mere fact you’ve removed the cart is not enough to make you guilty. You have to remove the cart with a specific intent to deprive the owner of possession, either temporarily or permanently. In other words, guilt comes from proving two elements (removal and intent) as opposed to just removal. Whether intent can or cannot be proven depends, like everything in the law it seems, on the circumstances of the case. In the meantime, I try to corral shopping carts I see in...
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 25, 2016 | Law, in real life
In a change of pace from my last few posts about California residential Landlord-Tenant law, I’m going to talk about family law, specifically the question of how does one change their name back to their maiden name after a divorce. The “after a divorce” part is important. If you want to change your name generally (e.g. it’s hard to spell, hard to pronounce, etc.), you can, but the process is different. Changing your name after a divorce is, in my opinion, easier than just changing your name in general. There are two ways to do the “after a divorce” name change. The first is when you ask for the name change as part of the case itself. If you’re the one who filed the case, you’re the Petitioner and you can ask for your name to be changed as part of your petition (see box 11(b) on California Judicial Council form FL-100). If you’re not the party who filed, you’re the Respondent, but you can still ask for your name to be changed as part of your response (see box 11(b) on California Judicial Council form FL-120). If you’ve done either of these, the court can grant your name change back to your maiden name as part of the divorce decree or judgment. The divorce judgment is California Judicial Council form FL-180 and the name change is specifically in box 4(f). If you’ve done your name change as part of your case, what you need to d o to change your name with the California Department of Motor Vehicles, the Social Security Administration, etc is get a certified copy of your...
