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...
by Andy Chen | Mar 29, 2016 | California, Law, in real life, Motion Practice, New York, Statutes... and stuff
One of the big parts of litigating a case is doing Law and Motion practice. In a nutshell, this is the process the parties use to ask the court to make a decision. The process of asking is called “moving the court” for a particular decision or result, hence the term “motion practice.” One kind of motion is called a Motion to Set Aside a judgement or order of some kind, including a default judgment. Under California state law, the governing statute is going to be Code of Civil Procedure section 473(b) which states as follows: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any,...
by Andy Chen | Mar 22, 2016 | Law, in real life
Cities and counties will often pass their own laws in addition to the laws passed by the state and federal governments. The sign above is located near a restaurant in Modesto that I go to an alarmingly often. Under Title 3, Chapter 2, Article 8, section 808 of the Modesto City Municipal Code, rollerskating and skateboarding and, apparently, bicycle riding are all prohibited on certain property. The full text of 3-2.808 reads as follows (links are mine): “It shall be unlawful for any person upon roller skates or riding on or by means of a skateboard, coaster or similar device to go upon any roadway in the City or in any City-owned parking lot or City-owned parking structure or in the City of Modesto Transportation Center or in the City of Modesto Amtrak Station or upon the sidewalk in any business district as defined by Section 235 of the Vehicle Code of the State of California or any property of the Modesto City School District, Sylvan Unified School District or Empire Union School District. Provided, however, the Council may, by resolution, grant approval for the use of roadways, City-owned parking lots, City-owned parking structures, and sidewalks for organized skating events of community-wide interest and importance, and that the Public Works Director, or such persons as may be designated by the Director, may grant approval for use of City park parking lots for organized skating events of community-wide interest and importance. In granting such approval, the Council and the Director or the Director’s designee may impose such conditions, restrictions and requirements as they deem necessary or desirable in order to...
by Andy Chen | Aug 26, 2015 | California, Law, in real life, Statutes... and stuff
I was at my local Dick’s Sporting Goods a few weeks ago and, while perusing the firearms, came across this rather enormous sign. California’s gun laws are extensive. I’ll most likely describe the laws enumerating each specific bullet point in future blog posts, but the requirement that such a sign be displayed at all is in California Penal Code section 26835. Section 26835 states as follows: "A licensee shall post conspicuously within the licensed premises the following warnings in block letters not less than one inch in height: (a) "IF YOU KEEP A LOADED FIREARM WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE OBTAINS IT AND USES IT, RESULTING IN INJURY OR DEATH, OR CARRIES IT TO A PUBLIC PLACE, YOU MAY BE GUILTY OF A MISDEMEANOR OR A FELONY UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER OR LOCKED THE FIREARM WITH A LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY FUNCTIONING." (b) "IF YOU KEEP A PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF BEING CONCEALED UPON THE PERSON, WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE GAINS ACCESS TO THE FIREARM, AND CARRIES IT OFF-PREMISES, YOU MAY BE GUILTY OF A MISDEMEANOR, UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER, OR LOCKED THE FIREARM WITH A LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY FUNCTIONING." (c) "IF YOU KEEP ANY FIREARM WITHIN ANY PREMISES UNDER YOUR CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE GAINS ACCESS TO THE FIREARM, AND CARRIES IT OFF-PREMISES TO A SCHOOL OR SCHOOL-SPONSORED...
by Andy Chen | Aug 10, 2015 | Law, in real life
Many crosswalks in California have signs like these now that, in theory, remind drivers to stop and not run over you. Clearly this sign (at the Target store in Sunnyvale, California) has seen better days at it appears a driver was so attentive that they ran the sign over. Perhaps flashing LEDs embedded in the road would help. The “state law” in question is from the California Vehicle Code, specifically section 21950(a) which states as follows: “The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.” In my experience, though, a lot of pedestrians forget section 29150(b) which states that: “This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run in to the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked...
