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...
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 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 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 | Jan 13, 2017 | Law School Help, Statutes... and stuff
One of the things that makes the law unnecessarily confusing for non-lawyers (and lawyers too, let’s be honest) is specialized terminology. This isn’t unique to the law, of course. Many industries and specialties have their own terms and vernacular that makes perfect sense to those in the field, but leaves everyone else scratching their head. In a small, small, small, small, small effort to remedy that for the law, I’m going to explain in this blog post what the legal term “common carrier” means. This post will be specific to California, which means, as usual, that you have to look it up yourself for other states. The term common carrier appeared for me in law school in my torts class. If you happen to be encountering it in your law school torts class now and have no idea what it means, this post is for you. Regardless of whether your professors are explaining the concept, very few professors actually connect the concept to a specific authority in California like I am about to. In California, “Common Carrier” is defined in Civil Code section 2168 which states: “Every one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” Sections 2169 and onward of the Civil Code also provide other rules and requirements for common carriers. Court cases in California also help define the term Common Carrier. For example, “[A] common carrier within the meaning of Civil Code section 2168 is any entity which holds itself out to the public generally and indifferently to...
