Free Legal Information

Ask The County Law Librarian - Trademark vs. Trade name

2013-05-23T23:24:44Z

Q. Dear Law Librarian,

I am starting a new business. I hired a graphic artist and now have a really awesome logo. I have gotten my business license and registered as an LLC with the Secretary of State. How can I protect my logo? What’s the difference between a trade name and a trademark?

Dana

A. You are right this is a confusing area of the law especially for new businesses.

Trade Names
Trade names are just the name of the business entity used in identifying a business and generally used by the company for billing, taxes, banking, or other identification purposes.

Trademarks
Trademarks are marks used in connection with goods or services so that consumers recognize the marks as identifying a source of goods or services like a logo, for example the Nike swoosh. For trademark rights a mark must be affixed to the goods or product packaging.
The confusion can arise when trade names are used as trademarks, for example, Coca-Cola. If you are using your company’s trade name as a trademark registration of the business with the Secretary of State will not provide you trademark registration rights like you will have if you obtain a United States trademark registration.

A federal trademark registration application goes through an examination process to determine if there are conflicting trademark registrations or to determine if the mark is merely “descriptive” of the goods or services. The examination process can provide valuable information from the United States Patent and Trademark Office regarding potential weaknesses with your mark. Once you obtain a U.S. trademark registration, you have additional rights and increased your ability to protect them.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian: Serving Divorce Papers on Incarcerated Spouse

2013-05-17T16:17:38Z

Q. I filed divorce papers months ago. We don’t have kids. When I served my husband, I found out he doesn’t live at his address any more. It turns out he’s now in jail. I’m not sure what to do next and I don’t have copies of my paperwork any more. How do I finish up my divorce? Anne

A. Dear Anne,

Unfortunately it sounds like you still have a lot of work to do to get the divorce done. Before you can really get started, you will need to get your husband served. And before you can do that, you will need copies of your paperwork.

You can get copies of all the paperwork you have filed by visiting the courthouse where you filed them. In Sacramento, for family law cases, that is the William R. Ridgeway Family Relations Courthouse (3341 Power Inn Road). You will need to serve him with:

A copy of ALL the papers you filed with the court (except for any fee waiver papers you may have filed — these are confidential).
A blank Response — Marriage (Form FL-120)
If you had kids, you would also need to serve a blank Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Form FL-105/GC-120).
Declaration of Disclosure (Form FL-140) – you must serve this within 60 days, so if you can, it will save time to serve it now.

Luckily, if he’s incarcerated in California, he should be relatively easy to find and serve. If he is in a county jail, call the county sheriff to find the phone number and address. If he is in state prison, you can find him using the California Department of Corrections and Rehabilitation Inmate Locator. If he’s in federal prison, use the Federal Bureau of Prison's Inmate Locator database.

Once you know where he is located, call the facility and ask who on their staff is assigned to serve the documents on prisoners. Send the following to that person:

two copies of all documents
the Proof of Service form
a self-addressed stamped envelope
a cover letter asking that your husband be personally served and that the “Proof of Service” be completed and sent back to you.

If you have a hearing date (unlikely this early in the case), tell them the date, department, and time of the hearing.

Once they serve your husband, they will return the signed Proof of Service in the self-addressed stamped envelope, and you can file it in court.

After that, your next step depends on what your husband does. Once he’s served, he has 30 days to file a written response. If he does not, you can ask the court for a default judgment. If he does, the process is a bit different.

You can find out more by using the excellent California Courts Self-Help site’s divorce section. It has step-by-step instructions for each phase of the case, and links to the forms you will need. You may also be interested in the self-help book How to Do Your Own Divorce in California, which has instructions, samples, and related information about the process.

Best of luck!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Motion to Compel Responses to Interrogatories

2013-05-09T21:48:35Z

Q. I am the plaintiff in a motor vehicle personal injury case in Sacramento Superior Court. I went to your wonderful Civil Self-Help Center, which helped me get started with my complaint, and I want to thank you for offering that service! I also attended the Discovery Class on a Thursday, where the staff attorney explained all about the discovery process, and a Discovery Lab the next Thursday, where, again with the help of the staff attorney, I drafted some Interrogatories, and served them on the defendant. The problem now is she won’t answer them. What do I do?

Georgette

A. Thank you very much for your kind words about the Civil Self-Help Center, Georgette! For those of you that don’t know, the Sacramento County Public Law Library’s Civil Self-Help Center (CSHC) is intended to assist unrepresented persons who have chosen to pursue or defend a civil lawsuit in the Sacramento Superior Court. The CSHC provides workshops and individual assistance with a variety of civil legal issues. To receive a one-on-one appointment, you must be present in the Law Library at 8:30 a.m., Monday through Friday, to be entered into a random drawing to determine the order in which we evaluate your case. If an appointment is appropriate, it will be made for later in that day.

Back to your problem, Georgette--if an opposing party fails to respond to your Form or Special Interrogatories, or a Request for Production, you may file a “Motion to Compel” a response. Before filing your motion, however, the California Code of Civil Procedure (CCP) § 2016.040 requires you to try and “meet and confer” with the opposing counsel or self-represented party. This typically means sending a letter that informs the opposing counsel or self-represented party that the deadline to respond has passed, and providing him or her a reasonable time to respond, after which you would file a motion to compel responses. A reasonable time could be two weeks, or longer if the interrogatories or request for production is or are particularly complicated. The “meet and confer” requirement is your opportunity to demonstrate to the court that you are making a “reasonable and good faith attempt at an informal resolution.” CCP § 2016.040.

Since there are no pre-printed Judicial Council forms for motions to compel responses, you must draft them yourself. Motions must be typed on 28-line pleading paper and follow a specific format. Luckily, we have a Step-by-Step Guide on our website with a down-loadable template of the motion that complies with all of the court’s formatting rules!

The first step is to select the date of the hearing on your motion. You can select whatever date is convenient for you as long as it meets two very important statutory requirements: the filing deadline and the service deadline. Your Motion to Compel Responses must be filed with the court at least sixteen court days before the hearing. CCP § 1005. Court days are Monday through Friday, excluding court holidays.

Prior to filing the motion with the court, all other attorneys or self-represented parties must be served with a copy of the motion. This means that someone over the age of 18 who is not a party in the case must either personally deliver or mail (by first class) the attorney for the party or the self-represented party a copy of the motion and related documents.

If the motion is personally served, the service must be at least sixteen court days prior to the date of the motion, the same as the minimum filing deadline. If the motion is served by first-class mail additional time is added, depending on where the mail originates and where it is sent. CCP §1005. If the documents are mailed from California to California, five calendar days are added after the sixteen court days. Calendar days include weekends and holidays, but if the final day lands on a weekend or holiday, it is rolled over to the next court day. Luckily, our Step-by-Step Guide includes a calendar and detailed instructions on how to calculate court and calendar days to meet the filing and service deadlines.

At this time there is a $60 filing fee for filing a motion, unless your fees were waived. Current fees are available on the Sacramento County Superior Court’s website.

If opposing counsel or self-represented party opposes your motion, he or she may serve and file an opposition at least nine court days prior to your motion date. No fee is required to file an opposition. You may choose to serve and file a reply to the opposition at least five court days prior to the motion. No fee is required to file a reply.

If you still need help even after reading the Step-by-Step Guide, Georgette, please feel free to come to the Law Library at 8:25 a.m. for the lottery for CSHC appointments. We’d be happy to help you!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Parking a Commercial Vehicle

2013-05-02T22:04:16Z

Q. I am self-employed and use a cargo van for my business. The van is painted all white and used only by me. Would my van be considered a "commercial vehicle" and am I allowed to legally park in Sacramento County on the street of my house (residential parking)? Thanks for your time!

-Deborah

A. Since this is a two-part question, let’s start with the first order of business: determining if your van is considered a commercial vehicle. First, check your vehicle’s registration to see whether it’s registered as ‘automobile’ or ‘commercial.’ Depending on the make, model, and features of your van, the DMV may consider it ‘commercial’ regardless of whether you’re using it as a passenger car or a business car. If it’s registered as ‘automobile’ then it’s your choice whether to register it as a ‘commercial’ (a designation that comes with special plates, additional fees, and additional parking options). Because this is a law librarian column and not that of someone authorized to interpret the law, I’ll provide you with California’s definitions of a commercial vehicle and let you decide if your cargo van falls into this category.

According to Section 260(a) of the California Vehicle Code, “a ‘commercial vehicle’ is a motor vehicle of a type required to be registered under this code used or maintained for the transportation of persons for hire, compensation, or profit or designed, used, or maintained primarily for the transportation of property.”

Section 260 of the Vehicle Code also includes a few other subsections that further refine the definition: "(b) Passenger vehicles and house cars that are not used for the transportation of persons for hire, compensation, or profit are not commercial vehicles. This subdivision shall not apply to Chapter 4(commencing with Section 6700) of Division 3; (c) Any vanpool vehicle is not a commercial vehicle; (d) The definition of a commercial vehicle in this section does not apply to Chapter 7 (commencing with Section 15200) of Division 6." You can read the code online at http://www.leginfo.ca.gov/calaw.html

Consulting another source, the California Commercial Drivers' Handbook, we find that a commercial motor vehicle is “a motor vehicle or combination of vehicles designed or used for either the transportation of persons for compensation or property and:

•Has a gross vehicle weight rating (GVWR) of 26,001 pounds or more.
•Tows any vehicle with a GVWR of 10,001 pounds or more.
•Tows more than one vehicle or a trailer bus.
•Has three or more axles (excludes three axle vehicles weighing 6,000 pounds or less gross).
•Is any vehicle (bus, farm labor vehicle, general public paratransit vehicle, etc.) designed, used, or maintained to carry more than 10 passengers including the driver, for hire or profit, or is used by any nonprofit organization or group.
•Transports hazardous materials requiring placarding.*
•Transports hazardous wastes (Health and Safety Code §§25115 and 25117).*

Once you decide which category- automobile or commercial- best describes your cargo van, we can then look at Sacramento’s County and City Codes to determine whether residential parking is legal for you, based on your van’s official designation, size, and weight. The Sacramento County Code’s Title 10 governs Vehicles and Traffic, so it seems like the best place to start our research. Narrowing it down even further, to Chapter 10.24 Parking Regulations, and Chapter 10.30: Preferential Residential Permit Parking Program, you can find all the ordinances regulating parking in the county. You’ll want to read these chapters carefully to determine what’s OK for your situation.

Depending on where you live within Sacramento County, you may need to also consult the City Code, particularly Chapter 10.24: Size, Weight, and Load Restrictions; Chapter 10.36: Stopping, Standing, and Parking; and Chapter 10.48: Residential Permit Parking Program. You will especially want to study Section 10.36.120: Parking Commercial Vehicles in Residential District, which prohibits the parking of commercial vehicles that weigh more than 10,000 pounds (manufacturer’s gross vehicle weight) in certain residential areas.
If you’re still in doubt, we’d recommend contacting the DMV for automobile/commercial questions and Sacramento County Code Enforcement for local parking regulation inquiries.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian: Vehicle Sales Tax Exemption for Siblings

2013-04-25T19:55:12Z

Q-
On Saturday I got a bill in the mail from the State Board of Equalization saying I owed 1400.00 in sales tax and late fees from when I bought my brothers truck last year. I thought as brothers, we were exempt from the tax. Do I owe the money now??

Adam

A-
Thanks for your question. Your answer depends on how old you and your brother were at the time of the transaction. According to the California Vehicle Code §6285, you are not required to pay use tax on the purchase of a vehicle or vessel if it is considered a family transfer. A family transfer is from a parent, grandparent, grandchild, child, spouse, domestic partner, or siblings. However, both siblings need to be minors at the time of the transaction. If these family transfers do not apply, then the tax must be paid. If you were minors at the time of the transaction you should have completed a DMV Statement of Facts attesting to the exemption. For more information on tax for vehicles and vessels, see the California State Board of Equalization pamphlet on the topic.

According to the Board of Equalization website, if you disagree with a decision of the staff of the Board of Equalization (BOE) regarding your liability for taxes or fees, you can contest that decision by filing a timely appeal. While the majority of appeals are resolved after discussion with BOE staff, some may proceed through a succession of steps to a hearing before the elected Members of the Board. For more information on the appeals procedure, check out Publication 17 available from the Board of Equalization.

If I have delivered bad news, and you determine you in fact owe the tax, the Board of Equalization offers flexible payment options if you qualify for an installment agreement where payments can be made in weekly, bi-weekly, monthly, or twice monthly installments. If you decide to pay in installments, it is required that payments be made through Auto Pay. Keep in mind interest and fees will continue to accrue until the debt is paid off in full.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Trees and Solar Panels

2013-04-18T17:14:37Z

Q: My neighbor has been complaining constantly to be about my trees blocking his solar panels. I just received a formal letter from him, saying he’s going to sue me if I don’t cut my trees so they don’t block his solar panels. My trees do not hang over the fence or in any way cross onto his property, so can he really force me to cut them? And can he really sue me?
Thanks, Gavin

A:
It really comes down to one question: what came first, your trees or the solar panels?

In 1978, California passed the Solar Shade Control Act (Public Resources Code 25980-25986). California is one of the only states in the country with a law specifically governing this topic. The law was intended to encourage the planting of trees and shrubs to create shade and moderate temperature, and to support the use of alternative energy devices such as solar energy collectors.

The Solar Shade Control Act applies only to fixed solar collection devices installed on the roof of a building, or on the ground if rooftop installation is impossible. If installed on the ground, very specific height and set-back restrictions apply. Improperly installed solar devices are not protected by this law.

Under this law, property owners are prohibited from allowing their trees or shrubs to shade more than 10% of a neighbor’s solar energy system between the hours of 10am and 2pm. Any tree or shrub planted before the installation of the solar collector is exempt. If a pre-existing tree dies, its replacement is also exempt, even if the replacement is planted after the solar collector’s installation. The law also exempts trees and shrubs planted on timberland or commercial agricultural land.

The state law also allows local governments to exempt themselves from the Solar Shade Control Act by way of a local ordinance. These exemptions apply only to trees and shrubs planted and maintained by the local government, not to privately owned trees. Sacramento County has exempted all unincorporated parts of the county from this law. Many local cities, including Sacramento, Rancho Cordova, and Citrus Heights have also exempted themselves from the law. Others, such as Davis, have exempted themselves from the state law, and instead adopted a local ordinance on the topic.

Under Public Resources Code section 25983, a tree owner who fails to remove or alter a tree or shrub after receiving a written request from the owner of the affected solar collector is committing a private nuisance, as defined in California Civil Code section 3481. The solar collector’s owner may pursue a civil suit against the tree owner for abatement of the nuisance.

If you’d like more information about this law, including a detailed explanation of the exceptions, related case law, and questions to ask yourself when determining if there’s been a violation of the California Solar Shade Control Act, consider reading this excellent article from the Journal of Sustainable Real Estate, ‘‘Hey, Your Tree I s Shading My Solar Panels”: California’s Solar Shade Control Act.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Pet Theft

2013-04-11T20:34:37Z

Q. Hi Law Librarian,

I was taking my purebred Akita puppy, Jett, for a walk and I tied her to a parking sign for 2 minutes while I ducked into a bodega to get us some water; when I came out she was gone. Stolen! I called the police, animal control, posted signs, and talked to neighbors and so far nothing. Is this a crime?

Michelle

A. Hi Michelle,

Pet theft remains a terrible reality across the country. Often underlying these crimes are dogfighters seeking bait animals and dealers acquiring animals to sell to research laboratories or breeding operations. Less organized motivations include kidnap and ransom attempts even animal hording.

Yes it is a crime:

CA Penal Code 487e.
Every person who feloniously steals, takes, or carries away a
dog of another which is of a value exceeding nine hundred fifty
dollars ($950) is guilty of grand theft.

CA Penal Code 487f.
Every person who feloniously steals, takes, or carries away a
dog of another which is of a value not exceeding nine hundred fifty
dollars ($950) is guilty of petty theft.

What Can We Do To Prevent Pet Theft
Animals that are consistently left unmonitored are of course more vulnerable to pet theft but all unattended animals are potentially at risk.

Be familiar with your neighborhood and its animals. Where dog walkers and pet sitters are involved introduce them to your neighbors.

Keep clear and current documentation connecting you with your animal(s) – this could include adoption papers, veterinary records, and identifying photographs.

Keep contact information on animal collars and tags updated, using phone numbers and/or email addresses that are legible and reliable. Have your animal(s) microchipped.

Michelle I hope you are reunited with Jett very soon!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Ending Same-sex Marriage and Domestic Partnership

2013-04-04T18:45:51Z

Q. My wife and I became registered domestic partners in 2005. When the California court made same-sex marriage legal in 2008, we got married, too. We are now getting a divorce. Do we need to file two different divorces or can we do it all in one case? Do we even need to officially get divorced since Prop 8 did away with same-sex marriage?

A. First of all, you do need to officially get a divorce to end your same-sex marriage.

Same-sex marriage became legal in California in June, 2008, after the California Supreme Court ruled that restricting marriage to heterosexual relationships was unconstitutional. (In re Marriage Cases (2008) 43 Cal.4th 757). In November, 2008, the voters passed Proposition 8, a constitutional amendment outlawing same-sex marriage.

However, the California Supreme Court ruled in 2009 that same-sex marriages during the five-month window in 2008 remain valid (Strauss v. Horton (2009) 46 Cal.4th 364), so you really are married.

As a result, you will need to formally end both the marriage and the domestic partnership. Luckily, you should be able to end both in the same case.

Use form FL-103 (Petition - Domestic Partnership/Marriage) instead of FL-100 (Petition-Marriage) and check the boxes for both “Domestic Partnership” and “Marriage.” The form asks questions about both the marriage and the domestic partnership; be sure to answer all of the questions. If one spouse files a response, be sure to use FL-123 (Response-Domestic Partnership/Marriage) instead of FL-120 (Response-Marriage). All the other forms should be the same as a standard divorce case.

The only thing that might make a difference is if you have not been living in California. Domestic partners who registered in California can divorce here even if they no longer live in the state, but married couples have to meet residency requirements –six months in California, and three months in the county where the divorce is filed.

If neither spouse meets those requirements, you can start the marriage portion of the case as a legal separation (which does not have the same residency requirements) then change it to a divorce once one spouse meets the requirements. That would be a way to start the case right away and speed up your final judgment of dissolution.

Ask the County Law Librarian - Must Father Still be Served When Name Not on Birth Certificate & No One Knows Where He Is?

2013-03-29T01:58:48Z

Q. I would like to change my daughter’s middle name. She is two months old. I am the only listed parent on her birth certificate and there is no paternity on file anywhere. How do I change her middle name without the other parent’s consent or having to be served, since his whereabouts are unknown and there is no established parentage?

Julie

A. Unfortunately, in order to change your daughter’s middle name you will have to serve her father, whether or not parentage has been established. Two parents’ signatures must appear on the paperwork to change a minor’s name. If you cannot serve your daughter’s father because you cannot find him, you must submit a declaration to the court, detailing all attempts made to locate him.

Do not despair, however! A sample declaration is included in our Step-by-Step Guide on “How to Change Your Name,” available for free on our website, at http://www.saclaw.org/pages/name-change.aspx. This Guide includes sample forms and instructions for preparing, copying, assembling, and serving the forms involved in a civil name change. It also includes a list of newspapers of general circulation, annotated with contact and fee information, to help you choose a newspaper in which to publish your court-stamped Order to Show Cause for Change of Name for four consecutive weeks. This Step-by-Step Guide also includes sample forms and instructions for requesting a waiver of the currently $435 filing fee.

For tips on locating the absent parent, see our "Finding People & Businesses" guide, available on our website at http://www.saclaw.org/pages/finding-people.aspx.

If you need further assistance completing the papers, the Sacramento County Public Law Library’s Civil Self Help Center holds a Name Change Workshop every Monday from 1:30 p.m. - 3:30 p.m. A video of that workshop is available on our website at http://www.saclaw.org/pages/selfhelp_video.aspx. Both the live workshop and the video workshop are free of charge.

Good luck to both you and your daughter, Julie!

Ask the County Law Librarian - Private Security Guards

2013-03-21T22:43:43Z

Q. I wonder if you could discuss the authority of private security guards or perhaps just give me links to applicable code sections. I realize they can make a citizen’s arrest just like anyone else, but do they have additional powers? And, of course, if they attempt to detain a person, what is their authority in that event?

-Jim

A. The topic of private security guards is a timely one, because it seems like most stores I visit nowadays employ a security guard, if not several. An interesting fact: in California, security guards outnumber peace officers 4 to 1. Given that it’s a growing industry and one that permeates our everyday lives, it is certainly useful to learn more about the profession and its requirements: licensing and registration, training, and, as you mention, the security guard’s role and responsibilities in the scope of his or her employment.

In California, the Bureau of Security and Investigative Services (BSIS), a division of the Department of Consumer Affairs, has jurisdiction over the private security industry. The basic requirements to register and be licensed as a security guard with the BSIS are listed on the bureau’s Security Guard Fact Sheet, which also gives information on the necessary permits needed for security guards to carry batons, firearms, or tear gas; each type of weapon requires its own separate training and other requirements such as a criminal background check and U.S. citizenship. A valid security guard registration alone does not automatically entitle a security guard to carry any of these weapons.

Like all other citizens, security guards have the power to make a private person (citizen’s) arrest, as authorized by California Penal Code Sections 837-849; mandatory 8-hour training on Power to Arrest is required for all applicants seeking registration as a security guard. You can read the Bureau’s Power to Arrest Training Manual on its website, but here are some excerpts that may answer your question on a security guard’s authority:

• A security guard is NOT a peace officer. This means that a security guard is not obligated to make a citizen’s arrest.

• A security guard’s primary responsibility should be to protect the property or persons he or she is assigned to protect. In that role, he or she is an agent of the property owner and can question people on the owner’s property and may prevent someone from entering private property by standing in his way.

• The main role of a security guard should be PREVENTION.

• If prevention is not possible, the role of a security guard should be to OBSERVE and REPORT.

• A security guard should never touch a suspect except when they are protecting a citizen, protecting their employer’s property, in self-defense, or when necessary to use reasonable force in effecting an arrest. What’s reasonable force? Reasonable force in an arrest situation is the degree of force reasonably needed to detain an individual and to protect oneself. (People v. Garcia, 274 Cal. App. 2d 100 (Cal. App. 1st Dist. 1969)). To read the case opinion, go to http://www.courts.ca.gov/opinions.htms.

The BCIS has provided a wealth of information on the licensing and training requirements for security guards, proprietary private security officers, and many other security-related positions. If you’d like more information, you can read the entire Power to Arrest Training Manual, the 19-page Security Guard Guide, and the authorizing statutes in the California Business and Professions Code Sections 7580-7588.5, containing the Private Security Services Act. Other relevant California code sections are referenced in the literature, such as the laws governing the possession and registration of firearms. You can find those code sections and more at www.leginfo.ca.gov/calaw.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.or g. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Late Fees for Animal License in Sacramento County

2013-03-14T20:18:12Z

Q-
County of Sacramento animal care charged me a late fee for paying our pet license late. Nowhere on the initial bill did it address a late fee if we missed the due date. Can the county charge without notice?

Stephanie

A-
Thanks for your question. Looking at a copy of the current Animal License Application available on the Sacramento Animal Care and Regulation website, it lists the current fees for Sacramento County residents as $15.00 a year for an altered animal and $150.00 a year for a non-altered animal. The license application also provides notice of a late fee of $100.00. The late fee seems pretty steep and is a bit higher than other neighboring counties, so Sacramento must be using a higher late fee as a deterrent to late registration. By applying and obtaining the license, you agreed to pay all applicable fees, including the late fee even if it does seem exorbitant.

The license itself also references Sacramento County Code section 8.24.030 which lists the local laws regarding fees. In particular, 8.24.030(e) states “A dog or cat license fee shall become delinquent the day after it becomes due and payable, and upon delinquency, a monetary penalty as established in accordance with Section 8.24.060 of this chapter shall be added to the regular fee. An unpaid penalty shall be added to the succeeding year’s license fee.”

Looking at the local law regarding the monetary penalty, Sacramento County Code section 8.24.060 states the “first violation is a penalty of one hundred dollars ($100.00) for each animal. If the owner complies with the section within fourteen (14) days after receiving notice of said violation and presents proof of compliance, the penalty shall be waived. An additional one hundred dollar ($100.00) penalty shall apply for every thirty (30) day period of a continuing violation, up to a maximum penalty per offense of five hundred dollars ($500.00).” Using those time frames the late fee can add up very quickly, so next year be sure to make your payment in on time.

For those of you who have your pets licensed through the City of Sacramento, more information about the process of licensing and micro chipping your pets and fee information can be found on the City of Sacramento Animal Care Services website. The late fee for a license renewal is $10.00 if paid within 30 days after the due date, $20.00 if paid more than 30 days after the due date, or $100.00 if paid more than 60 days after the due date.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Status of Paid Sick Leave Law

2013-03-08T16:26:33Z

Q: A couple of years ago, I heard about a law being proposed, I think by someone from San Francisco, that would require employers to provide paid sick leave. Since then, though, I haven’t heard anything more about it. How would I find out what happened with that bill?
Thanks, Glenn

A: It looks like this idea has been presented to the Assembly twice in recent years – as AB 1000 in 2009, and AB 400 in 2011. Both bills were presented by former Assembly Member Fiona Ma (D- San Francisco). These bills required employers to provide one hour of paid sick leave for every 30 hours worked, to be used for the diagnosis, care, or treatment of health conditions of the employee or an employee’s family member, or for leave related to domestic violence or sexual assault.

Researching recent California bills is made easy by the California Legislature’s Legislative Information website, which provides details about all bills introduced in the Senate or Assembly since the 1999-2000 session. A less user-friendly version of this website also exists, with coverage back to the 1993-1994 legislative session. Both websites provide detailed information about every bill, including committee analyses, amended versions of the bill, results of votes on the bill, history of the various committees that reviewed the bill, and the current (or final) status of the bill. Users may search either website by keyword, or retrieve bills by bill number, author, or chapter number.

It looks like both AB 1000 (2009) and AB 400 (2011) died pursuant to Art. IV, Sec. 10(c) of the California Constitution, which requires bills introduced in the first year to be passed by January 31st of the second year of the session.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Dogs Off Leash

2013-03-01T21:31:53Z

Q. Hi Law Librarian,

I have neighbors (husband and wife) that walk a large mix breed dog without a leash in the alley in back of our homes. This alley consists of back yard fences and garages. Unfortunately, this dog and my small pug, Honey Boo Boo, hate each other. The dog when passing my yard throws his whole body against the fence barking and growling which then sets off Honey Boo Boo to do the same. I run into the yard and get my dog away from the fence. I have asked my neighbors when this behavior is happening to control their dog either by voice or with a leash and they said they would but it continues. Last week their dog broke three boards and got his head through the fence. I am terrified that this dog will get into my yard and hurt Honey Boo Boo. I hired a contractor to replace the boards and reinforce the fence with plywood in the alley. Now I am out $500. What can I do?

Brenda

A. Hello Brenda,

A first step would be to sit down and talk to this couple calmly and reasonably. Sometimes owners may be unaware of all of your concerns and now that damage has been caused you can address that as well. Even if you're sure the neighbor does know about the dog's antisocial behavior, it may be better to proceed as though they don’t. You may be pleasantly surprised by the neighbor's willingness to work toward a solution.

Some negotiation tips:
• Make an appointment for a convenient time to talk
• If you think it's appropriate, take a little something to the meeting to break the ice.
• Don't threaten legal action. There will be plenty of time to discuss legal remedies if relations deteriorate.
• Offer positive suggestions.

The City of Sacramento and S acramento County Shave leash laws that require dogs to be safely under control and leashed at all times outside of designated “off-leash” areas including City and County Parks. Owners can be cited resulting in a fine. If this behavior persists you can contact the City of Sacramento Animal Care Services (916) 808-7387 or if you are in the County the Sacramento County Animal Care (916) 368-7387 to lodge a complaint.

Another avenue is mediation, which is a voluntary and informal process in which the Mediator, a neutral third party, facilitates settlement negotiations. The Mediator improves communication by and among the parties, helps parties clarify facts, identifies legal issues, explores options and helps parties to arrive at a mutually acceptable resolution of the dispute. The Sacramento Mediation Center would be a great place to start.

Small Claims court is also an option for nuisance disputes . It has the advantage of being very quick, with cases typically being heard in only a few months, and being relatively inexpensive. You can sue in Small Claims for up to $10,000, and your damages fall well within this limit.

At the law library, we suggest reading Everybody’s Guide to Small Claims Court in California, a very useful book on the small claims process. Every county in California has a Small Claims Advisor that can assist you with your case free of charge. You can find county-specific court information including Small Claims Advisors.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Can I Get a Refund when I Dismiss my Case?

2013-02-21T01:21:36Z

Q. Hi Law Librarian,

About 5 weeks ago I filed a lawsuit in the Sacramento County court against a customer who owed me $17,000. I had to include a check for $370 to file the lawsuit. I followed the directions to stamp it and put it in the dropbox, but I have never talked to anyone and I never heard back. I checked on the court’s website and my name isn’t showing up in the Case Index, and the check hasn’t been cashed. Last week the customer and I worked out a payment plan and I agreed to drop the lawsuit. Can I get my check back or do I have to wait for them to cash it to get a refund?

Luvinia

A. Hello Luvinia,

Unfortunately, even though it has not shown up online yet, your lawsuit has been “filed” and you will not qualify for a refund of the filing fee.

As you saw, the Sacramento County Superior Court now accepts most filings, including new complaints, in a dropbox, rather than the clerks’ windows. The dropboxes are a way to deal with staff reductions due to budget cuts. The staffers that remain are working really hard to keep up, but since the court gets so many papers every day, there can be a significant time wait time for you to receive your copy and for them to be uploaded to the court’s website.

However, the date you stamped on the back of the papers when you deposited them is the official filing date. Most of the time, this is a good thing. People need to know that their paperwork gets in on time. Some types of filings have strict deadlines, such as the end of the statute of limitations, and the date stamp proves that the deadline was met.

Even though you haven’t received your copy and it’s not showing on the website, your complaint is already in the system. The court clerks actually pull the papers out of the dropboxes several times a day, sort them by type of document, and perform some other preliminary processing. Later the documents are put through a more thorough processing. It’s after this more thorough processing that your stamped copies are mailed back to you, and the digital copies appear online.

Different types of paperwork are processed more or less quickly. For instance, new complaints may be a few weeks behind, while requests for dismissal may be several months behind. New complaints have a higher priority, because although there’s no immediate deadline after a complaint is filed, there are next steps that depend on getting the complaint back with the case number and summons. Requests for dismissal are less urgent.

Papers that require action within days, such as motions and ex parte applications, are still filed directly with the clerks.

You can check how long the wait is for several types of documents on the Civil Department’s web page. As of this writing, new civil cases are “only” three weeks behind—a vast improvement from the fall, when they were eight or more weeks behind. Requests for dismissal are three months behind.

One last note: you’ll need to file a Request for Dismissal, CIV-110, to end the case. However, since you need to include the case number on the form, you will have to wait until you get your copy of the complaint back to do it.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Promissory Notes, Liens, and Foreclosure

2013-02-14T00:28:16Z

Q. I have a promissory note in the amount of $70,000.00 secured with a deed of trust to a house in Tahoe City. The note is now 8 months overdue. I would like to place a lien against another home he owns in Tahoe City as well . . . how do I go about doing that? Also, what is the best way to force payment on this Note? Thank you!

Carrie

A. You seem to have two questions: one, how do you go about placing a lien against real property when you do not have a security interest in that property; and two, how do you foreclose against real property in which you do have a security interest? Let’s take them in turn.

The answer to your first question is that you cannot. Liens are governed generally by California Civil Code (Civ. Code) §§ 2872 – 2914. A lien is a claim against specific property, by which it is made security for the performance of an act (usually payment). Civ. Code §2872. A lien can be created by a contract between the two parties (e.g., your promissory note and deed of trust) or by operation of law (e.g., a judgment lien). Civ. Code § 2881. California law does not allow a lien to be placed upon real property without a corresponding obligation specific to that piece of real property. You would first have to sue the owner of the real property and obtain a judgment before you could place a judgment lien on the property. See my previous article on “Real Estate Liens,” at h ttp://sacramentopress.com/headline/72129/Ask_the_Law_Librarian_Real_Estate_Liens for more information on this process.

A judgment lien would entitle you to the amount of your judgment plus accrued interest from the escrow, if and when the property was sold or refinanced, and after any Homestead Claims (which can range from $75,000 to $175,000, see the “Homesteads” Step-by-Step Guide on our website at http://www.saclaw.org/pages/homesteads.aspx for more information), and any other creditors with a higher priority (like any promissory note and deed of trust on this house) were paid.

In some situations, it may also be possible to "foreclose" on the judgment lien, and force the sale of the property. This is only an option is there is enough equity in the property to pay off any Homestead Claims, all other existing liens, and the costs of the foreclosure lawsuit itself, which can be significant. For more information, see the “Enforcement of Judgments” Legal Research Guide on our website at http://www.saclaw.org/pages/lawsuits-judgments-topic.aspx.

The answer to your second question is to foreclose upon the property. Your deed of trust most likely authorizes you (the lender) to foreclose if the loan is in default, without having to go to court first. See our Step-by-Step Guide on Deeds of Trust, available on our website at http://www.saclaw.org/pages/deed-of-trust.aspx, for more information.

Although this non-judicial route is cheaper and faster than judicial foreclosure, non-judicial foreclosures must conform to the very detailed regulatory scheme found in the California Civil Code §§ 2920-2924, which has been amended of late to add more protection for borrowers, due to the sub-prime mortgage crisis. See our Legal Research Guide on Foreclosures, available on our website at http://www.saclaw.org/pages/foreclosure.aspx, for more information.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Archery Practice in the Backyard

2013-02-07T23:15:25Z

Q. My neighbors and I have always had a friendly relationship, so I’m not sure what to do about the current situation. Recently, their 12-year-old daughter saw the movie ‘Hunger Games’ and became interested in archery. They have set up a target in their backyard that is flush against the fence we share. I’m a little concerned about wayward arrows, especially when coming from a younger person’s bow. Is it legal to shoot a bow in your backyard? We live in a residential neighborhood and the houses are fairly close to each other, about 20-30 yards between each house.
Annie

A. Your plight is probably shared by many; I’m sure there are parents nationwide who have been shelling out money for bows, arrows, and targets and shuttling children to the range for archery lessons since the ‘Hunger Games’ movie (and books) became popular with youths everywhere. While many cities and towns, especially those in rural areas, have designated archery ranges available for practice (often with a usage fee for non-members), sometimes archers choose to practice on their own properties. Whether this is legal may depend on state laws and local ordinances; whether it is safe depends on the knowledge and experience of the archer and the precautions taken.

To find out if shooting a bow is legal in your area, you must research your state, county and city codes, in that order. Generally, this is a regional issue so the county and city codes will be the best places to look, but just to be certain I’d suggest checking your state laws as well. California state laws do not prohibit you from shooting a bow in your own backyard, though there are laws relating to bows and other firearms used recreationally. Responsible archers will be familiar and comply with all applicable state and local laws. So, the next place to look is your county and city codes—these should be available online or in print at your local county public law library or at your local public library. To locate the public law library nearest you, go to www.publiclawlibrary.org.

Let's use Sacramento as an example: performing a simple keyword search in the Sacramento County Code online, we find a couple of relevant sections. Section 9.36.060 prohibits a person from possessing, using, maintaining, and discharging a bow within park limits, and Chapter 9.41 "Bows and Arrows" gives us the answer we’re seeking. Upon reading we learn that it’s legal for an owner of real property (or someone with permission from the owner) to shoot a bow on his or her property as long as the arrows do not trespass onto adjacent property, when the adjacent property features a residential structure within 150 yards of the shooter’s property boundaries (Section 9.41.030). The code chapter stresses the importance of using adequate precautions to ensure that arrows do not leave the property from which they are shot, but because of the varying nature of properties it would be impossible to set forth arbitrary specifications for such precautions (e.g. the exact measurements between the target and nearby structures, backdrop materials, etc.).

To finish your research, you should consult your city’s code and, if applicable, your HOA restrictions. The Sacramento City Code has only one ordinance that restricts the use of bows: Section 12.72.060(L)(1) states that “no person shall…possess, discharge, or shoot…any bow and arrow in any park, except in areas designated for such use.”

If your county and city codes do not specifically prohibit an urban property owner from shooting a bow in his or her backyard, what other options might you have as a neighbor? If you’re concerned about safety, and rightly so, you should also make certain that your neighbors are equally concerned. It’s within your rights to discuss what precautions they’re taking in regard to target placement, backdrop size and material, visibility during practice sessions, and whether a parent is supervising the sessions. For more information on safety precautions and archery in general, you may want to contact a nearby archery range or store. If you find that your neighbors are violating a county or city ordinance, whether by simply shooting the bow in the backyard or shooting arrows into your backyard, you can contact your local code enforcement department. Archery is a fun and challenging sport, but even the most experienced archers know that accidents can happen to anyone, and therefore safety should always be the first priority.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Since When Is Mayhem Funny?

2013-02-01T01:55:21Z

Q-
I love the Allstate commercials where there’s a guy called “Mayhem” and he creates lots of problems for people. Obviously, the commercial is trying to get people to buy insurance by saying mayhem is everywhere, watch out for mayhem, and protect yourself from mayhem. I’ve also heard murder and mayhem mentioned together in movies, but what exactly is mayhem? And since when is mayhem funny??
Drew

A-
Thanks for your question Drew. Those Allstate commercials are pretty clever and always leave me with a smile. There are a couple of different ways to answer your question. People often have varying ideas of what mayhem actually means; first we can look at the basic definition and the one that I think the commercial may be alluding to.

The Merriam-Webster online dictionary offers a definition of mayhem as “needless or willful damage or violence”. This seems to fit the variety of situations that are often seen in the commercials. Typically, there are events or scenarios, mostly from negligence, that cause problems to insurers such as tree limbs falling or other damages. These events seem rather trivial in nature in comparison to the primary legal definition.

If you are in law enforcement or other legal professions, “mayhem” has a completely different meaning, and is often associated with torture! Mayhem is legally defined in the California Penal Code sections 203-206 and states “every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem”. Mayhem is punishable by imprisonment in the state prison for two, four, or eight years. People v. Ausbie, discusses that it is the nature of the injury, and not the degree of force that distinguishes mayhem from other related offenses such as assault and battery.

After reading the legal definition, I agree “mayhem” is certainly not something to be laughed at, but you have to admit, the advertisers have done their job, since people are not only remembering the commercials, but they are actively being discussed by consumers.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Construction Disputes

2013-01-24T21:34:23Z

Q: My husband and I hired a licensed contractor to renovate a bathroom in our home about three months ago. About six weeks ago, he just stopped showing up altogether, and is not returning any of my calls. There is a lot of unfinished work, and a lot of the work done so far was done very badly. What can I do?

Thanks!
Cheryl

A: Contractor’s State License Board (CSLB) is often a good place to start. They offer investigation, mediation, and arbitration services for construction disputes. The board can also take disciplinary action against the contractor, such as suspending his license, imposing fines, or ordering your contractor to correct his work (or pay to have someone else correct his work). More information about the CSLB’s complaint process is available at http://www.cslb.ca.gov/consumers/filingacomplaint/.

The CSLB’s focus is on resolving the dispute, rather than obtaining restitution for the complainant. If your primary focus is restitution, you may want to consider court action against the contractor. If your dispute could be resolved for $10,000 or less, you could pursue your case in small claims court, where you will find streamlined procedures and a quicker resolution to your case. For more information about taking your case to small claims court, see http://courts.ca.gov/selfhelp-smallclaims.htm. For claims over $10,000, you would need to pursue your case in the general civil court. More information about lawsuits in civil court is available at http://courts.ca.gov/selfhelp-problemswithmoney.htm.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Requesting Documents From Government

2013-01-17T23:00:00Z

Q. I moved to an apartment that is near the railroad tracks in Mid-Town. Trains blow their horns day and night. I understand that the City has applied for a Quiet Zone for that stretch of track. I was trying to get the application and other relevant documents from the City but I am not sure how to do it. Any suggestions? Todd

A. Hi Todd,

The California Public Records Act (CPRA) guarantees that the public has access to public records of governmental bodies in California (CA Gov. Code section 6250 et. seq.) It allows inspection and/or disclosure of governmental records to the public upon request, unless exempted by law. The California legislature prefaced the legislation by stating, “…access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

The law is similar to the Federal Freedom of Information Act, 5 U.S.C. Section 552 et seq which provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.

Before sending a request to an agency, you should determine which agency is likely to have the records you are seeking. In your case it may be the City of Sacramento Department of Public Works, County of Sacramento, California Public Utilities Commission and probably the Federal Railroad Administration as a start.

There is no specific form that must be used to make a request. The request simply must be in writing, reasonably describe the information you seek, and comply with specific agency requirements which may include paying for copies or just allowing you to review documents on site. Visit http://www.ag.ca.gov/publications/summary_public_records_act.pdf for a very comprehensive report on the CPRA.

I hope this helps!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - When Must Dogs Be Brought Inside?

2013-01-10T18:34:25Z

Q. Is it illegal to leave a dog outside when it is below a certain temperature? Cinthia

A. Hi Cinthia,

There is no specific temperature requirement for bringing a dog indoors.

However, there are laws that may apply in this situation.

California Penal Code 597(b) states that “every person who ... fails to provide the animal with proper food, drink, or shelter or protection from the weather...is, for each offense, guilty of a crime punishable pursuant to subdivision (d).” Subdivision (d) provides for either felony or misdemeanor charges, and/or a $20,000 fine.

If this is in the City of Sacramento, the City Code may also apply. Sacramento City Code section 9.44.250 makes it “unlawful for the owner of any animal to knowingly permit or allow such animal to go without proper food, water, care, shelter, or medical or veterinary attention.” Section 9.44.270 requires animal care services staff to report evidence of mistreatment to the Sacramento Society for the Prevention of Cruelty to Animals. Other cities and counties may have similar codes.

If you are concerned about a neighbor's animals, you may want to contact the Sacramento Animal Care Services or equivalent in your city or county.

If you're wondering when to bring your own dog in, WebMD's pet section says the following:

For a pooch that spends a lot of time outside, you'll need to take the same steps to protect your dog in cold weather as those taken for an outdoor-only cat, including:

Making sure your dog has warm, dry, draft-free, covered shelter, preferably in a garage, shed, or beneath a carport or porch awning.
Warming that shelter with bedding you check daily -- wet bedding can be fatal to a pet. Look into purchasing electric heating products specifically made for a dog's use.
Being sure that fresh, unfrozen water is available to your dog every day. You can find inexpensive warmers to keep your pet's water from freezing.
Providing your dog plenty of food; pets need even more calories in the winter to help them keep warm.

Always bring your dog inside when the temperatures turn particularly harsh, the pros say. "If you wouldn't want to be out in those conditions in just your clothes and a coat for too long, your pet won't want to be either," pet owner and Utah social worker Sherri G. says.

I hope this helps!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian -- Self Storage Facilities

2013-01-05T01:11:01Z

Q. Greetings,

I was hoping to find out information on laws surrounding self storages and the return of personal property such as pictures and personal papers.

I recently had a storage unit sold that contained many personal papers (contracts and agreements) and boxes full of family photos (current framed and past pictures of living and deceased members). The storage company has stated these items were to be returned and would look into the matter, but, have yet to return calls or answer when we call.

I know certain states have laws requiring these types of items be returned; does California have such a law?

Thanks and kind regards,

DaShon

A. During the holidays, while we were visiting my mother-in-law and her new husband, I became hooked on a TV reality show called “Storage Wars” (it was the only thing we could all watch without some of us remembering, and others raising, uncomfortable topics). In Storage Wars a cast of regulars (and professional buyers), Darrell, “The Gambler;” Jarrod and his wife Brandi, “The Young Guns;” Dave, “The Mogul;” and Barry, “The Collector;” bid against each other and others in an auction for the contents of storage units that have been abandoned. While the show itself is obviously scripted, and the incredible “finds” may be planted (see Lawsuit Claims A&E’s “Storage Wars” Show is Rigged, ( http://www.npr.org/templates/story/story.php?storyId=166991032 ), the show’s premise, intoned by the narrator just before the opening credits, is sound:

“When Storage Units are Abandoned, the Treasures Within are put up for Auction.”

Most of the action takes place in California, and is perfectly legal, according to Business & Professions (B&P) Code Sections 21700 through 21716, which govern self-service storage facilities. Effective January 1, 1982, the California Self-Service Storage Facility Act provides very specific guidelines for storage facility attachment liens and the subsequent sale of property that may occur due to non-payment of rent and fees.

The owners of the self-service storage facility have a lien on all personal property located at the self-storage facility for rent, labor, late-payment fees or other charges, present or future, incurred pursuant to the rental agreement, and for expenses necessary for the storage, sale, or disposal of personal property. B&P Code § 21702. A “lien” is a creditor's legal claim against particular property owned by a debtor as security for a debt.

If any part of the rent or other charges is unpaid for fourteen (14) consecutive days, a storage facility owner may terminate the right of the renter to use the storage space by sending a notice to the renter’s last known address. Sections 21703 and 21704 of the Business & Professions Code detail the information that must be included in the preliminary lien notice. If the renter does not pay the full amount by the date specified in the preliminary lien notice, the storage facility owner's lien attaches to the personal property. At that time, the owner may enter the space and deny the renter access to it. If the notice of lien was sent by certified mail, the owner may also remove property found in the space to a place of safekeeping. If the notice was sent by first class mail, the owner must wait another fourteen (14) days before removing the property. B&P Code § 21705.

Once the lien attaches, the owner must send the renter a Notice of Lien Sale and a blank Declaration in Opposition to Lien Sale form. The required contents of the Notice of Lien Sale are detailed in Section 21705 of the Business & Professions Code.

If the renter completes and timely returns the Declaration in Opposition to Lien, the storage facility owner may try to enforce the lien in either small claims or superior court. If the court grants the owner a judgment in his or her favor, the lien sale process continues. B&P Code § 21710.

After the lien attaches, if no declaration in opposition to the lien sale is executed, the owner of the self-service facility may sell the property. B&P Code § 21706. The sale must be advertised for two weeks prior to the sale. The advertisement must include a description of the property to be sold, the name of the storage space renter, and the name and location of the storage facility. B&P Code § 21707.

The contents of a storage unit are usually auctioned off as a single lot of items. On Storage Wars the cast bids on the contents based only upon on a five-minute inspection of what they can see from the door when it is opened (this seems to be the industry standard; you can find a list of upcoming storage auctions in your area, along with the facility’s auction guidelines, on the California Self-Storage Association’s website, http://www.californiaselfstorage.org/).

At any time before the sale, any person claiming a right to the goods can pay off the lien, plus one month's rent in advance, and the sale will be cancelled. The claimant then has thirty (30) days to obtain a court order directing the disposition of the property. If no court order is obtained, the claimant must pay the owner the original monthly rental charge for the duration of the original rental agreement. If the claimant fails to pay, the storage facility may start the lien and sale process all over again. B&P Code § 21709.

After the sale, the storage facility owner must hold any proceeds in excess of the lien and costs of the sale for the renter. The renter may claim this money at any time within one year of the date of sale. After one year, any unclaimed proceeds are turned over to the county treasury. B&P Code § 21708.

Finally, a storage facility owner cannot take advantage of the California Self-Service Storage Facility Act’s liberal remedies for non-payment if the rental agreement does not include a statement that the renter’s property may be subject to a lien and sold to satisfy payment that is fourteen (14) days late, and does not offer the renter a space in the agreement to identify an alternate person (and address) to whom lien and sale notices must be sent. B&P Code § 21712.

If the storage facility you used failed to comply with any of the California Self-Service Storage Facility Act’s provisions regarding the notices required in your contract and the notices required for the lien and sale of your property, you could sue the storage facility owner for the value of the contents of your storage unit (in small claims court if the value does not exceed $10,000; in superior court if it does), or for the return of your personal papers and family photos and other personal property (in superior court only; small claims courts can only award monetary damages). However, the contents of your storage unit were probably bought as a whole in an auction, and whoever bought the unit probably disposed of anything that was not particularly valuable and could not be sold at a thrift or similar store.

Likewise, if you had a separate agreement with the facility to return your personal papers and family photos, you could try to enforce that agreement in superior court; the California Self-Service Storage Facility Act specifically provides that “[n]othing in this chapter shall be construed to impair or affect the right of the parties to create additional rights, duties, and obligations . . . .” B&P Code § 21713. However, in addition to the burden of proving the existence of an oral contract, you would face the same, almost insurmountable hurdle mentioned above: your personal papers and family photos are probably long gone.

I’m sorry I couldn’t give you a better answer; I realize how valuable your personal papers and family photos must have been to you, if not anyone else. I hope 2013 will be a better year for you—I’m sure it will be!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Food Allergies and Restaurants

2012-12-27T23:51:07Z

Q. My wife and I recently discovered that our one-year-old daughter has several food allergies, including peanuts, dairy, eggs, and peas. Are there any laws in California that require restaurants to indicate any of these ingredients on their menus, if they are not immediately obvious from the nature of the dish?

Thanks,
Nicolai

A. Good question, and one that is applicable to a growing number of parents and children each year. According to the Food Allergy and Anaphylaxis Network (FAAN), “food allergies affect as many as 15 million Americans, and the prevalence is increasing among children. According to the Centers for Disease Control and Prevention, food allergy causes more than 300,000 ambulatory care visits each year involving children under 18.” FAAN, a non-profit organization, specializes in promoting public awareness, advocacy and education, and research on behalf of all those affected by food allergies and anaphylaxis.

In recent years food allergy awareness and advocacy has grown, and several states have enacted laws that govern how schools and camps should safely manage children with food allergies. Restaurants, however, are a different story and the subtopic that we’ll be discussing here. If you’d like to find out more on how state laws apply to food allergies in schools, camps, and other institutions, I suggest visiting your local public law library for research assistance. To find the public law library nearest you, go to www.publiclawlibrary.org.

For the most part, state legislators and their respective state restaurant associations have not been able to come to any conclusive agreements on the role restaurants could or should play in regard to food allergy safety. However, in 2011 Massachusetts enacted the Food Allergy Awareness Act, requiring, among other things, restaurants to display a food allergy awareness poster (developed by FAAN) in the staff area and include a notice on menus and menu boards that reads "Before placing your order, please inform your server if a person in your party has a food allergy." In addition, as of February 1, 2011, restaurants in Massachusetts will have to have on staff a certified food protection manager who has been issued a Massachusetts certificate of allergen awareness training through a training program recognized by the MDPH. To read more about these requirements, visit the online Massachusetts Department Health and Human Services.

Currently, California has not passed any statutes or regulations that require restaurants to publish dish ingredients or warn customers about possible allergens, though restaurants can, and frequently do, include warnings of their volition.

California law does, however, require every foodservice establishment to have at least one employee who holds Food Protection Manager Certification, which must be renewed every five years (California Health and Safety Code §113947). If the California certification test is modeled after the nationally-accredited food safety certification from the National Restaurant Association (NRA), it will include information on food allergies and the prevention of incidences. To find out more about the California Food Protection Manager Certification, contact the California Restaurant Association (CRA). The CRA also makes available online resources for accommodating guests with food allergies, including the FAAN’s guide “Welcoming Guests with Food Allergies.”

Ultimately, it is up to the individual, or caretakers of the individual, to advocate food-allergy safety when dining in any restaurant or food establishment, regardless of locale. The following are web sites that offer advice for restaurant diners with food allergies:

Kids with Food Allergies
http://community.kidswithfoodallergies.org/

SuperMarketGuru’s Food Allergy Buddy
http://www.supermarketguru.com/food-allergy-buddy.html

FAAN's Tips for Managing Food Allergies: Dining Out

http://www.foodallergy.org/section/dining-out1

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Determining Competency in a Durable Power of Attorney

2012-12-20T21:50:22Z

Q-
Who determines competency in a Durable Power Of Attorney? It states "The powers you grant below are effective even if you become disabled or incompetent". That is the only statement about competency.

Thanks, Richard.

A-
Richard,

Thank you for your question. For a person to establish a Durable Power Of Attorney (DPOA), they must have the mental capacity to understand and sign the document. Looking in a book we have here at the law library called “California Powers of Attorney and Health Care Directives” published by CEB, typically, the attorney representing a principal in the drafting of a DPOA for financial management determines the mental capacity of the client. The “capacity” required to execute a DPOA is set by California statutes and is the same capacity a natural person has in making a contract and is discussed in the California Probate Code §4120 and the California Civil Code §1556.
A person is mentally competent as long as they can understand the rights, responsibilities, risks, or benefits involved in financial decisions, and the potential consequences of what they decide. The Due Process in Competence Determinations Act (DPCDA), particularly California Probate Code § 810-813 sets the standards for determining whether a person has the capacity to enter into a contract.

Some of these standards include:

• Level of arousal or consciousness.
• Orientation to time, place, person, and situation.
• Ability to attend and concentrate.
• Short- and long-term memory, including immediate recall.
• Ability to understand or communicate with others, either verbally or otherwise.
• Recognition of familiar objects and familiar persons.
• Ability to understand and appreciate quantities.
• Ability to reason using abstract concepts.
• Ability to plan, organize, and carry out actions in one's own rational self-interest.
• Ability to reason logically.

If the Durable Power of Attorney was created some time ago, and you now have a concern that the person executing it did not have the capacity to enter the agreement at the time, you may be able to go to court to challenge the document. To make a determination, a judge would probably question those who knew the person at the time, to determine if they understood what they were doing. For more information on challenging the document, you may want to look at “Capacity and Undue Influence: Assessing, Challenging, and Defending” an action guide also published by CEB.

However, if the person indeed had the capacity to execute the DPOA, but are now incapacitated, the DPOA remains in effect, based on the statement "The powers you grant below are effective even if you become disabled or incompetent". For more research on this topic, all of the codes and books mentioned in this article can be reviewed at the law library.

Ask the County Law Librarian - Bus Zone Parking

2012-12-13T19:59:50Z

Q: I cannot find any specifics to the parking code CVC 22500(i), Sacramento City, Sacramento County. I was parked 24 feet and 31 inches away from a bus sign and received a $367.50 fine. I felt I was parked far enough away from the sign and behind another car parked closer to it. I'm looking for the law that states the exact footage from the sign that would be considered the "bus zone". So far I've found only a vague description that includes red paint on the curb. There was no paint of any kind on the curb or any other indicator that my vehicle was parked within the bus zone. I feel the ticket is unwarranted. I've also noticed, and photographed, cars parked in the exact same spot every day since I received my violation notice and not one other car has had a ticket placed on it, in 2months! Additionally, the car that was parked closer than me did not have a violation ticket. My car is red. Could that be the problem?

Thank you in advance for your reply.

Harley

A: California Vehicle Code 22500(i) prohibits parking at curbs designated by local authorities as bus zones. In the City of Sacramento, the City Traffic Engineer is charged with determining the location and size of bus zones (Sacramento City Code 10.36.150). Bus zones are generally labeled with a red curb, a posted sign, or both.

The size of each bus zone is determined by the traffic engineer’s evaluation of the location. Factors considered include the width of the street, speed limit, traffic flow, and other safety and traffic-impact issues. The Sacramento Municipal Services Agency’s Improvement Standards provide drawings of several common scenarios, all of which include a minimum 100-foot bus zone.

The Transit Cooperative Research Program (a program sponsored by the Federal Transit Administration) has published Guidelines for the Location and Design of Bus Stops. These guidelines recommend a minimum of 90 -100 feet for bus zones near intersections, and a minimum of 150 feet for midblock bus stops. Although 100-150 feet may seem very large, keep in mind that most buses are 45 feet long, and they need enough room to safely pull into and out of traffic.

If you believe you were ticketed in error, or that the bus zone was not properly marked, you may contest the citation online at: http://www.cityofsacramento.org/transportation/parking/onstreetcitation.html. You can also find information about paying your citation from that website.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Photo Required with Job Application?

2012-11-29T20:08:10Z

Q. I am applying for a job as the manager of an apartment complex. The company has told me that I must submit a recent photo with my job application. Is this legal?! -Olivia

A. Dear Olivia,

Requiring photographs is not illegal in all states, but it is in California. Under California regulations, it is illegal to require photographs as part of a job application, with certain exceptions (“defenses”):

"(2) Photographs. Photographs shall not be required as part of an application unless pursuant to a permissible defense." Cal. Code Regs. tit. 2, § 7287.3

However, once a person is hired, the employer may require them to submit a photograph.

You can find more information at the website of the California Department of Fair Employment and Housing. You may wish to read a copy of the handout “Employment Inquiries: What Can Employers Ask Applicants and Employees?”

Why is this prohibited? Requiring a photograph with an application is a possible way to exclude applicants because of their race, gender, disability, or other protected factor, without even offering an interview. The employer may not even realize that they are favoring one group over another; they may just perceive some candidates more favorably.

If an applicant is never even called in for an interview, it is very difficult to determine whether the employer discriminated against the applicant, or simply didn’t find them to be a suitable candidate for permissible reasons, such as lack of experience. Because of this, even in states where it is legal to require a photograph, it tends to be discouraged and can be introduced as evidence in a discrimination lawsuit. Therefore, it’s usually recommended that employers avoid asking for photos even if it isn’t illegal in their state.

If you would like more information about your rights as a job applicant or employee, you can visit the law library and review a book such as Your Rights in the Workplace from Nolo Press. You may also want to contact the California Department of Fair Employment and Housing.

Coral Henning, Director

@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian -- American Opportunity Tax Credit Scam

2012-11-21T18:16:29Z

Q. A friend of mine told me that a company called SOS America is offering $500 Visa Cards to people who are eligible for the American Opportunity Act education credit. All I have to do is fax photocopies of my Driver’s License and Social Security Card. I’m a broke college student, and I sure could use the money, especially right before the Holidays. What is the American Opportunity Act education credit? How can I get in touch with the SOS America company?

A. Stop, Emily, Stop! This is a scam! If they do somehow manage to contact you, report them to the IRS at 800-829-1040, or inform the local Sacramento office at 4300 Watt Ave., (916) 974-5225, Sacramento, CA 95821. You can usually tell a scam because, as my mother always said, and I’m sure yours did, too, “If it is too good to be true, it probably is.” But, don’t take my word for it. Here are a couple of web articles about the scam:

http://dontmesswithtaxes.typepad.com/dont_mess_with_taxes/2012/03/beware-tax-scam-illegally-claiming-the-american-opportunity-education-tax-credit.html

http://blog.cahealthadvocates.org/2011/08/american-opportunity-act-scam/

The American Opportunity Act education credit, however, is a good thing, and may benefit you if you file a tax return. Officially known as the American Opportunity Tax Credit, it was to expire at the end of 2010, but was extended for an additional two years--through December 2012--by the Tax Relief and Job Creation Act of 2010. The modification of an existing education tax credit (called the Hope Credit) under the American Recovery and Reinvestment Act of 2009 (commonly known as the “Stimulus” Act) expanded the credit to a broader range of taxpayers, including many with higher incomes and those who owe no tax, added required course materials to the list of qualifying expenses, and allowed the credit to be claimed for four post-secondary education years instead of two.

The maximum annual credit of $2,500 per student is available to individuals whose modified adjusted gross income is $80,000 or less, or $160,000 or less for married couples filing a joint return. The credit is phased out for taxpayers with incomes above these levels.

Good luck in school, Emily, and Happy Holidays! Enjoy your break!

Ask the County Law Librarian - Local Restrictions on Wood Burning

2012-11-15T23:35:25Z

Q. When the cold weather hit last week I made a comment to my neighbor about how much I was looking forward to using my fireplace this winter (I recently bought my first house). My neighbor said that I can only have fires on approved days, but he didn’t know anything more about it. Is this true? I can’t imagine the government controlling how often people use fireplaces and or woodstoves in their own homes.
- Marie

A. Your neighbor is correct: some local and state governments regulate the use of fireplaces, woodstoves, and fire pits during the colder winter months in order to reduce soot levels in the air. The increased use of wood-burning devices as the temperature drops can lead to poor air quality, which can impair breathing in very young and elderly residents as well as those with respiratory problems such as asthma or allergies.

Some states have regulations in place that limit the use of wood-burning devices in certain areas or when air quality is threatened, while others offer credits or tax deductions when residents purchase state-approved, low-emission wood-burning devices, like pellet or wood stoves. A summary of state regulations, fees, and taxes regarding wood burning is available on the U.S. Environmental Protection Agency web site, but for comprehensive coverage check your state’s air resources agency web site.

California is divided into 35 air districts that have primary responsibility for controlling air pollution from residential or commercial structures. The air districts tend to correspond to California’s counties (e.g. the Colusa air district covers Colusa County) but some air districts are regional (e.g. the Bay Area air district spans several counties). The California Air Resources Board provides a district map and a helpful guide to help users determine their air district by ZIP code, city, or county. Once you’ve determined your air district, you can view that district’s rules online or contact the district directly using this online directory.

In many areas of California, local county or city governments have implemented their own seasonal programs—in addition to air districts’ rules—that may apply stricter guidelines to the use of wood-burning devices. These programs, which generally run from November to February, provide daily forecasts of the amount of fine particulates (soot) in the air, and then issue advisories to residents based on forecast findings. These advisories can be optional, recommended, or mandatory depending on the program. The city of Davis, for example, has implemented a pilot program that expressly prohibits the use of wood-burning devices on days that the city has issued a ban on wood burning. Residents can report violations, and a case will be referred to local code enforcement if a resident fails to comply after two courtesy notices. If you’d like to find out whether there are any wood-burning restrictions in your area, try the above sources or visit your city and county’s web sites.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian: Stale Checks, Can They Still Be Cashed?

2012-11-08T20:58:35Z

Q-: My daughter is in elementary school and it seems like they are always asking for money. First it was a field trip, then a fundraiser, finally I needed to purchase a school t-shirt. For each instance, I gave them a check payable to the school. They have cashed some of the checks but not all of them. The one I am concerned about was given to them and dated back in September. Now that it is November, can they legally still cash the check?

Parent in Natomas

A: According to “Consumer Banking and Payments Law” published by the National Consumer Law Center, six months after the date on any check, the check is considered a “stale” check. According to the Uniform Commercial Code 4-404, “A bank is under no obligation to a customer having a checking account to pay a check, other than a certified check, which is presented more than six months after its date, but it may charge its customer's account for a payment made thereafter in good faith.” The Uniform Commercial Code 1-201 (b)(20) defines good faith as “honesty in fact and the observance of reasonable commercial standards of fair dealing.” A copy of this book is available at the law library for review.

California has adopted the Uniform Commercial Code and its version of the law is discussed in the California Commercial Code 4404. Both laws are consistent that once a check is stale the bank is under no obligation to pay the check, unless it is a certified check. However, the bank may pay the check after this time period as long as it does so in good faith.

Since it has been about 60 days since you gave the school the check, the check is not yet considered stale, so yes they can still cash the check! Even if it was a stale check, chances are good that the bank would still pay on the check. If you are really concerned, you may want to contact the school directly to see when they anticipate depositing the check. Sometimes, organizations have a regular deposit schedule. Either way, you will want to make sure that you have enough funds in your account, so the check will clear once it is deposited.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Ask the County Law Librarian - Campaign Signs

2012-11-01T19:33:55Z

Q: I see campaign signs all over the place on private and public property. What exactly is the law concerning campaign signs? Can one really just throw a giant sign off of Watt Avenue on a public property greenbelt and be legit? How about campaign signs placed on street poles, 10 feet up on commercial property lines without owner’s permission, non-leased commercial property fences without owner’ permission et cetera.

Thanks,
Shawn

A: With the election right around the corner, it seems like campaign signs are everywhere! State and local laws restrict the placement, size and time period for posting campaign signs.

The California Outdoor Advertising Act (B&P 5405.3) governs the posting of temporary political signs along landscaped freeways. Temporary political signs along landscaped freeways must be less than 32 square feet, and may not be within the right–of–way of any highway or within 660 feet of the edge of, and visible from, the right-of-way of a landscaped freeway. These signs can only be posted 90 days prior to the election, and must be removed within 10 days after the election. Any posted sign must have had a Statement of Responsibility filed with the California Department of Transportation, naming the person who will be responsible for removing the sign. This person will be responsible for reimbursing the Department of Transportation for removal costs if the sign is posted inappropriately. Questions or concerns related to state law should be directed to the Department of Transportation’s Outdoor Advertising Program.

State law (Public Utilities Commission General Order 95, Rule 34) also prohibits posting signs on street lights, communication poles or similar structures. Complaints about political signs on SMUD poles should be directed to the Superintendent of the Field Services Division at (916) 732-5043.

Within Sacramento City limits, city laws apply. Sacramento City Code allows political signs to be posted 90 prior to the election, and removed within 15 days following the election (15.148.600(k)(1)). Signs cannot be posted on private property without consent of the property owner (15.148.040). Permitted sign size is determined by the zoning area in which the sign is placed. In areas zoned “R”, “A”, or “OB,” the aggregate of all signs on the parcel cannot exceed ten square feet or six feet in height (15.148.600(k)(2)). In commercial areas (those zoned “SC”, “HC”, “C”, or “M”), the aggregate size cannot exceed 50 square feet (15.148.600(k)(3)). Political signs cannot be located within or over the public right-of-way, but may be placed in the planting/mowing strip between the curb and the sidewalk (15.148.600(k)(4)). However, signs may not be attached to the curb, sidewalk, post, hydrant, bridge, tree, etc. that is located on public property (15.148.630). Complaints about political signs in the City of Sacramento should be directed to the City Clerk at 916-808-7200.

In unincorporated parts of Sacramento County, county laws apply. These laws allow signs to be posted 90 days prior to the election, and removed within 10 days after the election. Political signs are prohibited in Scenic Corridors. Otherwise, signs must be at least 5 feet of the property line, and at least 16 feet from the street right-of-way lines in residentially zoned areas, and 14 feet in agriculture zones (Sacramento Zoning Code, ch. 35, section 335-03). Complaints about political signs in unincorporated areas of Sacramento County should be directed to the Sacramento County Community Hazards and Nuisance Complaint Center at (916) 875-5656.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Rental Scams

2012-10-25T21:18:38Z

Q. I have listed my home for sale and I have been alerted to two rental scams, one on Craigslist and the other on Zillow showing that my home is for rent not for sale. These scammers have even created a fake email using my name! What can I do?

Jack V.

A. Both Craigslist and Zillow have pages devoted to educating people on how to avoid scams.

As the homeowner you may flag this post in Craigslist by clicking on one of the flagging links at the upper right of right corner of the post, as “prohibited” meaning it violates craigslist Terms of Use or other posted guidelines. Craigslist will then remove the post however that doesn’t mean the scammer won’t post it again.

In Zillow scroll down to the bottom of the post and click on "Report problem with listing" which allows you to identify it as a rental scam and Zillow will remove it.

You can also report the fraud to the Federal Trade Commission via its toll free hotline: 877-FTC-HELP (877-382-4357) or online and to the Federal Bureau of Investigation's Internet Fraud Complaint Center.

If a rental seems dramatically underpriced, if a landlord is willing to lease without an application or credit check, or if the landlord or managing agent can’t meet you in person, be on your guard.

Remember the words of your mother, “if it sounds too good to be true it probably is”.

Coral Henning, Director
@coralh or @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Required Signatures on Power of Attorney

2012-10-18T23:32:48Z

Q. My husband and I have each signed and notarized separate Durable Power of Attorneys naming our daughter as the agent (and also added our two sons to succeed her). We used the form found in the Sacramento Law Library online forms. We did not have her sign the "Notice to person accepting the appointment as attorney-in-fact" as she will not actually be assuming the duties until a future date when we give her the form. I assume this does not make the document invalid since I had a power of attorney from my husband when he was overseas and I only had to present the power of attorney at that time. My question is: Does she have to sign a witnessed "acknowledgement or acceptance" in California to become our agent? If so, does it have to be part of the original notarized power of attorney or can a separate acknowledgement/acceptance be signed - does it need to be witnessed? Do our sons also have to sign an acceptance - they may never need to serve? Thank you, Edana.

A. Dear Edana,

I'm glad to hear you found the power of attorney form on our website useful. The form on the site uses the language from the California Uniform Statutory Power of Attorney form, which can also be found in Section 4401 of the California Probate Code.

Your power of attorney is valid even though your agent has not signed it, so there is no need to have your daughter or your sons sign. There is no requirement that your agent sign an acknowledgement or acceptance. Although the power of attorney form on our site does have a spot for the agent to sign, it is optional.

However, it may be desirable to have the agent sign an acceptance. This ensures that they understand and agree to their authority and responsibility as agent. If the agent expressly agrees in writing to act for the principle, he or she has a duty to act pursuant to the terms of the agreement, whereas if there is no written agreement the agent is free to act or not act on the principal's behalf. (Even an agent who has signed an agreement may resign, however.)

Since you have already finalized and notarized your powers of attorney, you probably don't want to re-do it just to include a written acceptance. If you did want your agent(s) to sign an acceptance, you could use space on the first page of the Uniform Statutory Durable Power of Attorney, which also contains a description of the responsibilities and limitations of an agent. Your agent could also sign a separate acknowledgement using the language from page one of our power of attorney form (which comes from California Probate Code Section 4128).

I have a question for you, too. Has your husband revoked the power of attorney he granted to you when he went overseas? If not, you and your daughter may both be his agents now. He may want to create a Durable Power of Attorney naming both of you (or revoke the earlier one in writing), so that any banks or agencies you previously dealt with will accept your daughter as agent without question.

If you would like more information about powers of attorney, you may want to visit the law library to take a look at a book such as California Powers of Attorney and Health Care Directives from publisher CEB.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian -- New California Law Prohibiting Credit Checks on Job Applicants

2012-10-10T23:41:15Z

Q. I am applying for a position at a big company and they will be performing a background check on me. They asked for my social security number and I had to sign waivers about consumer investigative reports, etc. I thought that a new law was passed in California this year that made it so employers could not pull credit reports or use this against a candidate as a hiring decision. I won't be dealing with money and, while I will have access to the company's email database, I will not be handling money or have access to social security numbers. Is this illegal?

A. The economic recession of the last few years, and the resulting damage to credit scores, has led many lawmakers to consider whether it's really appropriate for employers to use credit reports in making job decisions. Seven states, including California, have passed laws prohibiting or limiting how employers may use credit reports to make hiring decisions. More than 20 other states are currently considering similar legislation, according to the National Conference of State Legislatures (NCSL).

California’s law, which became effective January 1, 2012 and added §1024.5 to the Labor Code, prohibits an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report for employment purposes unless the position of the person for whom the report is sought is:

(1) in the state Department of Justice,
(2) a managerial position,
(3) that of a sworn peace officer or other law enforcement position,
(4) a position for which the information contained in the report is required by law to be disclosed or obtained,
(5) involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment,
(6) a position in which the person is or would be a named signatory on the employer's bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer's behalf,
(7) involves access to confidential or proprietary information, or
(8) involves regular access to $10,000 or more of cash.

The law also amended Civil Code §1785.20.5 to require a written notice informing the person for whom a consumer credit report is sought for employment purposes the specific reason for obtaining the report.

California Labor Code Statutes are enforced by the Department of Industrial Relations, Division of Labor Enforcement. If you’ve been the victim of a violation of the new law, I would try contacting them first.

In a state where there is no state law governing the use of credit reports in hiring decisions, federal law would apply. That federal law is the Fair Credit Reporting Act (FCRA) (15 U.S.C. § 1681 et seq.). The FCRA requires employers to:

• get the applicant's consent before pulling the report,
• give the applicant a warning (along with a copy of the report received) if the employer plans to reject the applicant on the basis of the report, and
• give the applicant an official adverse action notice if the employer does not hire him or her because of the contents of the report.

For more info on the FCRA, see Nolo.com’s informative article, “Running Credit Checks on Job Applicants,” at http://www.nolo.com/legal-encyclopedia/running-credit-checks-applicants-35457.html

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Hands-Free Phone Use

2012-09-27T21:15:18Z

Q: I recently was pulled over for using my cell phone while driving. I was not holding it up to my ear. It was lying on my center console in loudspeaker mode. To dial I used speed dial feature for my house. The call was less than a minute. The officer said being on speaker is not hands free. I read an article that claims it is and that although drivers are discouraged from dialing their phone, it is permitted. So I am just trying to clarify how the law actually reads.

A: Thanks for your question. You did not specify if you were a minor or an adult, and this is important since the law is different depending on this factor.

The first law is regarding those 18 years and older is discussed in the California Vehicle Code beginning at section 23123. This law prohibits all drivers from using a handheld wireless telephone while operating a motor vehicle. However, motorists 18 and over may use a hands-free device. The law itself states:

“A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.”

The law doesn’t state that a “device” must be used; it just needs to allow for hands-free listening and talking, and be used in that manner.

The second law is regarding those under the age of 18 and is discussed in the California Vehicle Code beginning at section 23124. This law prohibits drivers under the age of 18 from using a wireless telephone or a hands-free device while operating a motor vehicle. The law itself states:

“(a) This section applies to a person under the age of 18 years.
(b) Notwithstanding Section 23123, a person described in subdivision (a) shall not drive a motor vehicle while using a wireless telephone, even if equipped with a hands-free device, or while using a mobile service device.”
If the driver is a minor, they may not use a wireless phone at all, even if it is properly equipped with a hands-free device."

Also, here is a quick safety reminder about text messaging. The California Vehicle Code section 23123.5 states that no one can send, write, or read a text message at any time while driving a motor vehicle, regardless of age.

So for the answer to your question, according to a document from the California Highway Patrol that discusses cell phone frequently asked questions, if the driver is over 18, the law allows drivers to use the speaker phone function of the cell phone, as long as the driver is not holding the phone.

If you feel that you were using the phone in the proper manner, you may want to contest your citation. For more information, you may want to look at a book we have here in the law library called, “Fight Your Ticket and Win in California” published by Nolo Press. This book was written to assist average citizens in fighting their ticket, including how to properly prepare for trial. This book is available at the law library.

Ask the County Law Librarian - Parking Commercial Vehicles

2012-09-20T21:53:02Z

Q: I live in a neighborhood that has only been partially developed. There is a large area of land that has had residential streets and electrical work put in, but the homes have not been built yet. Some of the people in the neighborhood have started using the undeveloped residential streets to park or store heavy equipment, huge industrial-type trailers, and big-rigs. Sometimes it’s just overnight, other times they’re are being stored for days or weeks, sometimes unattached to a truck. Is this legal? If not, how do I report it so it stops?
- Eric

A:
Parking is governed by a variety of state, county, and city laws. State laws are very broad, such as prohibiting parking on bridges or in tunnels, or requiring you to park with your wheels less than 18 inches from the curb. The authority to make more specific laws, such as those related to time limits, permits, and parking zones, rests with city and county governments.

Whether city or county law applies depends on where the vehicle is parked. Vehicles parked within city limits or on city property are subject to city laws. Vehicles parked on county property or in unincorporated parts of the county are subject to county laws. It can be difficult to determine which laws apply. As a general rule, if the vehicle is parked on a street with a green street sign, it’s a city street; if the street sign is white, it’s a county street.

Sacramento City and County have enacted many similar parking ordinances. For example, a vehicle parked on a roadway for more than 72 hours is considered an abandoned vehicle, which is in violation of Sacramento County Code 10.24.070(b) and Sacramento City Code 10.36.080 A (1). Abandoned vehicles are subject to ticketing and towing.

Commercial vehicles, such as semi-trailers or tractor-trailers, are prohibited from parking on public streets in residential areas for more than one hour within a twenty-four hour period per Sacramento County Code 10.24.070 (h). Sacramento City Code similarly prohibits commercial vehicles from being parked on residential streets, except as necessary to deliver or pick up goods (Sacramento City Code 10.36.120).

There are many other parking laws that may apply in this situation. For example, under Sacramento County Code 10.24.070 (j), trailers and semi-trailers must be attached to a vehicle at all times when parked on public streets. You will want to check the city or county code, to determine what laws, if any, are being violated. Parking ordinances for the City of Sacramento can be found at http://tinyurl.com/8ag5xl9, and for Sacramento County at http://tinyurl.com/8ftpxbd.

To report an abandoned vehicle or other parking violation in the City of Sacramento, call 3-1-1 or fill out an online report. If you have an iPhone, there’s also a new app you can download.

For abandoned vehicles in Sacramento County, call 916-875-5656 or file a report online. Other parking violations should be reported to Sacramento County Parking Enforcement at (916) 876-6642 (see http://tinyurl.com/8bgxfyz for more information). Information reporting parking violations in other cities in Sacramento County is available online at http://www.sacta.org/p_savsa_procedures.html.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Starting a Home Based Bread Business

2012-09-14T18:18:43Z

Q. I am a pretty good baker and I have been told that I should sell my homemade bread to restaurants and specialty food stores. I know that there are regulations and laws that govern producing and selling food items. I also heard that that there is pending legislation regarding homemade items that could help me. Can you tell me what permits etc I might need to get started?

Stanley W.

A. A first step to starting a new business is to write a business plan. A business plan also acts as a guide to map out the course of the business. It helps to assess your needs including what permits and licenses are required.

The Greater Sacramento Small Business Development Center has numerous classes and counselors that can assist with drafting a business plan: www.sbdc.net

Next you want to determine your legal business structure because it affects your income taxes and level of personal liability. If your business is established as a corporation, S Corporation, limited liability company, or partnership you must register with the Secretary of State:http://www.sos.ca.gov/business/be/forms.htm. The Sacramento County Public Law Library has a number of books outlining the advantages and drawbacks of each legal structure.

If you give the business a name other than your own, you must file a Fictitious Business Name Statement with the Sacramento County Department of Finance Business License Section. You can research the name online. You do want to select a name that is unique and will not cause confusion in the market place or infringe on another business' trademark. Here is the link to the form.

Once you have registered your fictitious name the next step is to obtain a business operations tax certificate from the City. Home-based businesses, self-employed persons and independent contractors are also required to have a business operations tax certificate. Contact the City's Revenue division for the application and instructions.

There are additional permits/licenses with the CA Dept of Public Health such as the Processed Food Registration and perhaps the Organic Processed Product Registration.

Also since you are selling a tangible product you must apply for a Seller's Permit/Resale Number by contacting the State Board of Equalization.

Unfortunately, this is just the tip of the proverbial iceberg. You will also need to obtain an Employee Identification Number from the IRS. and there may be other permits or licenses that apply to your specific business visit: http://www.calgold.ca.gov/

On a happier note, there is a bill AB 1616 "California Homemade Food Act" that would change the CA Health and Safety code to give small-scale producers a way to break in to the food production business. Currently, it is illegal to sell foods not produced in a certified commercial kitchen. This bill would enable individuals to sell homemade foods that do not require refrigeration such as your baked goods. Such Cottage Food Laws exist in 33 other states. The text of the bill is here. For more information about this pending legislation: http://www.theselc.org/cottage-food-laws

Best wishes in your new endeavor!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian-Community Service for Parking Ticket

2012-09-07T15:30:52Z

Q: I got a parking ticket today for $407.50 which I simply cannot pay. I do not have any money and do not have a way to pay this ticket. How do I get community service granted to pay my fine?

Luis

A: That’s a high-priced parking ticket! Unfortunately there is no single answer to your question. You will need to contact the agency or city that gave you the ticket to find out what options they offer.

If this is in the City of Sacramento, the city does not offer any type of community service option. However, you can request to make payments instead of paying the entire sum at once. You can download the payment plan request form from the city’s website.: There is a $30 fee to set up a payment plan and the initial payment will be $38.

If you feel you have grounds to contest the citation (for instance, if you were ticketed for parking in a disabled spot without a placard, but you do in fact have a placard or were driving someone who does) you can learn more about that process at the city’s page on “Contesting a Parking Citation.” You can contest the ticket online or by mail. You should include your name, address, city, state, zip code, daytime phone number, citation date and number, location of the citation, violation code, and vehicle license number. If it is a meter-related citation, include the meter address and “PKGS” number located on the pole or on the Pay & Display kiosk, as applicable. Also include the reason you are contesting the citation, including any supporting documentation such as pictures or drawings.

For more information on how to contest a citation, we suggest reading “Fight Your Ticket and Win in California,” by Nolo Press, a publisher of self-help legal books.

If you disagree with the final decision made by the Parking Division, you have the right to an appeal. Contact the Sacramento County Superior Court for further information either by phone at 916-875-7800 or in person at the Carol Miller Justice Center. There is a $25.00 fee for each Parking Appeal filed with the court.

For more information on requesting a payment plan or contesting the ticket, visit the city’s parking website or call the city Revenue Department at 916-808-8500.

There are several other local agencies that issue tickets. Here is contact information for some of them:

• County of Sacramento - Parking Division (http://www.sacsheriff.com/organization/field_&_investigative_services/security_services_division/traffic_bureau/parking_enforcement/index.cfm)
903 Enterprise Drive
Sacramento, CA 95825
916-876-6642

• Los Rios Community College Parking
P.O. Box 2730
Huntington Beach, CA 92647-2730
800-898-2058 / 800-979-4447

• Parking Enforcement Center C.S.U.S.
P.O. Box 5010
San Ramon, CA 94583
800-281-2775
Information only call 916-278-7275

• University of California Davis Medical Center
Parking and Transportation Service
4800 2nd Ave., Suite 1100
Sacramento, CA 95817
916-734-2687

If you can’t get this cleared up, the DMV may block your car’s registration (Cal. Vehicle Code 4760) or your driver’s license (Cal. Vehicle Code 12808.1), so do try to get this taken care of. Best of luck!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - The Case of the Encroaching Bamboo

2012-08-30T20:07:28Z

Q. Hello Coral,

I am so glad to have found your website! I have tried to research this problem but have had no luck in resolving it. From reading your site, I have found my problem to be related to "Encroachment."

The problem is my neighbor's grove of bamboo shoots have started to infest my side of the fence, with their rhizomes roots sprouting and growing into bamboo shoots on both mine and their side of the fence. In a short amount of time, their bamboo grove has grown to about 20-30 ft tall. Even with the bamboo at that height, they are continuing to water it. On my side of the fence, there are multiple bamboo plants that have been shooting up to about 3 ft tall. I have been trying to control this problem by cutting the bamboo plant as they sprout up.

It seems we have may to seal off the area with concrete (?) to ensure that the bamboo plant does not come into our side of the fence. Cutting the bamboo plant cannot fix the problem because the way these roots grow, is they can grow in multiple directions and will continuously grow and grow. Because this particular plant can become so uncontrollable, certain states actually ban bamboos from being grown!

Also, since the plant is growing so high so fast, wouldn't the state or county have the right to request them to cut it down once it reaches a certain height?

Thanks in advance for your help!

I look forward to hearing from you.

Sandy

A. Thanks, Sandy! As you read in my article on “Neighbor Troubles,” published April 5, 2012:

Encroaching limbs and roots are generally considered a legal nuisance. As mentioned above, the injured party may start a civil action or abate the nuisance. “Abating the nuisance” of encroaching limbs and roots usually means that you can trim them back to the property line, as long as you do not cause unnecessary injury to the plant, or enter the neighboring property without permission. Without permission, it is considered trespassing. More information about encroaching trees and vegetation can be found in Neighbor Law: Fences, Trees, Boundaries & Noise from Nolo Press.

So it looks like you could seal off the area with concrete as long as you did not harm the neighbor’s bamboo plant.

As for limiting the height of the bamboo, Chapter 4 of Neighbor Law, titled "Encroachment: Invading Branches and Roots," states on page 73 that “[w]hen trees are planted close together and used as a barrier, they are natural fences and may be subject to local laws regulating fences. Fence laws can govern the height allowed and also the location of fences on property.”

California Civil Code § 841.4 provides:

Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.

“Title 3, Part 3, Division 4 of this code” is § 3501, which provides that “the remedies against a private nuisance are: 1. A civil action; or, 2. Abatement.”

You may wish to read Wilson v. Handley, 97 Cal. App. 4th 1301 (2002), which discusses all of the elements of the statute, including whether a row of trees can be a "structure in the nature of a fence," whether a particular fence “unnecessarily exceeds” 10 feet in height, and whether the dominant purpose of erecting a particular fence is to annoy a neighbor so as to satisfy the “malice” element of the statute.

You did not say where you are located, but you should check your county and city’s ordinances to see whether they have any height restrictions on fences or any prohibition against bamboo. For example, the Sacramento City Code provides in § 9.16.070 that “[n]o person shall maliciously erect or maintain in the city, for the purpose of annoying the owners or occupants of adjoining property, any fence or other structure in the nature of a fence unnecessarily, exceeding six feet in height.” There do not appear to be any restrictions on fence height in the Sacramento County Code, but you should always check.

Good luck, and thanks for reading!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Points and Driver's License Suspension

2012-08-23T23:12:37Z

Q. I want to know if you will immediately lose your driver’s license if you get three tickets in a relatively short period of time (or what the time period is, if there is one), or if that is optional on the part of the DMV.

A. As with many legal questions, the answer to your question depends on a couple of factors, such as the type(s) of traffic citations you receive and the window of time in which you receive them. For questions relating to driver licensing in California, the current California Driver Handbook is the best place to start your research. The 2012 Driver Handbook is available online at the California Department of Motor Vehicles (DMV) web site www.dmv.ca.gov. To access the publication in PDF or HTML formats, select the Licensing tab, and then select Publications.

According to page 86 of the Handbook, the DMV will keep track of a driver’s points for 36 months or longer, depending on the type of citations received. Traffic citations will vary in point values, so it is important to note which citations you’ve received and what they’re worth in points. For reference, traffic convictions such as speeding violations are worth one point each, whereas more serious violations like reckless driving are worth two points.

Once you’ve calculated your point total, you should look at the dates on which you received them. The DMV considers drivers negligent if they have accumulated either a) 4 points in 12 months; b) 6 points in 24 months, or c) 8 points in 36 months. If you qualify as a negligent driver under the DMV’s regulations, you will probably know it: the DMV sends out warning letters and possibly further sanctions to drivers who fit the criteria above.

Will you lose your driver’s license in all of the point-count situations above? According to page 87 of the Handbook, “if you get 4 points in 12 months, you will lose your license.” This statement seems pretty straightforward. However, the Handbook does not address the remaining point counts in regard to license suspension, so if you have further questions we suggest speaking to someone from the DMV. You can find contact information here: http://www.dmv.ca.gov/contacts/contacts.htm

For information on how to contest a citation, we suggest reading “Fight Your Ticket and Win in California,” by Nolo Press, a publisher of self-help legal books.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian: Advanced Health Care Directive

2012-08-16T21:35:28Z

Q: My best friend of over thirty years recently lost her battle with cancer and it was very hard for me to not only lose her, but to have to watch her children make heartbreaking final decisions. I want to know what I can do now so that my kids won’t ever have to decide to pull the plug if something happens to me.

Angela

A: It is always hard to lose a close friend. If your friend had planned ahead and had something called an Advance Health Care Directive, it may have made her final moments a bit easier for her family, but there is still time for you to plan ahead.

California law provides individuals the ability to insure that their health care wishes are known and considered if they become unable to make these decisions themselves. In Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 1990, the Unites States Supreme Court ruled that “clear and convincing” evidence of an individual’s wishes about medical care should be followed, even if they conflict with the wishes of close family members.

An Advance Health Care Directive enables individuals to write out specific instructions that describe the medical care they do or do not want to receive if for any reason they are incapacitated and unable to speak for themselves. It also allows a patient to appoint a health care "agent" who will have legal authority to make health care decisions. Be sure to name someone that you trust, because they will supervise your wishes and will direct your healthcare decisions in any situations that are not specifically covered in your written Advance Health Care Directive. Also in your directive you can name a primary care physician or state whether you wish to donate any organs or body parts after your death.

A person who has executed an Advance Health Care Directive may register that information with the California Secretary of State. The information is given to the registrant’s healthcare provider, public guardian, or legal representative upon request. You should also provide a copy of your directive to your physician, health care providers, hospital or other health care institution that is providing your care, family members, and the person you appoint as your agent.

The law library has several books available on this topic, including a very popular book Living Wills & Powers of Attorney for California published by Nolo Press. Our librarians have created a Legal Research Guide on this topic available on our website. When looking to draft your Advanced Health Care Directive, there is not one standard form available, although most samples and templates will be very similar to each other. We have a sample available on our website at www.saclaw.org that can be edited. The Office of the Attorney General has a fillable version that can be printed. The California Medical Association publishes an Advance Health Care Directive kit which includes forms and wallet cards. These kits are available online for purchase starting at $6.00 at www.cmanet.org . General information about Advance Health Care Directives is available from the California Attorney General’s Office .

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Ask the Law Librarian - Real Estate Liens

2012-08-09T21:54:56Z

Q: I loaned a friend some money last year. He lost his job, and now he’s not paying me back. I want to put a lien on his house, because he owes me a lot of money. How can I do that?
- Rich W.

A: There are numerous types of liens available under California law. Some may be placed on the property with the property owner’s consent, such as a mortgage. Most other types are placed without consent. There are too many types of involuntary liens to list here, but a few common examples are mechanics’ liens placed by contractor who has not been paid for materials or work done on a property; tax liens placed by the government for nonpayment of taxes; judgment liens placed by a judgment creditor when they win a lawsuit.

If your friend will agree to you placing a lien on his property, you may be able to do so using a Promissory Note and Deed of Trust. You can find information about that process, as well as samples of both documents, on the Law Library’s website.

If your friend will not voluntarily have a lien placed on his property, you will need to file a lawsuit against him for breach of contract. California law does not provide for an automatic lien in situations such as yours. If you are owed less than $10,000 (or are willing to accept only $10,000), you can file your case in the small claims court, where you will find your case is resolved quickly and inexpensively. Information about small claims court is available from both the California Courts self-help website and the Sacramento County Superior Court’s website. We also have an excellent book, Everybody’s Guide to Small Claims Court in California from Nolo Press that provides instructions and sample forms.

If you are owed more than $10,000, you will need to bring your case in the superior court, rather than small claims court. Information about starting a civil case is available from California Courts self-help website, as well as the Law Library’s website. We also have an excellent book, Win Your Lawsuit from Nolo Press that provides instructions and sample forms.

If you are successful in winning your lawsuit, the court will issue a judgment in the amount owed. You can use this judgment to obtain an “abstract of judgment” from the court. This is the document that will be recorded with the county to create the lien on the property. More information about this process, along with samples and step-by-step instructions for completing the forms, is available from the Law Library’s website.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask The County Law Librarian - What is a Class Action?

2012-08-03T22:18:26Z

Q. I have received an email regarding a Class Action Settlement against a company I have done business with. It give dates to "Opt Out and Objection Deadlines" plus a Final Approval Hearing Date.

What is a Class Action and is this email legit?

Darryl H.

A. In a class action lawsuit, one or more people called “Class Representatives” sue on behalf of people whom they allege have similar claims. The people together are a “Class” or “Class Members.”

In a class action, one court decides the result of the lawsuit for everyone in the Class. The court in this case has made a preliminary determination that, for settlement purposes only, this case can proceed as class action.

Plaintiffs have made claims against the Defendants. The Defendants deny that they have done anything wrong or illegal and admit no liability. The Court has not made any determination regarding the Class Representatives’ claims, and by requiring this Notice, the Court expresses no opinion regarding liability. Plaintiffs and Defendants met with a mediator and have agreed to the Settlement in order to avoid the costs and risks of a trial and appeal.

Unless you affirmatively choose not to participate in the Settlement (which is called “excluding yourself” or “opting out”), you are part of the class. By staying part of the class, court orders will apply to you, and you will give the Defendant a “release.” A release means that you cannot sue or be part of any other lawsuit against the Defendant about the claims or issues raised in this litigation ever again.

It is up to the Court to decide how much Class Counsel and the Class Representatives will receive. This request will be made to the Court as part of the final approval process. A copy of Class Counsel’s motion for attorneys’ fees, costs, and incentive award will be posted on the Settlement website. All attorney’s fees and costs and incentive awards will be paid from the Settlement Fund.

One source of legal news to see if your email is "legit" is a website that lists many Class Actions and Class Action Settlements providing some basic information as to nature of the lawsuit: http://www.lawyersandsettlements.com/

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian: I Need an Annulment!

2012-07-26T23:13:42Z

Q. Three weeks ago I got married to my girlfriend, “Ruby.” As soon we got married, I knew it was a big mistake. How do I get the marriage annulled? I just want out! -Bill

A. I’m sorry to hear about your troubles. And I’m sorry to have to tell you that you probably can’t get an annulment (which California calls “nullity of marriage”). The good news is you may qualify for a “summary dissolution,” which is a quicker, easier way to get divorced than the standard dissolution process.

People often think that annulments can be used to “cancel” any very short marriage. In California, however, annulment is totally unrelated to the length of the marriage. It’s only available when the marriage itself is legally invalid. (California Family Code sections 2200-2201 and 2210-2212.) It’s also actually harder to get than a regular divorce, although it can be quicker.

Incestuous or bigamous marriages are “void,” since they are illegal. A few other categories of marriages are “voidable.” If the marriage took place when one spouse was under 18, of unsound mind, or permanently “physically incapable of entering into the marriage state” (that is, unable to have sex), it can be annulled. If a missing-or-presumed-dead spouse shows up after the marriage, any of the three parties can petition for annulment. If consent of one spouse was obtained by fraud or force, the innocent spouse can seek an annulment.

Fraud may seem promising. Unfortunately, “she was sweet before we married, but then turned into a witch” doesn’t count as fraud. Most of the cases of fraud involve sex, fidelity and procreation. For instance, fraud has been found when a spouse never intended to consummate the marriage, or falsely claimed to be fertile. In one case, the court found fraud when, at the time of marriage, the husband fully intended to continue his ongoing affair with his wife’s sister. In re Marriage of Ramirez, 165 Cal.App.4th 751 (2008).
A spouse who hides a drunken, lazy, slovenly true nature until after the wedding isn’t committing fraud. In re Marriage of Johnston, 18 Cal. App. 4th 499 (1993). Even outright lying about one’s ability to support a family doesn’t count as fraud. Marshall v. Marshall, 212 Cal. 736 (1931).

So, it’s very rare to meet the conditions for annulment. It’s also a bit more complicated than a regular divorce, since you may need to give the judge evidence that the marriage is invalid. The main practical advantage is that annulment becomes final as soon as the judge signs the order; a standard dissolution has a six-month minimum wait. It can also be important to someone to erase the marriage completely, for personal, legal, or religious reasons. Unless you have a very good reason, it’s probably easier to get a divorce.

The good news is you may qualify for a “summary dissolution,” which is a streamlined, simpler way to get a divorce. If you have been married less than five years, don’t have kids, and have limited assets and debts (including no real estate), you may qualify. Both parties have agree and to sign the petition, and there is a set of forms to fill out, but no hearings will be required and the divorce should become final six months after you file. Vist the California Court's Self-Help website to figure out if this is the right option for you.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - How to Set Aside a Default Judgment in Sacramento County Superior Court

2012-07-19T18:48:28Z

Q. I was on a year-long trip to Costa Rica, and when I came back I found that a “default judgment” had been entered against me in Sacramento County Superior Court. It says I owe $25,000 to this guy who did some work for me in 2006! What is a “default judgment” and how do I fight it? I want my day in court!

Nora

A. When a defendant is served with a Summons and Complaint, the defendant has a limited amount of time (typically 30 days) in which to respond to the lawsuit. If a defendant fails to respond, the plaintiff may ask the court to enter a “default judgment” against the defendant. California Code of Civil Procedure (CCP) sections 473(b), 473(d), and 473.5 specify the most common grounds upon which you can base a motion for relief of default or default judgment. These grounds include: Inadvertence, Surprise, Mistake, or Excusable Neglect (CCP 473(b)); Party not given “actual notice” in time to defend (CCP 473.5); and Void Judgments (CCP 473(d)). It is possible that you may granted relief under any or all of these sections: You were in Costa Rica, so the Inadvertence, Surprise, Mistake, or Excusable Neglect section may apply. You may also not have received “actual notice” in time to respond. It is also possible that the plaintiff’s claim may be barred by the statute of limitations, and therefore void. You need to research these code sections very carefully, and the appicable statute(s) of limitation(s) and apply them to the facts of you situation.

A request to set aside a default is made through a motion. A “motion” is a request made in a case asking the court to issue an order of some sort. Most motions are in writing. With few exceptions (such as in family law cases), there is no Judicial Council form for making a motion. Instead, the motion must be typed on 28-line pleading paper. A written motion consists of four parts: Notice of Motion; Motion; Points and Authorities; and Declaration. Luckily, the Sacramento County Public Law Library has created a Step-by-Step Guide to Setting Aside a Default Judgment, complete with step-by-step instructions and sample forms that you may use for guidance in completing our down-loadable template, available on our website at http://www.saclaw.org/pages/motion-relief-default.aspx . There are very tricky requirements for choosing the date to hear your motion in time to meet both service and filing deadlines, so read the Step-by-Step very carefully before starting to fill out the forms!

When you file your motion, which must include a copy of your proposed responsive pleading (most likely an Answer, see “Responding to a Lawsuit” on our website at http://www.saclaw.org/pages/responding-lawsuit.aspx) attached as an exhibit, you must pay a first appearance fee of $435. The plaintiff may file an opposition to your motion, and you may file an opposition to his opposition. You should be sure to check the Court’s website the day before the scheduled hearing because the Court will make a “Tentative Ruling” that will become the order of the court if you or the plaintiff don’t contact the court and all other parties (and their attorneys, if any) to ask for an actual hearing on your motion to be held before the judge. For more information on Tentative Rulings, see the Legal Resource Guide on the topic on our website at http://www.saclaw.org/pages/tentative-rulings.aspx .

I hope this helps, and that you had a great time in Costa Rica!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian-Smoke Detectors and Carbon Monoxide Devices

2012-07-12T23:20:34Z

Q. I bought a condominium built in 1985 in L.A. County and will be renting it. Do I need to have my contractors hard wire the smoke detectors, or can I use battery-operated smoke detectors?

-Teresa

A. This is a great question, and one that may have different answers depending on the municipality in which the condo is located. First, for some background information on California’s laws and regulations regarding smoke detectors, please read our October 7, 2010 column “California Smoke Detector Laws.”

Your residence, a condominium, is included in the California Health and Safety Code’s definition of “dwelling units intended for human occupancy”, among other types of buildings. Section 13113.7 of the California Health and Safety Code addresses the requirements for this type of dwelling and states that “unless prohibited by local rules, regulations, or ordinances, a battery-operated smoke detector, which otherwise meets the standards adopted pursuant to Section 13114 for smoke detectors, satisfies the requirements of this section.”

However, if your condo has had any construction work costing more than $1,000 and for which a permit was required, your smoke detectors may need to be hard-wired with a battery backup, as required by the California Building Code. To conduct more research, consult the California Building Code, Chapter 9: Fire Protection Systems, Section 907.2.11.4. The California Building Code is not available for free online, but you can find it in print at your local county public law library. To find the law library nearest you, go to www.publiclawlibrary.org.

In addition to California’s laws and regulations, you’ll want to consult both your county and municipal codes that might impose more specific requirements or guidelines. For example, the Los Angeles Municipal Code Section 91.8603 requires that smoke detectors in two-family dwellings, condominiums, and apartments be hard-wired and also equipped with a battery backup, while single-family residences require only battery-operated smoke detectors. This code applies to buildings within the city limits of Los Angeles, so if your condo is located elsewhere please consult the appropriate city code. To research local rules or ordinances, try contacting the local department of building and safety or the Office of the Clerk. You can visit a California County Public Law Library for print and online access to the state code and regulations; they are also available online at www.leginfo.ca.gov/ and www.calregs.com.

Also, remember that on January 1, 2013, carbon monoxide detectors are required in all dwelling units, including condominiums. This law took effect for single-family residences in 2011 and will apply to all other dwellings beginning in 2013. You can read the bill, SB-183, and find answers to commonly-asked questions provided by the California State Fire Marshal.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Time Limits for Return of Security Deposit

2012-07-05T19:49:46Z

Q-
Hello! I actually have several questions:

1. I moved out of my old apartment complex over 6 months ago. I didn't get a chance to sue them for my deposit. Is there a time limit?

2. I'm on the SHRA voucher. They still denied they over charged me. I'm have been retaliated against via gang stalking and attempts to run me over on 3 different occasion by management and employees. I resigned my lease several times and was never given an explanation. When I refused to do again, the manager got other tenants and kids to harass me including her own. I brought all this up to the property management and more via certified mail. He didn't address my issues but focused on coercing me to pay $500 extra besides my section 8 portion. I've sent them emails requesting this back via email and attached a pdf of proof. They claim they have no record of it. My question, sorry, do I have to wait to move out of this apartment complex to file a small claims against them? Can I sue them for not just the $500 but also for denying my right to quiet enjoyment and nuisance?

Thank you in advance.

Ta N.

A-
Thank you for your question; hope you had a fun and safe holiday!

For the first question, the statute of limitations or time limit for suing the landlord for return of the security deposit depends on what type of lease you had with the landlord. If your rental agreement is oral, according to the California Code of Civil Procedure §339.5, you must file your lawsuit against the landlord within two years. However, according to the California Code of Civil Procedure §337(1), 337.2, and 343, if you have a written lease, you have four years to file your lawsuit.

Regardless of which type of lease you had, if you intend to file a lawsuit, you should file it promptly as judges tend to be less sympathetic towards old disputes.

As for your second issue, if you feel like you are in danger or are being harassed, and you have a safe place to go, you may want to think about moving out now and then starting your small claims case. If you are a current tenant and you file suit, the intimidation and harassment may increase. If you feel you are being unfairly discriminated against, you may want to file a complaint with the Department of Fair Employment and Housing. You may also want to consider a restraining order against the other tenants if they are continually harassing you. The law library has a Research Guide on this topic.

For more information on suing in Small Claims, take a look our previous Sacramento Press article on this topic.

Ask The County Law Librarian - Dangerous Buildings

2012-06-28T17:16:55Z

Q. I live in the City of Sacramento and my neighbor's house was tagged as a Dangerous Building and all the doors and windows have been boarded. What is going to happen to this home?

Bruce M.

A. Building owners are legally required to maintain their property to the standards set forth in the City Housing and Dangerous Building Codes (Sacramento City Code Title 8 Chapter 8.100)

According to the City's website common code violations are:
• Ceilings, roofs, vertical supports or other horizontal support that sag, split or buckle.
• Plumbing, electrical or mechanical hazards creating a danger to human health.
• Excessive infestations of rodents, cockroaches or other vector violations.
• Unsafe electrical outlets which present a clear and present danger of fire or electrocution.
• Un-inhabitable buildings due to a lack of care, cleanliness, or sanitary conditions.
• Defective or inadequate weather protection of exterior walls.

When a building official has inspected a home and determined that the building is substandard, the building official commences proceedings to require the repair, rehabilitation, vacation, or demolition of the building. (Sacramento City Code 8.100.700)
The owner has 30 days to start the repair or rehabilitation. At this website you can search by address and review the list of violations and the case history.

Failure to comply can result in civil and criminal penalties and even result in the building being demolished.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian: Adding Kids to the Title on Your House

2012-06-14T22:30:35Z

Q. I’m trying to make things as easy as possible after I’m gone. Someone told me I should add my kids to the title on my house to avoid probate. How can I do this?

A. We get this question on a regular basis. This is one of those times when it’s hard to know exactly how to answer. The answer the patron wants is pretty straightforward. You can do it by signing a grant deed transferring ownership from you (as sole owner) to you and each of your children (as joint tenants with right of survivorship). The Nolo Press book “Deeds for California Real Estate” has samples and instructions, and it’s right behind the reference desk. The problem is, adding a child’s name to a deed can be a pretty bad idea.

Usually people hope that adding their children to the title of their home will make it easier for the kids to inherit when they pass away, and let them avoid a lengthy and expensive probate. This works well for bank accounts, but it’s a problematic way to transfer a home. Most of the time, putting the house in a trust is a better option.

If you add your kids to the title, each of them becomes a full, legal owner immediately. This causes all kinds of complications.

A common problem, especially in this economy, is that if any of the kids gets into financial trouble, their creditors can put liens on the house. (16 Cal. Jur. 3d Cotenancy and Joint Ownership § 29.) These liens make it harder to sell the house and can affect all co-owners’ credit ratings.

The Nolo Press blog “Ask Liza: Everyday Estate Planning” discusses this problem in two helpful posts: “Should I add my son to the title of my house?” (April 2, 2012) and “Adding Names to House Title” (Dec. 31, 2010). Author Liza Weiman Hanks explains that there are other disadvantages too:

Your kids will pay more tax. If you add them while you are alive, it is treated as a gift. As a result, they receive their share with a capital gains tax basis of what you originally paid for that house. If it’s worth more now than when you bought it, they’ll owe capital gains taxes on the increase if they ever sell it. (If they inherit it instead, they don't have to pay those capital gains.)
Your taxes will be more complicated next year. You are making taxable gifts to your children of portions of the value of the house. If any portion is worth more than $13,000 you must report it to the IRS, and it counts toward your lifetime total tax-free gift limit.
There may also be other tax consequences.
Your Medicaid eligibility could be affected under certain circumstances.

If any family disputes arise, or if any of the kids is less than trustworthy, you and your home may be directly affected. Remember, each child is a full legal owner—you can’t change your mind later if problems arise. Any or all of the new owners can move in to your house, get a mortgage, rent it out, or even sell his or her interest without permission—even while you’re still living there. If your family all get along, you may think this is highly unlikely—and you’re probably right—but sadly we see quite a few siblings caught up in court cases about this type of dispute.

A trust is a bit more complicated to set up. But it lets you maintain control of your home while you live, while still passing the house (and your other assets) to your kids without probate. You can find out more about creating a living trust at the law library, or consult an attorney.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Are Tinted License Plate Covers Legal in California?

2012-06-08T17:55:36Z

Q. Are tinted license plate covers legal in California? I have a friend who got a fix-it ticket for having one, but it is different from mine—his is sort of a bubble over the plate, which makes it harder to read, but mine is flat and lightly tinted. Should I be worried?
Paul

A. I would be if I were you. According to California Vehicle Code § 5201 (f)(2), which provides that “a covering shall not be used on license plates except as follows:”

The installation of a license plate security cover is not a violation of this subdivision if the device does not obstruct or impair the recognition of the license plate information, including, but not limited to, the issuing state, license plate number, and registration tabs, and the cover is limited to the area directly over the top of the registration tabs. No portion of a license plate security cover shall rest over the license plate number.

Whether the plate cover “obstructs or impairs” recognition of the license information is in the opinion of the officer who stops you for such an offense.

In addition, California Vehicle Code § 5201(g) prohibits any:

[C]asing, shield, frame, border, product, or other device that obstructs or impairs the reading or recognition of a license plate by an electronic device operated by state or local law enforcement, an electronic device operated in connection with a toll road, high-occupancy toll lane, toll bridge, or other toll facility, or a remote emission sensing device . . .

So . . . if you must have a license plate cover, I would explore the non-tinted options. And, as always, let's be careful out there!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Attorneys' Fees

2012-05-31T19:20:44Z

Q: I need an attorney to see my mother’s estate through probate, but I’m not sure if I can afford one. Is there an easy way to figure out the average cost of an attorney before meeting for a consultation with each potential candidate? I guess I’m wondering if they can give this information on their websites or over the phone.

-Ben

A: Attorneys’ fees will vary depending on several factors, including the type of case, the jurisdiction or geographical region in which it is based (those in cities may charge more than those in rural areas), and the experience or prestige of the firm or the attorney. Attorneys’ fees cover the legal services that are performed by attorneys on behalf of their clients, and usually a discussion of costs is reserved for the initial consultation. In the consultation, an attorney will get the necessary details of your case to determine a) if she will agree to represent you, and b) approximately how much time and money your case will require.

An attorney's fees may be an hourly, flat (for a particular “bundle” of services, like handling an eviction for $5,000) or contingent fee (a percentage of the client's recovery, e.g. 33% in a tort case). Generally, the attorney's fees are set at the discretion of the attorney himself or negotiated with the client, but in certain types of cases fees are determined by statute or a court. Many people also have their attorneys on retainer, having paid a certain amount as a down payment for future services. In a lawsuit, it’s possible to recover attorneys’ fees from the opposing party in the event that you win your case, which means that the amount you owe your attorney will be added to what you asked for in damages. Some contracts also include a provision that states the loser of a lawsuit between the parties to the contract will pay the winner's attorney fees.

For probate cases in California, the legislature has set maximum statutory fees that attorneys can charge to probate an estate, although a court can order a higher fee if the case was particularly complex. California Probate Code Section 10810 lists the fee awards at: four percent of the first $100,000 of the estate; three percent of the next $100,000; two percent of the next $800,000; one percent of the next $9,000,000; and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine attorneys’ fees. The value of the estate is determined, in general, by the inventory for the estate. For further information, please read Division 6, Part 7 of the Probate Code “Compensation of Personal Representative and Attorney for the Personal Representative.”

Many people choose to handle a probate case themselves, and in cases in which the estate value is $150,000 or less, probate may not be required. To read more information on how to do probate an estate without an attorney, I recommend reading “How to Probate an Estate in California” published by Nolo Press. For advice on how to choose an attorney, you can read our earlier column from September 2010, “How to Find a Lawyer.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - California Divorce Residency Requirements

2012-05-24T21:21:57Z

Q: My husband and I recently moved to Sacramento from Reno, and now that we live here, we want to get divorced. Do we need to file for divorce in Reno, where we got married, or can we file in California?

Melissa

A: Sorry to hear about your situation. Moving to a new city and all of the changes that come with it can really put stress on a marriage.

According to the California Courts Self-Help website, California has jurisdiction over a marriage, and the power to dissolve it, only if at least one spouse has lived in California for a certain period of time. Either you or your spouse must have lived in California for at least six months, and in the county where you plan to file your papers for at least three months, prior to filing a Petition for Dissolution. If you and your spouse have lived in California for at least six months, but in different counties for at least three months, either of you can file in either county.

If you do not meet the residency requirements for a divorce, you can still file for a legal separation. Then, once the requisite time has passed so that you do meet the residency requirements, you may file an “amended petition” and ask the court for a divorce.

A really good self-help book that discusses divorce in California is “How to Do Your Own Divorce in California,” published by Nolo Press. This book will take you step-by-step through the process, and includes sample forms and instructions. We have this book at the Law Library. It is also available for purchase directly from the publishers’ website at www.nolo.com.

The Family Law Facilitator in the Self-Help Center located at the William R. Ridgeway Family Relations Courthouse on Power Inn Road may be able to help you get started with your divorce. Every court in California has a Family Law Facilitator, a lawyer that can help you with your family law problems for free. The Facilitators can't represent you in court, but they can help you in many other ways. For example, they can instruct you on which court forms to use to get a divorce, and how to complete them. The Family Law Self-Help Center is open Monday through Thursday from 8:30 a.m. to 4:00 p.m., excluding court holidays. Because help is provided on a first-come, first-served, walk-in basis, it is best to arrive early. Alternatively, you could use their new "E-Correspondence" service, and ask questions and receive answers via secure email.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Termination of Parental Rights

2012-05-17T21:56:24Z

Q:
My ex has only seen our son a few times over the past six years, which is fine by me because he’s a bad influence. He’s also way behind on child support, which is fine. I don’t need his money - I can support my son by myself. My ex says he wants to give up his parental rights, in exchange for me dropping support. Can we do this? I’d be more comfortable knowing my son won’t be taken away if his father suddenly decides he wants custody in the future.

Kristina

A parent cannot simply give up their parental rights to avoid paying child support or to solve visitation or custody disputes. Only the court can terminate parental rights. Termination of parental rights is a court order that permanently severs the legal parent-child relationship. This type of order is most commonly made:

1. In cases where the court finds the parents unfit because of abuse, neglect or abandonment, or because of the parent’s mental or physical incapacity.

2. In cases of adoption where the parental rights of one or both parents are terminated so that new parents may acquire those rights.

Parental rights can be terminated in other situations, but those are much less common. The court can only terminate the parental rights if it is in the child’s best interests. Termination is not usually in the child’s best interests, because terminating parental rights also terminates parental responsibilities such as child support. Although a parent may not be currently paying child support, as long as parental rights are intact, the legal obligation remains (Family Code 3900 et seq). The custodial parent or Department of Child Support Services can pursue a support order at any time. This is a financial safety net for the child. Unless the continuation of parental rights is a detriment to the child, the court is unlikely to eliminate the potential for future support.

Arrangements such as the one your ex suggested are prohibited by California law. Numerous courts have ruled that parents cannot agree to terminate a minor’s right to support (for example, see County of Shasta v. Caruthers, 31 Cal.App.4th 1838, and County of Orange v. Smith, 96 Cal.App.4th 955).

Courts have also ruled that parents may not ask the court to approve an agreement to terminate parental rights simply to guarantee that contact with the child and support obligations are both prevented in the future. In Kristine M. v. David P., 135 Cal App 4th 783, the court denied this type of motion, because “Public policy intervenes to protect the child's continued right to support. A judgment so terminating parental rights and the attendant obligation to support the child is void as a breach of public policy and as an act in excess of the court's jurisdiction.”

www.saclaw.org

Swine License

2012-05-10T17:39:49Z

Q. I have a male pot belly pig who is almost a year old and weighs about 90lbs. I take Mr. Wiggly out for walks in my midtown neighborhood. Yesterday a City Animal Control officer gave me a ticket for not having a swine license! I know I have to have my dog licensed but I have never heard of a swine license. I was also told Mr. Wiggly needs to be neutered before I can get a license. Do you have information on this?

Peter K.

A. Miniature pot-bellied pigs are increasing in popularity as domesticated pets. However, as such animals are still livestock notwithstanding size, and like other pets need to be controlled to insure that such animal does not become a nuisance or danger to the general public and the neighborhood in which it is kept.

The Sacramento City Code Section 9.44.320 states that swine can be no larger than 22 inches at the shoulder and that the animal cannot weigh more than 150lbs. It also notices the requirement for neutering male pigs over the age of four weeks.

The license cost is the same as a dog $15 and it is good for 3 years Sacramento City Code Section 9.44.570. This provision also allows for the animal care service manager to waive delinquency fees for up to one month per year to encourage people to obtain swine licenses. A metallic or plastic identification tag will be issued and the owner is required to put the tag on a collar which the pig will wear section 9.44.600 .

To find out more about pot belly pigs and their care and maintenance visit: California Pot Belly Pig Association.

Take care Mr. Wiggly!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian--Does "no pets" policy apply to service dog?

2012-04-26T23:47:53Z

Q. As a landlord, I have a strict “no pets” policy. A prospective tenant says they have a certified service animal. All other qualifications being met, am I required to accommodate them?

Thanks, Frank

A. Most likely, yes. The Federal Fair Housing Act (FHA) requires property owners to make reasonable accommodations for a person with a disability, to enable them to enjoy the residence on an equal basis with tenants who are not disabled. 42 U.S.C. § 3604(f)(3)(B). Regulations promulgated under the FHA state that “[i]t shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common areas.” 24 CFR § 100.204(a). The regulations provide examples of their application; the illustration of an owner’s failure to make necessary and reasonable accommodations involves the application of a “no pets” policy similar to your own:

A blind applicant for rental housing wants to live in a dwelling unit with a seeing eye dog. The building has a no pets policy. It is a violation…for the owner or manager… to refuse to permit the applicant to live in the apartment with a seeing eye dog because without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling. 24 CFR §100.204(b).

Although your rental unit may not be covered by the FHA (section 3603 provides that the Act applies to dwellings owned or operated by the federal government; dwellings provided in whole or in part with the aid of loans, advances, grants, or contributions made by the federal government; and dwellings provided in whole or in part by loans insured, guaranteed, or otherwise secured by the credit of the federal government), it is almost certainly covered by California law.

California has several laws that might require you to rent to a disabled person with a service animal despite a “no pets” policy. California’s fair housing laws, the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act, cover “the owner of any housing accommodation,” and “all business establishments of every kind whatsoever,” respectively. The FEHA has two exceptions: one for renting a portion of an owner-occupied single-family home to one person (Government Code § 12927(c)(2)(a)), and one for religious organizations giving preference to persons of the same religion, unless membership in that religion is restricted on account of race, color, or national origin. (Government Code § 12955.4).

Both Acts mirror the language of the FHA: “Any person renting, leasing, or otherwise providing real property for compensation shall not refuse to make reasonable accommodations in rules, policies, practices, or services, when those accommodations may be necessary to afford individuals with a disability equal opportunity to use and enjoy the premises,” (California Civil Code §54.1(b)(3)(A)); “discrimination includes refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling” (California Government Code § 12927).

In addition, Civil Code § 54.1(b)(6)(A) specifically addresses the issue of disabled tenants with service dogs:

It shall be deemed a denial of equal access to housing accommodations within the meaning of this subdivision for any person, firm, or corporation to refuse to lease or rent housing accommodations to an individual who is blind or visually impaired on the basis that the individual uses the services of a guide dog, an individual who is deaf or hearing impaired on the basis that the individual uses the services of a signal dog, or to an individual with any other disability on the basis that the individual uses the services of a service dog, or to refuse to permit such an individual who is blind or visually impaired to keep a guide dog, an individual who is deaf or hearing impaired to keep a signal dog, or an individual with any other disability to keep a service dog on the premises.

So, it looks like you will have to bend your “no pets” rule to allow the service dog as a reasonable accommodation to the disabled tenant. Luckily, however, Civil Code § 54.1(b)(6)(B) provides that:

Except in the normal performance of duty as a mobility or signal aid, nothing contained in this paragraph shall be construed to prevent the owner of a housing accommodation from establishing terms in a lease or rental agreement that reasonably regulate the presence of guide dogs, signal dogs, or service dogs on the premises of a housing accommodation, nor shall this paragraph be construed to relieve a tenant from any liability otherwise imposed by law for real and personal property damages caused by such a dog when proof of the same exists.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the Law Librarian - Statute of Limitations on Co-Signing of a Loan

2012-04-19T23:10:36Z

Q: In 2000, I co-signed for a close friend to get a cell phone (I believe that I also paid three hundred dollar deposit). Apparently, in November 2011, his service was terminated (we are estranged, so this is the most information I could get from AT&T). When I called in March 2012, to add a new AT&T internet service, I was declined and informed of this issue. The amount that is owed is over seventeen hundred dollars - I am assuming that the majority of that is termination fees.

AT&T wants me to file a fraud report for identity theft (?) with them and our local police so that they may start an investigation that would then hold me "harmless" for the debt incurred. This does not make any sense to me. I was never contacted regarding this debt or the status of my friend's account at any time for the last twelve years; leading me to believe that everything was fine

Isn't there some type of statute of limitation on co-signing that should expire if you are not notified about any irregularities from the creditor for TWELVE YEARS? Any information that you can provide will be greatly appreciated.

-Marlene

A: Last year we received a similar letter from a woman who had co-signed her sister’s car loan and was concerned about being responsible for the payments. I recommend reading this column for information regarding your rights and responsibilities as a co-signer, as it may answer some of your initial questions.

And you are correct that there may be an issue involving the statute of limitation for written contracts. The California Code of Civil Procedure Section 337 states that parties have four years from the date of breach in which to begin an action involving “any contract…founded upon an instrument in writing...” The statute’s application begins at the date of breach (however there are exceptions, as with most things in law) which may have occurred within the last four years. You can ask AT&T to validate the debt, which would give you the payment history and the most recent missed payments.

The passing of the statute of limitations does not preclude the creditor from trying to collect the debt, which may include filing a lawsuit against you. Rather, the statute of limitations is an affirmative defense used in trial to have the case dismissed. If the defense is raised in a timely and proper manner by the defendant, the case might be thrown out. The statute of limitations defense is by no means fool-proof given the complexities of this area of law, and I recommend consulting an attorney or visiting the local public law library to conduct further research. To find the law library nearest you, visit www.publiclawlibrary.org.

Finally, regarding the issue of identity theft: if indeed you know that you are a victim of identity theft, one of the first things you should do is file a police report. The Sacramento County Public Law Library has a helpful article on Identity Theft that provides information on how to proceed. However, if you are at all uncertain about why AT&T wants you to report such a crime, please consult an attorney or ask to speak with an AT&T supervisor to gain a better understanding of this request.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Who gets the Engagement Ring in a Break-up?

2012-04-12T21:16:59Z

Q. I have been with my girlfriend for a long time and we got engaged on Valentine’s Day. I saw text messages on her phone I didn’t like and asked her about it. Now she says I am jealous and broke off the engagement, but she won’t give me the ring back, even though I asked her a bunch of times. How can I make her give me the ring back since she is the one who broke my heart?

Dwayne

A. Sorry to hear about your situation, break ups can be hard on everyone. Believe me you are not the first person with this issue. In fact, California has enacted a law that covers this topic. The California Civil Code § 1590 states:

Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.

The donee is the person who is receiving the ring, while the donor is the person giving the ring.

If after reading the law, you still feel you are entitled to the ring, you should ask for it back in writing with a demand letter. You can get help writing your demand later on the California Courts Self-Help Website. If she still refuses, you may need to take your case to Small Claims Court, where you can sue for return of the ring or for its value up to $10,000. However, if you were a big spender, and the ring is worth more than that, you may want to pursue your case in Superior Court, where there is no limit.

For more information on Small Claims, at the law library, we suggest reading Everybody’s Guide to Small Claims Court in California, a very useful book on the small claims process. Every county in California has a Small Claims Advisor that can assist you with your case free of charge. You can find county-specific court information, including how to contact your Small Claims Advisor, at h ttp://www.courts.ca.gov/selfhelp-advisors.htm .

You can always do more in-depth research at the Sacramento County Public Law Library. The law library has print and electronic resources and expert reference law librarians are available to assist you. You may wish to begin your in-depth research with a book that discusses this issue in more detail, such as Witkin’s Summary of California Law. Volume 13 contains the topic, “Personal Property,” and § 154 is titled “Revocation of Gift in Contemplation of Marriage.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Neighbor Troubles

2012-04-05T21:31:26Z

Hi, this is a multiple question question. I recently purchased a house on 2 acres in Citrus Heights, and the entire property needs to be re-fenced and the neighbors don't want to help pay for it. The fencing is at least 40 years old (one neighbor has confirmed this) and it is livestock fencing made of rotted out wood posts reinforced by some metal T posts with rusted wire and barbed wire fencing between the posts. There are 4 neighbors that surround the property, one neighbor (we'll call her neighbor A) has little dogs that come into my yard and continue to poop in several large poo piles at the edge of my property. I have not been able to catch them, but the poop is proof enough. Also, there is a year round county creek that runs through my property and through one of the other neighbor's properties (we'll call him neighbor B). We can't entirely fence the creek because of debris running through, but I still want the shared border that isn't creek fenced as much as possible. Also, neighbor B has blackberry bushes that are on his property, but past their part of the creek where they can't even get to, and come right up to the property border and are overtaking the border fence. They are also continuing to trespass into the creek on my property in order to pull random debris out and leave it on my property. So here are the questions:

Can I legally make them all pay for half the fence?
Additional info: All except neighbor A has completely fenced yards excluding the part where the creek runs through which can't be fenced.

What can I do about neighbor A's dogs constantly pooping in my yard? (They poop there because the fence is inadequate to keep them out.)

What can I do about neighbor B's blackberry bushes?

What can I do about neighbor B trespassing into my yard and pulling debris out of the creek and leaving it in my yard?

Thank you! Any help would be appreciated!

Sincerely
"Disgruntled neighbor"

Neighbor disputes are something that we’ve all undoubtedly experienced at some point. Resolving them requires finding a balance between protecting your property and quality of life, while maintaining a cordial relationship with your neighbors. It looks like you have several different issues in your new home, which are addressed below.

Fences
California Civil Code section 841 is very specific about the responsibility for maintenance of fences. Generally speaking, boundary fences are jointly owned by both landowners, and thus the responsibility of both landowners. There is a significant exception to this rule – property owners are only responsible for the fence if they are using the fence to enclose their property. If one of the property owners has chosen to leave his land unfenced, he is not using the fence on the property line to enclose his property and is therefore not responsible for maintaining it. For more information, see Chapter 11 of Neighbor Law: Fences, Trees, Boundaries & Noise from Nolo Press, which provides details about state and local fence laws.

Pets
Both the City of Sacramento and Sacramento County have ordinances that specifically require pet owners to immediately pick up after their dogs. Citrus Heights doesn’t appear to have the same requirement, but the city codes do require dogs to be on a leash when not on their owner’s property (section 8-46), and from causing a nuisance or property damage (section 8-44). Unfortunately, it may be difficult to enforce these codes if city or county official does not witness the act. For more information about pooper-scooper laws, see Chapter 2 of Every Dog’s Legal Guide from Nolo Press.

You may be able to pursue this on your own in the civil court, if you believe that the dog’s entry and deposits meet the legal criteria constituting a nuisance. Under Civil Code 3479, a nuisance is anything that is injurious to health, indecent or offensive to the senses, or obstructs or interferes with free enjoyment of your property. California Civil Code 3501-3503 allows the injured party to start a civil action or to abate the nuisance.

Encroachment
Encroaching limbs and roots are generally considered a legal nuisance. As mentioned above, the injured party may start a civil action or to abate the nuisance. “Abating the nuisance” of encroaching limbs and roots usually means that you can trim them back to the property line, as long as you do not cause unnecessary injury to the plant, or enter the neighboring property without permission. Without permission, it is considered trespassing. More information about encroaching trees and vegetation can be found in Neighbor Law: Fences, Trees, Boundaries & Noise from Nolo Press.

Trespassing
Generally, any unauthorized entry or invasion onto the property of another is considered trespass. This may be a person entering another’s land without permission, trees or vegetation encroaching over the property line, or anyone intruding on another’s land and leaving objects behind. As with most laws, there are many exceptions. There are many instances in which it is lawful to enter another’s property without permission.

A case for trespass can be pursued in both the civil and criminal courts. The criminal act is a violation of Penal Code section 602. You cannot bring criminal charges yourself – that is up to the District Attorney. If you’re interested in pursuing criminal charge for trespass, you would need to contact the police.

You can also pursue a case for trespass on your own in the civil courts. Depending on the nature and severity of the trespass, the court may issue an injunction prohibiting the party from entering your land or requiring the party to perform specific acts such as trimming the offending vegetation; award you compensatory damages if the trespass resulted in property damage (See Civil Code section 3333); or possibly award punitive damages, if it can be proven that the trespass was committed with oppression, fraud, or malice (See Civil Code Section 3294(a)).

Many people are understandably reluctant to start litigation against a neighbor. There are less antagonistic options available. About a year ago, we answered a question about non-court alternatives for fence disputes in Sacramento. The City of Citrus Heights also offers a free dispute resolution program intended to assist neighbors in settling these types of matters.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Statute of Limitations for Fraud

2012-03-29T19:44:07Z

Q. I am researching California statute of limitations for Power of Attorney. I became ill in the late Spring of 2008 with a brain tumor and mental health problems and signed a power of attorney to a lawyer and in examining my back statements I believe a significant amount of my funds were taken from my bank account for her personal use and I want to take legal action. Please advise. I never submited a release document. Thank you. jg

A. The first thing you should do is revoke that Power of Attorney, if you haven’t already! You can find sample revocation forms in many of the resources listed in our Legal Research Guide to Powers of Attorney, available on our website at http://www.saclaw.org/pages/powerattorney.aspx.

It looks as though you may have an action for constructive fraud against the attorney who took funds from your bank account for her personal use. The elements of constructive fraud are (1) a relationship between the plaintiff and defendant in which the defendant owes the plaintiff a fiduciary duty; (2) an act, omission or concealment by the defendant involving a breach of that fiduciary duty; and (3) resulting damage to the plaintiff. California Civil Code § 1573.

A “fiduciary relationship” is the legal relationship that exists when one person (the beneficiary) justifiably places reliance on another (the fiduciary) to aid or protect the beneficiary. The fiduciary has the responsibility of acting in the best interests of the beneficiary. Examples of fiduciary relationships include trustee/beneficiary, guardian/ward, attorney/client, and the agent/principal relationship created by a Power of Attorney.

California Probate Code § 4128(a) describes the duty an “agent” owes to the “principal” in the following notice, which is required on Powers of Attorney sold or distributed for use without consulting a lawyer:

By acting or agreeing to act as the agent (attorney-in-fact) under this power of attorney you assume the fiduciary and other legal responsibilities of an agent. These responsibilities include:
1. The legal duty to act solely in the interest of the principal and to avoid conflicts of interest.
2. The legal duty to keep the principal's property separate and distinct from any other property owned or controlled by you. You may not transfer the principal's property to yourself without full and adequate consideration or accept a gift of the principal's property unless this power of attorney specifically authorizes you to transfer property to yourself or accept a gift of the principal's property. If you transfer the principal's property to yourself without specific authorization in the power of attorney, you may be prosecuted for fraud and/or embezzlement. If the principal is 65 years of age or older at the time that the property is transferred to you without authority, you may also be prosecuted for elder abuse under Penal Code Section 368. In addition to criminal prosecution, you may also be sued in civil court.

The statute of limitations for fraud is three years. California Code of Civil Procedure § 338(d). The statute does not “accrue,” or start running, until “the discovery, by the aggrieved party, of the facts constituting the fraud.” When “discovery” occurs is generally question of fact. When “the plaintiff suspects or should suspect that her injury was caused by wrongdoing,” the statute starts to accrue. Parsons v. Tickner, 31 Cal. App. 4th 1513 (1995).

The word “wrongdoing” is used in its lay sense. A plaintiff need not be aware of every fact necessary to establish each element of a cause of action. If a plaintiff has reason to suspect that someone has done something “wrong” to them and has the incentive to sue, that is sufficient for statute of limitations purposes. Kline v. Turner, 87 Cal. App. 4th 1369 (2001).

A plaintiff's duty to inquire about suspicious facts may be relaxed where the defendant owed the plaintiff a fiduciary duty. In that case, there is no duty to inquire until the relationship is repudiated or the plaintiff becomes aware of facts that would make a reasonably prudent person suspicious of the fiduciary. Dabney v. Philleo, 38 Cal. 2d 60 (1951).

Where a trustee gives a beneficiary “an interim or final account in writing, or other written report” that adequately discloses the basis of a fraud claim, however, a suit for breach of trust must be commenced within 3 years of the beneficiary's receipt of the account or report. California Probate Code § 16460(a)(1).

You can read more about the statute of limitations for fraud at the Law Library in California Practice Guide: Civil Procedure Before Trial: Statutes of Limitations.

So, depending upon when you examined your back statements and realized a significant amount of your funds were taken, your lawsuit may not be barred by the statute of limitations.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian: Space for Our Pool

2012-03-22T18:22:45Z

Q: I wanted to find out how close to our property line we can place a pool or spa. We live in East Sacramento, Sacramento County. I would appreciate any help you could give me. Thank you for your time, Noreen

A: There are a number of state laws, regulations, and local ordinances affecting pools, but the ones regulating distance from property lines appear to be set by the local city or county. Since you are in the city of Sacramento, the City Code applies.

This code provides that “no swimming pool or similar pool shall be located within a distance less than or equal to the depth of the deepest excavation for such pool from any property line, building or structure (one to one slope).” Sacramento City Code 15.64.030 (Limitation on location of pool). The pool may be located closer if the pool’s design is specifically calculated tailored to support the possible additional load (weight or pressure from the construction).

There are also general requirements for setbacks (space left between structures and the boundaries of your property), including specific requirements for pools set out in Sacramento City code 17.80.060 (Other accessory structures and uses). These requirements vary depending on the layout of the property and its neighbors, so it is not something that is easy to answer.

So unfortunately it sounds like there is no cut-and-dried answer to your question. You will probably need to consult your contractor or structural engineer to determine the minimum clearance.

For more information, visit the City of Sacramento Community Development Department’s website or give them a call at 916-264-5011. The Department has a handout on Requirements for Pool Construction that may also be helpful.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Motion to Continue Trial

2012-03-16T17:57:54Z

Q. I was sued for $15,000 about a year ago, and the first thing I did was hire an attorney my brother-in-law knew, as I have never been sued before, have never even been inside a court room, don’t know anything about the law, etc. Unfortunately, as time went on, it became obvious that the attorney and I did not see eye-to-eye and I felt that he was not really on my side in the case. Eventually he quit. I have been looking for a replacement for the last month; however, the lawyers that do manage to return my phone calls are either too busy, about to go on vacation, do not handle this type of case, or are way out of my price range. A couple of them have told me that even if they were able to take my case, there is no way they could be prepared in time for the trial; they would need more time to “discover” something; I don’t know what.

Help! What can I do?

Dennis

A. Rule 3.1332(c) of the California Rules of Court allows the court to grant a continuance before trial upon an “affirmative showing of good cause.” Circumstances indicating good cause for a continuance include the unavailability of an essential witness; the unavailability of a party because of death, illness, or other excusable circumstances; or a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. Your case may fit in this last category.

Motions to continue a trial are frowned upon by the courts because continuances interfere with a court’s ability to schedule its courtrooms efficiently, often creating a backlog of trial dates. For this reason, it is best to request a continuance as soon as you become aware that it will be needed. You should never depend on a continuance being granted; however, as a very real possibility exists that it may be denied, especially if there have already been several continuances in the case.

A request for a continuance is made through a motion. A “motion” is a request made in an ongoing case asking the court to issue an order of some sort. Most motions are in writing. There is no fill-in-the-blank form for making a motion. Instead, the motion must be typed on 28-line pleading paper. A written motion consists of four parts: 1) Notice of Motion; 2) Motion; 3) Points and Authorities; and 4) Declaration. The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard; while the Motion itself lets the court and opposing party know what is being requested. The Points and Authorities section explains to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion.

We have a guide to making a motion for a continuance on our website at http://www.saclaw.org/pages/motion-to-continue.aspx, complete with step-by-step instructions and a template you can download and tweak to fit the facts and circumstances of your case.

In Sacramento, the party requesting a continuance is responsible for setting the date for hearing the motion. There are two very important deadlines you must consider when setting the date of a motion: the filing deadline and the service deadline.

A motion must be filed with the court at least sixteen court days prior to the motion date. California Code of Civil Procedure §1005(b). Court days are Monday through Friday, excluding court holidays. To determine whether a particular filing date will meet this deadline, start with the first court day after the planned filing date as day one, and count forward sixteen court days. The first possible date the motion can be heard is day sixteen. The guide on our website includes a calendar to help you calculate your filing deadline.

Prior to filing the motion with the court, all other attorneys or self-represented parties in a case must be served with a copy of the motion. If the motion is personally served, the service must be at least sixteen court days prior to the date of the motion, the same as the minimum filing deadline. If the motion is served by first-class mail, additional time is added to the calculation, depending on where the mail originates and where it is sent. California Code of Civil Procedure §1005(b). For example, if the documents are mailed from California to an address in California, five calendar days are added after the sixteen court days. Calendar days include weekends and holidays, but if the final day lands on a weekend or holiday, it is rolled over to the next court day. The guide on our website also includes a calendar to help you calculate your service deadline.

If opposing counsel or self-represented party opposes your request for a continuance, he or she may serve and file an opposition at least nine court days prior to your motion date. You may serve and file a reply to the opposition at least five days prior to the motion.

Pursuant to Sacramento County Superior Court Local Rule 2.02(D), the court will make a tentative ruling on the merits of your matter by 2:00 p.m. the court day before the hearing. You may read the tentative ruling online, or call the Presiding Judge's department to hear it. For information on how to view the ruling online, see the guide on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.

If you are happy with the tentative ruling, you do not need to do anything. You won’t have to go to court unless ordered to appear in the tentative ruling or unless the other side calls you and the court between 2:00 p.m. and 4:00 p.m. the court day before your hearing date to request an oral argument in front of the judge. If that happens, you should go to the court hearing and be prepared to argue your case.

If you are not happy with the tentative ruling, and wish to present arguments in front of the judge, you must call all opposing parties, opposing counsel, if any, and the clerk for department 47 no later than 4:00 p.m. the court day before your motion is scheduled to state that you are requesting oral argument on the motion. If neither you nor the opposing party requests oral argument, the court will simply make the tentative ruling the order of the court.

I hope this helps. Good luck with the continuance and finding a new attorney!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Rate Increases at Self-Service Storage Facilities

2012-03-08T20:17:11Z

Q. How much notice does a storage facility have to give before raising the fees? Is the time period covered by the law? I gave my facility plenty of notice, trying to be nice, and they replied with an increase in my last month's rent.

A. Raising rental rates is common practice among self-service storage facilities, though the justification behind increases will vary from company to company. For example, some companies might have existing contract customers on a schedule that dictates the rate be increased a specific percentage after a predetermined amount of time has passed. Other storage companies may raise their rates to match the current market rate or demand, especially if long-term customers are paying very low rates based old market figures.

As with many legal issues, the answer to this question depends upon a couple of factors. Many states have laws that control the practices of storage facilities; in California, self-service storage facilities are governed by the California Self-Service Storage Facility Act in Business & Professions Code § 21700 et seq. This act applies to rental agreements entered into, extended, or renewed after Jan. 1, 1982. According to Section 21701(d), “the term ‘rental agreement’ means any written agreement or lease that establishes or modifies the terms, conditions, rules, or any other provision concerning the use and occupancy of a self-services storage facility.” So, the first order of business is to examine your lease or rental agreement with the storage facility.

The oft-used idiom “the devil is in the details” certainly applies to leases. Review the terms carefully, looking for specific timeframes for rent increases, the advance notice the company is required to provide to customers, or any general terms related to the rental rate. Often the contract will allow the leasor to increase rates as often as it pleases and by any percentage, and potential renters should inquire about these practices before entering into a rental agreement. Some facilities may let you take home a sample contract before renting, so don’t be afraid to ask for one.

If the rental agreement does not reference rate increases, then it’s possible that another California code section may apply in this case. The state laws governing self-service storage facilities as laid out in the Business and Professions Code chiefly focus on the creditor-debtor relationship created by the rental agreement, specifically as it applies to liens. But self-service storage leases also create a type of landlord-tenant relationship, in which case California Civil Code Section 827(a) might apply. This law states that if you have a lease for more than 30 days (e.g. a one-year lease), your rent cannot be increased during the term of the lease, unless the lease allows rent increases. On the other hand, if you have a periodic rental agreement (e.g. a month-to-month lease), the tenement provider can increase your rent as long as proper advance notice in writing is given. The proper advance notice depends upon the period the lease is based upon: for a month-to-month lease, advance notice is not less than 30 days; for tenancies less than one month, advance notice must be equal to or greater than the term of tenancy (e.g. one week’s notice for a week-to-week lease). The code section includes some exceptions and conditions, so you may wish to consult an attorney for a thorough interpretation of the law and advice on how to proceed.

You can read more about the California Self-Service Storage Facility Act in the Sacramento County Public Law Library’s Everyday Law article on Self-Service Storage Facilities. For more information on laws governing the landlord/tenant relationship in California, see the California Department of Consumer Affairs handbook on this topic: http://www.dca.ca.gov/publications/landlordbook/catenant.pdf

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Renters Insurance

2012-03-01T23:50:51Z

Q- I recently moved into an affordable HUD senior building. The very last item presented to me, after I had paid my deposit, in this long 500-page+ process, was a requirement to "obtain $100,000 in rental insurance". My response was, "are you kidding me? The sum total of everything I've owned In My Life wouldn't add up to $100K If you had told me about this at first, I would have moved elsewhere!" I have 30 days to fulfill the requirements of this extortion, or I have to forfeit the apartment and start all over. Is it legal?

A- Thanks for your question! California law does not require renters to purchase their own renters insurance and nothing prohibits a landlord from making it a mandatory provision of the lease. If this is a requirement in your upcoming lease, unfortunately, you will need to abide by the terms of the lease. I know you are frustrated, but this is actually a fairly common practice by landlords, since renters insurance can protect both the tenant and landlord.

According the California Department of Consumer Affairs website, renter’s insurance protects the tenant's personal property from losses caused by fire or theft. It also protects a tenant against liability or legal responsibility, for many claims or lawsuits filed by the landlord or others alleging that the tenant has negligently injured another person or damaged the person's property. Carelessly causing a fire that destroys the rental unit or another tenant's property is an example of negligence for which you could be held legally responsible.

Even though a 100,000 policy would more than cover your personal belongings, if there were major structural damages that arose from your negligence, you could be required to pay for the losses that the landlord or any other tenant suffers. Renter's insurance would pay the other party on your behalf for some or all of these losses. For that reason, it's often a good idea to purchase renter's insurance.

For more information on tenants’ rights, you may want to look at a book we have at the law library called California Tenants Rights published by Nolo Press.

Ask the County Law Librarian -- Is it legal to carry a wooden sword in public in California?

2012-02-22T17:37:24Z

Q. Is it legal to carry a wooden sword in public in California? Also in schools?

Sincerely Yours,

Daniel

A. The basic answer to your first question is “it depends.” Simply carrying around an unconcealed wooden sword is legal in California. In fact, there’s no law prohibiting carrying around a metal sword, either. A number of laws restrict or prohibit carrying concealed weapons, such as cane swords, switchblades, pen knives, and even lipstick case knives, but openly carrying a sword or stick is not expressly prohibited.

It is a misdemeanor to carry a deadly weapon with intent to assault. California Penal Code § 17500. It seems likely that a sturdy wooden sword could be considered a deadly weapon, even if it is not sharp. A “deadly weapon” is anything likely to produce death or great bodily injury. Even things like pencils and forks have been found to be deadly weapons in certain circumstances. See People v. Page, 123 Cal. App. 4th 1466 (2004); People v. Moran, 33 Cal.App.3d 724 (1973).

There are twenty-six items specifically defined as “generally prohibited weapons” in California. California Penal Code § 16590. Common characteristics for classification in this category seem to be concealable weapons (cane swords and shobi-zue, cane guns, concealed dirks or daggers) and trendy weapons (nunchakas, shuriken, and the surprising lipstick case knife). Neither swords nor wooden sticks or batons are expressly covered, but a “dirk or dagger” is defined as “a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” California Penal Code § 16590. It is therefore possible, depending on the size and build of the wooden sword in question, that, if concealed, it might be prohibited under California Penal Code § 16590. If the wooden sword were being used in a “motion picture, television, or video production or entertainment event,” however, it might be exempt under California Penal Code § 17720.

So, under California state law, it appears there is no restriction on simply carrying a wooden sword. Your city or county may have such restrictions, however, so you may wish to check those codes for limitations on carrying such weapons. For instance, Sacramento’s City Code prohibits carrying concealed “dangerous or deadly weapons” while loitering or fighting, and prohibits transporting such weapons by car, except for “for uses of honest work, trade or business or for the purpose of legitimate sport or recreation.” The City Code defines “dangerous or deadly weapons” to include “any cutting, stabbing or bludgeoning weapon or device capable of inflicting grievous bodily harm,” so that would almost certainly include a wooden sword. Sacramento City Code § 9.32.010-9.32.050.

The law regarding bringing or possessing weapons on school grounds is stricter, of course. California Penal Code § 626.10 prohibits anyone except a duly appointed peace officer or someone summoned by and assisting the officer in preserving the peace from bringing or possessing on school grounds “any dirk, dagger, ice pick, knife having a blade longer than 2 1/2 inches, folding knife with a blade that locks into place, razor with an unguarded blade,” etc. The item need not be concealed to fall under this restriction, and no intent to assault is required. There are exceptions for food preparation or consumption, any lawful purpose within the scope of a person's employment, and items brought at the direction of a faculty member for a school-sponsored activity or class. As in the “generally prohibited weapons” Penal Code section mentioned above, “dirk or dagger” means “a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death.” So, it is possible that, depending on the size and build of the wooden sword in question, it might be prohibited under the “bringing or possessing weapons on school grounds” Penal Code section.

In order to determine the answer to your question with any degree of probability, you would need to come to the Law Library and do more extensive research. The Library is currently closed, but we hope to re-open at our new 609 9th Street location on March 1, 2012. While we’re closed, you can still visit our website at www.saclaw.org for a wealth of information, including sample forms and instructions for navigating a variety of common legal procedures.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Allowing Dogs At Outside Restaurant Patios

2012-02-16T22:43:15Z

Q. I love dining with my Black Russian Terrier, Eli at the numerous dog friendly restaurant patios in Sacramento. Why do some restaurants allow dogs on their outdoor patios and some don’t?

Julie S.

A. More and more, restaurants are recognizing the buying power of dog owners. So restaurants are welcoming pet diners onto their patios some even making special treats and providing bowls of water for their canine customers.

With the exception of recognized service animals, Health & Safety Code (H&SC) Section 114259.5 prohibits live animals in food facilities. A food facility is defined as an operation that stores, prepares packages, serves, vends or otherwise provides food for human consumption (H&SC Section 113789).

It is the right of a facility owner or operator to deny animals access to their premises; except for service animals and dogs under the control of uniformed law enforcement officers or licensed private patrol operators acting within the scope of their work duties.

Dogs must be excluded from an outdoor patio if they have to walk through the inside of the restaurant to get to the outdoor seating.

Bon Appétit or should I say Bone Appétit Eli and Julie!

Do you have a question for the County Law Librarian? Just email s acpress@saclaw.org . If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian -- Affirmative Defenses to Fraud

2012-02-09T23:01:33Z

Q. What are some affirmative defenses to fraud?

Ayana

For those readers who aren’t familiar with the phrase, an affirmative defense “sets forth facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action existed in the plaintiff at the time the action was brought.” Goddard v. Fulton, 21 Cal. 430, 436 (1863). In plain English, the defendant in a case can present information or evidence that reduces or eliminates his liability, even if the allegations in the complaint are true. Affirmative defenses are the legal reason why, even if everything happened just as described by the plaintiff, the defendant should not be held liable.

There are too many affirmative defenses available to list here. We have a very useful set at the law library that may help you determine appropriate affirmative defenses in your situation called California Affirmative Defenses.

There are some that can be used in almost all case types, and others that are specifically counter allegations of fraud. In order to assert the proper affirmative defenses, you will need to carefully review the complaint and the plaintiff’s allegations.

A common affirmative defense for many types of cases is a violation of the Statute of Limitations, or failure to file an action within a certain period of time after the “wrong” involved was committed. The Statute of Limitations for Fraud is three years. California Code of Civil Procedure § 338(d).

Statute of Limitations questions are always tricky, but particularly so with fraud, because the statute does not start to “accrue,” or start running, until the aggrieved party discovers the facts constituting the fraud. California Code of Civil Procedure § 338(d). You can read more about the statute of limitations for fraud at the Law Library in California Practice Guide: Civil Procedure Before Trial: Statutes of Limitations.

A common affirmative defense for fraud cases is failure to plead a cause of action with specificity. A little explanation of this defense may be helpful. A cause of action for fraud must be pled with “specificity,” meaning that allegations of fraud must be described in a complaint with much more detail than other causes of action. This is to “give defendants notice of the particular misconduct . . . so that they can defend against the charge and not just deny that they have done anything wrong.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993). Each element in a cause of action for fraud must be factually and specifically explained--the “who, what, when, where, and how” of the misconduct must be listed. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).

To determine if the complaint is pled with specificity, you will need to carefully review all allegations, and determine if all elements are adequately described. The elements of fraud are (1) a misrepresentation, concealment, or nondisclosure by the defendant; (2) the defendant’s knowledge of the falsity of the misrepresentation; (3) the defendant’s intent to deceive the plaintiff; (4) justifiable reliance upon the misrepresentation by the plaintiff; and (5) resulting damage to the plaintiff. California Civil Code § 1709. In order to describe the first element, for example, a “plaintiff must set forth what is false or misleading about a statement, and why it is false.” Decker v. GlenFed, Inc , 42 F.3d 1541, 1548 (9th Cir. 1994).

There are further affirmative defenses to fraud, of course, but without knowing more about the specific fraudulent act you are interested in, it is hard to say which would be most relevant to your situation. If you visit the Law Library in person we’d be happy to show you the references mentioned above and more, based upon the facts of your situation.

You should know, however, that we are in the process of moving to a new location and will be closed until on or about March 1. While we’re closed, you can still visit our website at www.saclaw.org for a wealth of information, including sample forms and instructions for navigating a variety of common legal procedures. Our website may be down for a couple of days while we move our computers, but you can “like” us on Facebook or “follow” us on Twitter for the latest details on when that might happen, and exactly when we will re-open. We sincerely hope you will visit us in our new location and that the many amenities of 609 9th Street (including abundant street parking!) will make you think it was worth the wait!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian -- Law Library Closing for Move; Re-opening March 1

2012-02-04T18:04:01Z

Q. What’s going on at the Law Library? There is yellow caution tape across the stairs to the second floor, which is closed to the public, and there’s a whole lot of banging and clanging going on up there!

Ted D.

A. Sorry about the noise and disruption, Ted! We’re doing our best to keep it quiet, but the sound you hear coming from the second floor is the result of having workers dismantle our rather large shelving units--we’re preparing for our move to a new facility about two blocks on the other side of the courthouse.

The Law Library and Civil Self-Help Center will be closed starting at noon on Friday February 10. We expect to open in our new location at 609 9th Street (corner of 9th & “F”) on or about March 1, 2012. Until February 10, if you need any material on our second floor, please don’t hesitate to ask a reference librarian—we’d be happy to run upstairs and get it for you!

While we’re closed, you can still visit our website at www.saclaw.org for a wealth of information, including sample forms and instructions for navigating a variety of common legal procedures. Our website may be down for a couple of days while we move our computers, but you can “like” us on Facebook or “follow” us on Twitter for the latest details on when that might happen, and exactly when we will re-open.

You may also visit the Witkin State Law Library of California or the Yolo County Law Library, which are the two nearest law libraries open to the public in the Sacramento area. The Yolo County Law Library has graciously volunteered to remain open an extra hour, until 5:30 pm, Monday through Friday for the month of February to accommodate our patrons.

Again, we apologize for any disruption in service, but we sincerely hope you will visit us in our new location and that the many amenities of 609 9th Street (including abundant street parking!) will make you think it was worth the wait!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian-Personal Service of Court Papers

2012-01-26T23:36:18Z

Q. I want to sue my tenant for property damage in small claims court. He left no forwarding address, and has abandoned his tenancy. He has no job. He gets his money from alimony and child support. However, I know that he picks up his kids from the school. Can I use my adult son to personally hand deliver a summons to him when he is with his kids at school? What are the rules?

-Myrna

A. There are requirements to ensure proper service of process, but first you may want to try discovering your ex-tenant’s address; it may be easier than you think. The Sacramento County Public Law Library(SCPLL) has created a guide on Finding People and Businesses, detailing some common ways in which people (and their addresses or phone numbers) can be traced. Also, as a recipient of child and spousal support, your ex-tenant may have had to update his address with the local family law court or child support agency. Most court records, unless expressly sealed, are public record and therefore available for viewing if you have a case number. In Sacramento County, case numbers can be found using the online Case Index, and family law case documents can be retrieved at the William R. Ridgeway Family Relations Courthouse. For other counties, consult the California Courts court directory.

The requirements for personal service of process are addressed in Code of Civil Procedure Sections 413.10-418.11. Although these code sections refer to civil actions at the trial court level, they also apply to small claims actions. SCPLL offers an online video tutorial and guide on personal service of court documents, and the California Courts Self-Help Center offers advice and forms on service of small claims court documents. At the law library, we suggest reading The Registered Process Server’s Guide to Service of Process in California, a very useful book that covers the numerous variables involved in serving court documents.

In the event you are unable to locate the defendant’s address after performing due diligence, you may want to consult previous Ask the County Law Librarian columns on Serving Legal Documents to a P.O. Box and Service by Publication. If you can locate a friend, family member, or coworker that has regular contact with your ex-tenant, you may want to consult the www.courts.ca.gov for information on substituted service.

If you do receive a money judgment and are looking to collect by levying funds from the debtor’s deposit accounts, be aware that some of the money may be exempt from collection, depending on the source of funding. For more information on which types of property may be safe from judgment creditors, see the Sacramento County Public Law Library’s research guide on Exemptions and the book "How to Collect When You Win a Lawsuit", published by Nolo Press.

You can always do some research at the Sacramento County Public Law Library. The law library has print and electronic resources and friendly reference law librarians are available to assist you.

Coral Henning, Director

@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Recovering Money for Property Damage by Tenant

2012-01-20T01:03:41Z

Q: In July 2011, I contracted a new driveway for my home. The cost was $3300. I paid extra for cement coloring. My tenant parked his car on the new driveway and caused permanent stains on both sides of the driveway due to leaks from his vehicle. In October 2011, he tried cleaning it but was not successful. He gave me a hand written note giving up on cleaning the stains. In November 2011, I hired a professional to clean the stains and not all of the stains were removed. He refuses to pay for the damage on the driveway or claim fault for his negligence. This incident has caused a disharmony between us. He knew his vehicle needed repair but was too lazy and stingy to repair his car. We have a written contact that requires his vehicle be maintained if he is to park on the driveway.

He gave his rent termination notice on January 1, 2012 to vacate the premise by January 31, 2012. We have a month to month rent agreement. The living arrangements have been hostile as he says that I have to sue to collect. He has also made the two rooms and bathroom he rented from me unclean, and refuses to clean it. I gave this tenant with his two kids a very clean living arrangements when he moved in on March 1, 2011.

There is also a possibility that he may not vacate my property on January 31, 2012 as I can see the bank notices for his bounced checks he gets in his mail.

How do I make this tenant from hell pay for the property damage? and evict?

Myrna

A: Thank you for your question! It seems you have a couple of issues, let’s tackle the driveway damage first. You didn’t mention if your tenant gave you a security deposit when he moved in. If he did, you may be able to withhold some of it to recover the property damage. California Civil Code §1950.5 primarily governs security deposits; be sure to read each section carefully to be aware of the various requirements for both the landlord and the tenant. Also the California Department of Consumer Affairs has a very good article discussing when a landlord can keep security deposits.

If there was no security deposit left, then Small Claims court is a common venue for disputes over property damages. It has the advantage of being very quick, with cases typically being heard in only a few months, and of being relatively inexpensive. You can sue in Small Claims for up to $10,000, and your damages fall well within this limit. Before filing, you should write a formal demand letter requesting payment for the damages to the driveway, possibly including an estimate for the cost of repairs. You can get help writing your demand later from the California Courts Self-Help Center.

At the law library, we suggest reading Everybody’s Guide to Small Claims Court in California, a very useful book on the small claims process. Every county in California has a Small Claims Advisor that can assist you with your case free of charge. You can find county-specific court information including Small Claims Advisors here: http://www.courts.ca.gov/selfhelp-advisors.htm .

For your second issue, if your tenant becomes a “holdover tenant”, meaning he won’t leave after his notice expires, you will need to formally evict him. A book at the law library that should help with this issue is the California Landlord's Law Book: Evictions , available for purchase at Nolo Press, or to view at our law library, which discusses the process and has sample forms and instructions. You may also want to visit the Unlawful Detainer Advisory Clinic, located in the Carol Miller Justice Center. The clinic assists both landlords and tenants in filling out answers and complaints, preparing cases for trial, and filing post judgment motions.

You can always do some research at the Sacramento County Public Law Library. The law library has print and electronic resources and friendly reference law librarians are available to assist you.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Court-Appointed Attorneys in Civil Cases

2012-01-12T22:49:21Z

Q. I accidentally bumped into the back of a car at a stop sign--I barely even tapped the bumper, I took a picture and you can hardly even see the tiny dent--but now this jerk is suing me for "soft tissue neck trauma," aka whiplash. He is asking for $100,000 for pain and suffering!!! I was laid off about a year ago, before the accident, and still can’t afford car insurance, much less an attorney, even if I could find one who would take my case—I looked and looked! What are people in my situation supposed to do? I did nothing wrong, I could lose everything, and no one will help me! Why won’t the Court appoint a lawyer to defend me?
- Sandeep

A: We’re all very familiar with the phrase "If you are unable to afford a lawyer, one will be appointed for you.” We hear it every time someone is arrested on TV or a movie. Generally, the court will only appoint an attorney to ensure that a defendant’s Sixth Amendment “right to counsel” is met, in situations where the defendant cannot afford to hire an attorney. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy … the assistance of counsel for his defense.” Originally, this amendment applied only to felony cases, but a series of US Supreme Court decisions have broadened this right to cover nearly all types of criminal cases. However, this amendment is speaking specifically about criminal proceedings, not civil cases.

In California, the court cannot appoint an attorney to represent either party in most civil cases. A recent law, AB 590, does provide for the appointment of counsel in “civil matters involving critical issues affecting basic human needs.” This has been interpreted to mean cases in which shelter, nourishment, safety, or child custody are at stake. The law provides funding for projects run by local legal aid organizations, and services are limited to those who fall at least 200% below federal poverty level. It’s unlikely that your case would meet these criteria. If you are unable to hire an attorney at your own expense, you’ll have to pursue your defense of this case on your own.

If you’re a Sacramento County resident, some assistance may be available to you for this type of case from the Civil Self-Help Center. The CSHC can provide general information and basic assistance to self-represented litigants with certain case types. Common types of cases they can help with include personal injury, property damage, and breach of contract. Keep in mind, though, that their services are “self-help.” This means YOU are in charge of your case. They won’t do everything for you, like an attorney would if you hired one. If you decide to pursue this case on your own with help from the CSHC, you need to be in control of your case, you need to understand and determine your own strategy, and you need to keep on top of deadlines, court dates, and other important milestones. The Law Library has a variety of books and other materials that will help you at each step of your case. The Law Librarians are happy to help you find the books and other resources to help you with your case.

Coral Henning, Director
@coralh & @saclawlibrarian

Ask the County Law Librarian – Providing For Pets In The Event of Death or Incapacity

2012-01-05T19:14:51Z

Q. I am trying to get my affairs in order and I am concerned about what will happen to my three dogs should I die or become incapacitated. Can I leave money in a will or trust for my dog's care?

Suzy

A. You cannot leave money or other kinds of property directly to your dogs because the law says that animals are property. I know most people that have pets consider them to be family members, but the law sees it differently, therefore your pets cannot be a beneficiary in a will. There are a number of things you can do to make sure your pets are provided for when you can no longer care for them.

You can choose a new owner for your dogs and make it a legally binding decision by including it in your will. A provision like: "I leave my three dogs Caldonia, Eli and Keeva to my friend Jennifer Lynn. " Obviously, you should talk to Jennifer before including such a clause in your will. Also consider leaving this new owner some money to go toward the costs of caring for your pets.

You can set up a Pet Trust which names someone, a trustee, in charge of managing and spending the property you leave for the benefit of your dogs. The trustee follows a written set of instructions that you provide. One advantage of a trust is that it takes effect before your death. The provisions in a will don't have any legal effect until you die.

For sample will clauses and other related information the New York City Bar Association has an informative website:
http://www.abcny.org/media-aamp-publications/brochuresbooks/556#Introduction

The law library has two books published by Nolo: Nolo's Simple Will Book, and Plan Your Estate both by Denis Clifford which can help on this topic. Also a great resource for all things related to dogs is Every Dog's Legal Guide, A Must-Have Book For Your Owner by Mary Randolph which is also published by Nolo. This website has a number of articles reprinted from Every Dog's Legal Guide: http://doglaw.hugpug.com/doglaw_073.html

When you are drafting your will or trust consider a contribution to rescue groups, humane societies and other non profits. A gift can help many animals. If you need help on the wording or have other questions the organization will be more than happy to provide assistance.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Recording Telephone Calls

2011-12-29T23:43:06Z

Q. My ex won’t pay her child support. Whenever we go to court, she claims she has no income, but she has boasted to me before that she is making money under the table and I’ll never get any of it. I bet I can get her to admit it again. Is it legal to record a phone call?

Chris

A. Don’t do it! It is illegal to record a phone call, or any private conversation, in California unless both parties know that the conversation is being recorded. You might also be sued for “intrusion.” Even if this doesn’t scare you, the tape would be worthless: it cannot be used as evidence in a court case, except your criminal trial.

Under California Penal Code 632(a), recording or eavesdropping on a confidential conversation without the consent of all parties is a crime. The penalty for a first offense is up to a year in jail or state prison, a $2,500 fine, or both.

Note that this applies to any “confidential communication,” whether it is in person, on the phone, or by some other device, as long as the eavesdropping or recording is done with an “electronic amplifying or recording device.” The term "confidential communication" includes any conversation in which is “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” California Penal Code 632(c).

Your ex might also be able to sue you for $5,000 or more. California Penal Code 637.2 provides that anyone injured by a violation of the eavesdropping and recording laws can sue for $5,000 or three times actual damages, whichever is greater.

If you do record your conversation, the recording will almost certainly be inadmissible in court. California Penal Code 631(c) states that “Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.” In other words, you can’t use it to help you, but it can be used against you to prove you broke the law.

California actually has some of the strongest anti-eavesdropping laws in the US. In many states, it is legal to record a phone conversation as long as one person knows it’s being recorded. In these “one-party states,” people generally may record their own conversations without the consent of any other parties but cannot grant that right to a third party. Reporters have an obvious interest in the laws on this subject, and you can find an overview of all 50 states’ laws on the website of the Reporters Committee for Freedom of the Press.

There might be other ways to prove that your ex is hiding income or spending more than she claims to earn. If you come in to the library, we have books that can give you ideas of the types of records to subpoena and questions to ask to help you do just that.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

How Registered Sex Offenders can Challenge “Jessica’s Law” Residency Restrictions

2011-12-22T17:30:03Z

Q. My brother is going to get out of jail soon, and we were planning on him moving in with me, but his parole officer told him he couldn’t because he has to register as a sex offender and I live too close to an elementary school, which is against “Megan’s Law” or “Jessica’s Law” or something like that. Isn’t there anything we can do? I’m afraid if he doesn’t live with me he will be homeless.

Jerri

A. California’s Megan’s Law requires anyone convicted of a wide range of crimes, including forcible sex crimes involving non-consenting adults and most sex crimes involving children, prostitution, and child pornography, to register as a sex offender upon release on parole or probation or discharge from custody. California Penal Code § 290. Proposition 83, the Sexual Predator Punishment and Control Act, or “Jessica’s Law,” which amended Megan’s Law on November 8, 2006, forbids any registered sex offender from living within 2,000 feet of a school or park where children regularly gather. California Penal Code § 3003.5(b).

Your brother is not alone in facing a very bleak prospect. According to the Prison Law Office, a nonprofit public interest law firm which engages in class action and other impact litigation on behalf of prisoners, these residency restrictions have forced many parolees to become homeless because they are unable to find affordable, compliant housing.

Jessica's law has been challenged in courts as being too restrictive. Your brother may wish to ask a court to review his case. The Prison Law Office, which has been involved in many of these challenges, has produced a packet of forms and instructions that parolees can use to ask for an immediate stay of the restrictions while their individual cases are being heard by the courts. The packet is available for free on the web at http://www.prisonlaw.com/pdfs/ModelHabeasFull,Dec10.pdf. An additional fill-in-the-blank form, required by all California state courts in this type of case, can be downloaded from the California Courts’ website at http://www.courts.ca.gov/documents/mc275.pdf.

You should be aware that local cities, towns and counties are permitted to adopt ordinances which impose further restrictions on where you can live. If you are not in Sacramento and are unsure whether your residence is in compliance with local law, check with someone who is familiar with your community’s laws.

Good luck!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Traffic Tickets for Out-of-State Residents

2011-12-15T22:36:34Z

Q: I’m not a California resident, but while driving home to Oregon last week I received a speeding ticket in California, more than ten hours away from where I live. If I want to contest it, do I have to drive all the way back to the county where I received the ticket?

Brett

A: First of all, kudos for being proactive about an out-of-state traffic violation. Many people under the same circumstance will simply ignore the citations in hopes that they won’t "follow" them back to their respective resident states. In fact, there are a few different databases that monitor driving records and violations across participating states, and there’s a good chance your state of residence belongs to at least one of them. For more information, consult the National Driver Register (NDR), the Driver License Compact (DLC), and the Non-Resident Violator Compact (NRVC).

If you wish to contest a Vehicle Code or local ordinance traffic violation in a California county, you have two options: 1) you can request a court trial; or 2) you can request a trial by declaration. In a trial by declaration, the judge reviews written statements and evidence mailed by both parties (the defendant and the citing officer). To be eligible for a trial by declaration, your case must meet the following requirements:

• Your citation is for an infraction violation only (as opposed to a misdemeanor);
• The due date to take care of your ticket has not expired; and
• Your notice or ticket does not expressly require your presence in court.

More information on both types of trials can be found at http://www.courts.ca.gov/8450.htm, which includes links to fillable forms, instructions for submitting evidence, and a description of the trial process. The county in which you received the citation may have its own traffic forms to use in addition to or in place of the state-approved Judicial Council forms, so check the superior court’s website or ask the court clerk before mailing your request. Nolo Press, a publisher of popular self-help legal books, publishers a very helpful guide called “Fight Your Ticket and Win in California.” You can find the book at large commercial bookstores like Barnes and Noble, at the publisher's website, or at your local public law library.

For information on similar issues, see Ask the County Law Librarian columns on red light citations, past-due traffic tickets, cell phone citations, and obtaining evidence from law enforcement agencies.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian -- Small Claims Defendant Can Postpone Trial for "Good Cause"

2011-12-08T23:06:14Z

Q. I am involved in a Sac small claims action that continues to be postponed by the Defendant. I'm trying to get the matter over with. So now I'm wondering: what does "Form SC-105, SC Order and Answer do? Is it a way to expedite a case or ask a judge to review my evidence and rule in advance?

The small claims advisors don't return calls and don't answer their phone. Any assistance would be appreciated.

Thank you
Carol

A. I understand your frustration in wanting to resolve your matter as quickly as possible! Form SC-105 is a generic motion form. It is used to ask the court to make a decision about a specific issue in your case, such as amending a judgment to include other names the defendant uses. This form cannot be used to get a judgment on the case.

According to California Code of Civil Procedure § 116.570, any party has the right to ask the court to postpone a hearing date for “good cause.” The code section does not limit the discretion of the court to grant additional postponements for “good cause” as necessary.

The request for postponement can be made either by writing a letter or by using Judicial Council Form SC 150, Request to Postpone Trial. The request shall be filed at least 10 days before the hearing date, unless the court determines that the requesting party has “good cause” to file the request at a later date. If the court finds that the interests of justice would be served by postponing the hearing, the court shall postpone the hearing, and shall notify all parties by mail of the new hearing date, time, and place.

According to Nolo.com’s legal dictionary, “good cause” is a legally sufficient reason for a ruling or other action by a judge. It is up to the other party to provide adequate proof that a postponement is required. Ultimately, it will be at the judges’ discretion if the postponement request is granted.

Try to be patient with the Small Claims Advisor; this is the time of year when self-help centers are busiest. It may easier to obtain services by going there in person rather than through the telephone.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Credit Card Surcharges

2011-12-01T19:55:22Z

Q: I stopped at a new convenience store near my house on my way home the other night, and when I went to pay for my purchases I noticed they had a note taped over the debit/credit card machine that said I would be charged an extra 75 cents if I paid with a debit or credit card, unless the total purchase was $10 or more. Well, I had no choice since it’s the end of the month, so I used my credit card and paid the extra 75 cents, but I was steamed! Is this legal?
-- Cody

A: Credit and debit cards are a convenient option for many consumers. However, they can be very expensive for merchants, who must pay the issuing bank a fee every time they swipe a card. These fees vary, based on the issuing bank and the type of card, but generally range from 1-3% of transaction amount, plus a per-transaction flat fee of 5-20 cents. For merchants with a small profit margin, these transaction fees can really be a drain on their bottom line. Some merchants try to pass these fees on to the customer by imposing a fee for using a credit or debit card.

California Civil Code 1748.1 prohibits merchants adding surcharges or any additional fees when a customer pays for goods or services using a credit card. However, the law does allow merchants to offer “cash discounts” to encourage customers to pay with cash or check, rather than a credit card. Although the outcome is similar – customers paying with a card are charged more than those using cash – there is a fundamental difference between a credit surcharge and a cash discount. With a credit surcharge, the consumer is paying more than the marked price simply because they’re using a card for payment. This can lead to an unpleasant surprise at the register, when the bill is more than the customer would expect based on marked prices. With a cash discount, customers paying with a card pay the marked price, while customers using cash pay less than the marked price. Customers paying with a card are charged the expected amount based on marked prices, while cash customers get a welcome discount.

Although credit card surcharges are illegal in California, there is no law limiting surcharges for debit card transactions. Last year, then-Governor Schwarzenegger vetoed SB 933, which would have prevented merchants from imposing surcharges when consumers use debit cards. However, the merchant agreements for both Visa (rule 6.3) and MasterCard (rule 5.11.2) prohibit the practice.

Keep in mind that “convenience fees” for using credit or debit card are allowed for some merchants, under both state law and merchant agreements. These are generally available to public-sector merchants, like schools, utilities or the IRS.

Until recently, merchants were legally prohibited from setting purchase minimums for credit card use. This was changed with a provision of 2010’s Dodd-Frank Wall Street Reform and Consumer Protection Act. The new law allows merchants to set a minimum purchase as high as $10, as long as it is applied to all cards, regardless of issuer.

If you believe a merchant is in violation of State or Federal law or their merchant agreement, you can make a report to your credit card company, or to the California Attorney General’s office.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian: Collecting on a Small Claims Judgment

2011-11-18T17:47:17Z

Q. I am the Judgment Creditor in a small claims case. My judgment was by default. In lieu of a debtor’s examination I am planning to use interrogatories. Is my debtor entitled to a witness fee? Also, is a judgment debtor entitled to witness fees for coming to a debtor’s exam?

Thank you,
Grant

A. Good news! You will not need to pay the debtor any witness fees.

After plaintiffs win a judgment, they are on their own trying collect it from the defendants (now called the "debtors"). In order to find out what assets the debtor has, and where they are located, plaintiffs are entitled to do post-judgment discovery, including interrogatories and an in-person debtor's examination.

The law authorizing post-judgment interrogatories does not require witness fees. (California Code of Civil Procedure (CCP) section 708.020.) CCP § 708.020 also refers to the rules on pre-trial interrogatories. (CCP §§ 2030.010 and following.) Those sections do not require a witness fee, either.

A debtor’s examination also does not require a witness fee. Debtors’ examinations are covered by CCP § 708.110 through CCP § 708.205. While CCP § 708.120 provides that a third party who is examined is entitled to mileage, it makes no such provision for the debtor. (Generally, third-party witnesses are entitled to receive "ordinary witness fees" of $35.00 per day and $.20 per mile, round trip. Cal. Government Code § 68093.)

You mentioned that this was a small claims case. I’m curious whether the debtor sent you a Statement of Assets. In small claims cases, the debtor is automatically required to send you a “Judgment Debtor’s Statement of Assets” (Judicial Council Form SC-133) within 30 days of the Notice of Entry of Judgment. CCP § 116.830. You don’t mention whether the debtor did this, and I’m guessing not, since it covers the same questions you most likely would ask in your interrogatories – employment and pay information, bank accounts, real estate, and personal property. If you didn’t receive it, the debtor is technically already in contempt of court.

If you didn’t receive the Statement of Assets, there is a special form to use to set up a debtor’s examination after a small claims case: “Order to Produce Statement of Assets and to Appear for Examination” (Judicial Council Form SC-134). (If you did receive it, but need more information, you would use an “Application and Order for Appearance and Examination,” Judicial Council Form EJ-125.) To get copies of documents such as pay stubs, you can use the “Small Claims Subpoena and Declaration” (Judicial Council Form SC-107) or a standard “Civil Subpoena Duces Tecum” (Judicial Council Form SUBP-002).

If you want more information about the examination or your other options, you may want to contact the free Small Claims Advisor at the courthouse. You can find out more about their free services by visiting the Sacramento County court’s Small Claims Court website. If your case is in another county, check the California Courts website for a link to your county’s advisors . For information on this and many more subjects, visit the Sacramento County Public Law Library, “Providing Free Public Access to Legal Information for over 100 years.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - When does a minor have to get parental consent for medical care?

2011-11-10T17:40:21Z

Q. I’m currently working on a project for my ethics class. In this project I play the role of a risk manager who provides information to a 15 year old patient asking for medical emancipation. Do you know of any good resources where I can find more information on medical emancipation because I haven't been successful in my research? Thank you so much for your time, I appreciate it very much.

Best Regards,
Maria

In most cases, parental consent is required for a minor’s medical treatment. There are, however, exceptions, known as “medical emancipation” statutes. These statutes, which allow minors to consent to medical treatment without parental knowledge, approval, or consent, fall into two categories: “general” medical emancipation statutes, which are based on a minor’s status, and “limited” medical emancipation statutes, which apply to specific, designated medical conditions. Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997).

Examples of general medical emancipation statutes are California Family Code § 7002, which provides that a minor who has become emancipated by reason of a court order, marriage, or active duty in the United States armed forces is considered an adult for purposes of consenting to health care services; and California Family Code § 6922, which provides that minors who are 15 years of age or older, living away from home, and managing their own financial affairs, regardless of the source of their income, may consent to their own medical care.

Limited medical emancipation statutes cover certain circumstances where the state’s interest in protecting the health of minors is considered to outweigh a parent’s right to make medical decisions on behalf of their children. Minors may be reluctant, because of embarrassment or fear, to tell their parents about medical conditions resulting from specific conduct. Consequently, minors may postpone or avoid seeking needed medical care if they are required to obtain parental consent prior to receiving treatment for those conditions. California’s limited medical emancipation statutes include:

Family Code § 6924(b) A minor 12 years of age or older may consent to mental health treatment, counseling, or residential shelter services if (1) the minor is mature enough to participate intelligently, in the opinion of the health care provider, and (2) the minor is either a danger to himself or herself or others without the treatment, or is the alleged victim of incest or child abuse.

Family Code § 6925: A minor of any age may consent to care related to the prevention or treatment of pregnancy.

Family Code § 6926: A minor 12 years of age or older may consent to treatment of an infectious, contagious, communicable, or sexually-transmitted disease.

AB 499 (2011): Beginning in January 2012, minors 12 years of age and older may consent for medical care related to the prevention of sexually transmitted diseases.

Family Code § 6927: A minor 12 years of age or older may consent to treatment of care related to the diagnosis or treatment of rape.

Family Code § 6928: A minor of any age may consent to care related to the diagnosis or treatment of sexual assault.

Family Code § 6929 A minor 12 years of age or older may consent to care related to the diagnosis or treatment of drug- or alcohol-related problems.

Health & Safety Code § 121020: A minor 12 years of age or older may consent to HIV testing.

For more information on medical emancipation, see www.teenhealthlaw.org. For information on this and many more subjects, visit the Sacramento County Public Law Library, “Providing Free Public Access to Legal Information for over 100 years.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian-Bicycles and Sidewalks

2011-11-03T22:12:00Z

Q. I just moved to Sacramento and have noticed many people riding bicycles around town. Biking to work would be ideal, but I’m worried about dealing with traffic in certain areas and would be tempted to ride part of the way on sidewalks. I have a hunch this is illegal, yet I see cyclists doing this pretty often. Could I be ticketed for riding my bike on a sidewalk?

- Dan

A. Sidewalks are invariably appealing to bicyclists: smooth, level surfaces that facilitate cruising and offer a cushion of safety from approaching vehicles and their drivers, some of whom may still be using handheld devices to talk or text. Despite popular belief, sidewalks can be lawful segments of bicycle routes, but we recommend researching local county and city ordinances, relevant signage, and the area’s official bike routes before risking a potential citation, or worse. Pedestrians will always have the right-of-way on sidewalks, and cyclists should always exercise caution, especially riding in areas with heavy foot traffic.

Bike laws are generally a municipal matter, so your research should begin with the local county and city codes: the Sacramento County Code and the Sacramento City Code are available online and in print at the Sacramento County Public Law Library, or your local county law library. Sacramento County Code, Section 10.12.010 (b) states “notwithstanding the provisions of subdivision (a) of this section, any person may ride a bicycle on a sidewalk which is designated by the director as a part of the County bike route system and which is identified for such use by appropriate signs giving notice thereof. A bicyclist using a sidewalk as authorized by this subdivision shall yield the right-of-way to any pedestrian using the sidewalk.”

The Sacramento City Code is even more specific in Section 10.76.010 (A): “Except as authorized under subsection B of this section, no person shall ride a bicycle on a sidewalk except within a residence district or where a sidewalk is designated as part of an established bicycle route. Pedestrians shall have the right-of-way on sidewalks.” Subsection B lists exempted groups, such as medical personnel, law enforcement, and those with special permits.

Both the city and county ordinances reference “bike routes” as an exception to the prohibition of bicycles on sidewalks, and that these routes will be identified by signs. The next step, then, would be to research designated bike routes in the area and the signs that indicate their locations. Many counties and cities will have this information online; Sacramento County's website offers information on bikeways, as well as a map of existing routes. Also available on the website is the Sacramento County Bicycle Master Plan, adopted in April 2011, which includes descriptions of different bike paths and their corresponding signs. If you have additional questions, you may want to contact the transportation department of your city or county.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian- Divorce Nullifies Power of Attorney Between Spouses

2011-10-27T19:49:09Z

Q:
Hello I'm e-mailing with a question about the law of Power Of Attorney. My parents have been divorced now since "2006” in "2005" my Dad gave my Mom Power Of Attorney over his personal affairs. My parents have been separated since "1989" but have always maintained a good relationship. Lately my Dad has been showing sing of early Alzheimer’s and we have concerns because it seems that due to their divorce the Power Of Attorney is no longer valid! Is this a fact or is there something we can do to ensure that My Mom remains a vital part of My Dads affairs! I’m not sure and we need to know because there are properties involved and health care issues. So if u could help us out with some helpful info it would be nice. Thanks!!
-Iris

A:
I’m sorry to hear about your dad’s ailing health. It is true that in California, a divorce will nullify a power of attorney, if it was created between spouses before the divorce. The California Probate Code states that if after executing a power of attorney the principal's (your dad) marriage to the attorney-in-fact (your mom) is dissolved or annulled, the principal's designation of the former spouse as an attorney-in-fact is revoked. The California Probate Code also states that the power-of-attorney can be revived by the principal's remarriage to the attorney-in-fact.

If remarriage is not a possibility, and if your dad has the legal capacity to make the decision, he can execute another Power of Attorney listing your mom as the agent or attorney-in-fact. If your dad is able to understand and is willing to sign a Power of Attorney or Advanced Health Care Directive, these may be all that is needed to re-instate your mom’s authority. These forms are available at the law library’s website at http://www.saclaw.org/pages/forms-page.aspx .

However, since your dad is suffering from early Alzheimer’s, he may not be competent enough to do this. The law library has several books you can look at to help determine legal capacity, including: Capacity and Undue Influence: Assessing, Challenging, and Defending: Here's How and When To Do It published by CEB.

If your dad does not have the legal capacity to execute another Power of Attorney, then a Conservatorship may be an alternative for your family. A conservatorship is a legal arrangement in which a responsible adult oversees the personal care or financial matters of another adult considered to be incapable of managing alone. The person who cannot care for him or herself is called the conservatee. The person or organization the judge chooses to do this is known as the conservator. A conservator can be a family member, friend or professional person. California law on conservatorships can be found in the Probate Code beginning at section 1800.

A California conservatorship must be formally established through a court proceeding. The proposed conservator must first file a Petition for Conservatorship to initiate the court proceeding. Once the petition has been filed, the clerk will set the matter for hearing. The hearing will generally be set 45 days from the date of filing. Sacramento County may have some local forms requirements.

The law library has created Legal Resource Guides on Power of Attorney and Conservatorships that will help you get started in your research. These Legal Resource Guides are available from the law library’s website at http://www.saclaw.org/pages/legal-research-guides.aspx .The law library also has other materials available, including sample forms and general information that cover both of these topics.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Past-Due Traffic Tickets

2011-10-20T21:22:32Z

Q: I got a traffic ticket a while back, and missed my court date. I’d totally forgotten about it until I got something in the mail last week, saying I owed money on my outstanding ticket. It’s a huge amount now, with interest and late fees, etc. Can I ask for a payment plan or community service? I don’t have the money to pay the ticket right now.

-Tanya

A: The payment of past-due traffic tickets is handled through the Sacramento County Department of Revenue Recovery. Periodically, the agency sends out letters regarding outstanding balances, in an attempt to collect money owed to the County. If you receive a letter from the Department of Revenue Recovery and wish to pay the amount in full, you can do so online, by mail, or in person. Unpaid tickets are eventually assigned to a third-party collection agency.

If your outstanding ticket is still being handled by the Department of Revenue Recovery, the court still has jurisdiction over your case. This means that the court can still change the amount you owe, order traffic school, allow community service, etc. To make this type of request, you will need to go to the traffic court at 301 Bicentennial Circle between 8am and 4pm, Monday-Friday. You will receive a same-day hearing.

Once an outstanding ticket is assigned to the collection agency, the court no longer has jurisdiction over your case. This means that the court can no longer modify the amount you owe, or allow options such as community service or traffic school. Your must negotiate directly with the collection agency about setting up a payment plan. Your driver’s license will remain suspended until you pay all fines and fees on your record.

If your ticket was due to be paid before January 1, 2009, you may be in luck. The state recently announced a limited-time “Amnesty Program” for outstanding court debts. With this program, California Superior Courts are offering a 50 percent off discount on some old, unpaid traffic tickets. The program will be available January 1, 2012-June 30, 2012. The eligibility requirements may vary from county to county. More information about the amnesty program is available at www.courts.ca.gov/partners/941.htm.

www.saclaw.org

Ask the County Law Librarian - Renters' Rights in Foreclosures

2011-10-06T22:04:52Z

Q. I have been renting a house for more than a year. I just got a notice that the house will be sold at auction at the end of this month. Do I have to move out then? That’s not nearly enough time to find a new place! And do I have to pay this month’s rent? I will need the money for a deposit on a new place. -Allan

A. Don’t worry – you will not have to move out at the end of the month. Exactly how long you have depends on who buys the property at auction, and whether your lease is month-to-month or until a certain date, but you will get at least 90 days notice. The trustee’s sale may even be delayed – this frequently happens. But you do have to keep paying rent!

With all the foreclosures going on, this situation is pretty common. When the mortgage crisis started, tenants were caught in a real bind – foreclosure wiped out any leases that were signed after the loan was taken out, and the new owner could evict them on 60 days notice.
This caused so much hardship that a new federal law was passed protecting tenants: the “Protecting Tenants at Foreclosure Act of 2009” (Pub. L. no. 111-22, 123 Stat 1660 (2009)). This law expires on December 31, 2012, unless Congress extends it before then.

Under this law, if the mortgage loan is “federally related” (almost all are), the lease survives the foreclosure. This means that the tenant can stay until the end of the lease. Month-to-month tenants must get 90 days' notice before eviction. The law doesn’t apply to tenants who are close relatives of the former owner who got a sweetheart deal for below-market rent.

There is an exception for buyers who plan to move in to the home themselves. In this case, the lease ends, but the tenants are still entitled to give 90 days’ notice.

So if your lease extends until a certain date, and the property becomes bank-owned, you are set until the end of the lease. If your lease is month-to-month, the bank must give you at least 90 days notice to move out. If the buyer plans to live in the home, you must receive 90 days notice to move out.

You do still have to pay rent though! You can still be evicted for cause, including non-payment of rent. Starting on the day of sale, rent should be paid to the new owner. If you have a security deposit, the new owner should also be responsible to return it when you leave.

For more information, read the Nolo article “Tenants in Foreclosure: What Are Their Rights?” or the Nolo Press book “California Tenant’s Rights.” The California non-profit group Tenants Together sponsors a “Foreclosure Rights Hotline” at 1-888-495-8020. Housing and Economic Rights Advocates has a more extensive list of tenants’ rights in foreclosure, including discussions of cash for keys, right to maintenance, and more.

Good luck!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Service by Publication

2011-09-29T22:16:14Z

Q. I want to sue this guy who sold me a bill of goods, but he has disappeared off the face of the planet and I can’t find him anywhere. I thought I read somewhere that I could just put a notice in the newspaper and that would be ok. How do I do that?

A. When filing a lawsuit, you are required to serve the other party with your summons and complaint, to notify them of the lawsuit. If the other party cannot be located, you will have to ask the court for permission to publish the summons in the newspaper. Publication of Summons, as set forth in California's Code of Civil Procedure section 415.50, is considered a method of last resort. The court can only approve your request for an Order for Publication of Summons if you show that the other party cannot be served in any other manner. You will need to prove to the court that you have made exhaustive attempts to locate the other party. The California Courts Self-Help Website suggests numerous ways to track people down under “Finding Someone in Order to Serve Him or Her” at http://courts.ca.gov/selfhelp-serving.htm. The Law Library also has a guide to “Finding People & Businesses,” available on our website at http://www.saclaw.org/pages/finding-people.aspx.

After all these attempts, if you are still unable to locate the other party, you may ask the court for permission for publish your summons in the newspaper. To do this you must complete an “Ex Parte Application for Order for Publication of Summons,” a “Memorandum of Points and Authorities,” a “Supporting Declaration,” and an “Order for Publication of Summons” for the judge’s signature. You must also obtain declarations from anyone else involved in the search for the other party. There are no fill-in-the-blank forms for these documents, which must be typed on 28-line pleading paper and otherwise conform to the California Rules of Court, starting with Rule 2.100, and any other local rules regarding the format of papers to be filed with the court. Luckily, the Law Library has prepared sample pleadings, and instructions for completing those pleadings, that you can download for free and adapt to your facts and circumstances at http://www.saclaw.org/pages/legal-research-guides.aspx. Scroll down and look for "Service by Publication: Step-by-Step."

Most often the reason a request for Publication of Summons is denied is because the court does not feel that adequate steps have been taken to attempt to find the person to be served. If the court grants the order to publish, however, your next step is to publish the Summons in a newspaper of general circulation in the location where the party was last known to reside. The newspaper will publish your Summons once a week for four weeks, then provide you with confirmation of publication. Pursuant to Government Code § 6064, service is deemed complete on the 29th day after the first date of publication. If the other party has not filed a response 30 days after the effective date for service, you may file for default against the other party. You will then be able to continue your case without the other party’s participation.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Dogs in Public Places

2011-09-22T23:08:19Z

Q. I have been seeing an increasing number of people who take their dogs everywhere: cafes, restaurants, flights, bookstores, libraries. At first I thought only service dogs were allowed in these types of situations, but most of the dogs have nothing that identifies them as service animals, and some of them look too small to be of any help to the owners! Is this legal in California?
-Mason

A. As with many other legal questions, the answer to this question is “it depends.” The laws and regulations regarding dogs in public places vary based on many factors, including federal and state laws and regulations, local ordinances, the businesses’ policies, and the dogs (and owners!) themselves.

If the dog is indeed a service or assistance animal, then the Americans with Disabilities Act (ADA) and California Civil Code Section 54.2 guarantees disabled owners and their dogs access to public places such as restaurants, stores, movie theaters, and libraries. Contrary to popular belief, service dogs are not required to wear any identifying equipment or tags, nor are their owners required to carry documentation of their status. In the same vein, owners or employees of public places are prohibited from inquiring about the owner’s disability or the dog’s training. If the dog’s purpose is not obvious, they are allowed to ask a) if the animal is required because of a disability and b) what tasks it is trained to perform. (28 C.F.R. § 36.302.) A public accommodation’s requirement to accept service animals is enforced by the Department of Justice. For information on this issue, go to http://www.ada.gov/service_animals_2010.htm.

It’s not unheard of for people to take advantage of the above laws by claiming their dogs as service animals. Many businesses prefer to avoid confrontations or legal issues that might come with an inquiry and will look the other way if the occasional Yorkshire terrier or teacup Chihuahua accompanies its owner into the establishment; some businesses may be dog-friendly. If the dog is not a service animal, then other state laws and regulations, as well as local ordinances, come into play. For example, many state health codes have laws that prohibit animals from being in food service establishments due to possible contamination and public hygiene, and local ordinances have the authority to restrict animals from such places even if state law does not. It’s best to check both the state code and your local county and city codes for any such prohibitions. You can find these resources at your local public law library or on the Internet. To find the law library nearest you, go to www.publiclawlibrary.org.

In other places, like theaters, malls, or small businesses, the issue is often dependent on the company’s policy or the owner’s personal preference. Before you visit an establishment, contact the owner to ask if they allow dogs (on a leash, of course). Websites like www.dogfriendly.com allow dog owners to scout out places that accept dogs, although keep in mind that some jurisdictions have enacted breed-specific laws. For more information on this topic and other dog-law issues, we suggest Every Dog’s Legal Guide: A Must-Have Book For Your Owner, published by Nolo Press. If you live in California, another helpful resource is Nolo’s Guide to California Law, specifically the chapter on dogs (pg. 171).

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Suing the Government

2011-09-15T20:36:51Z

Q-
I want to sue the State of California, the County of Sacramento, the City of Sacramento, and any other state or local government entity that was involved in depriving me of my civil rights in an incident last March. I was talking about my plans with my cousin, and she told me the statue of limitations was six months. I thought the statues were longer than that--years, not months. Irregardless, I'd better get started--so how do I sue the State?

Trinity

A-
Thanks for your question. Bringing an action against a public agency or its employee presents special procedural requirements. Before a lawsuit or complaint can be filed with the court, the injured party must first file a claim with the government agency. The agency will typically conduct an investigation and either agrees with your allegations and settles the matter with you or disagrees, and rejects your claim. Once the claim is rejected, you will be notified in writing that you can pursue the matter in court. This is often called your “right to sue letter”. According to the California Government Code section 945.6, you will need to sue within 6 months of receiving the letter, but other “statute of limitation” sections may apply, particularly if you do not receive the written letter.

For your claim, the California Government Code section 910 sets forth the requirements for the required contents of the claim. However, in order to help people comply with this section, “fill in the blank” claim forms are provided by many government agencies and are often available on the internet. For example, claim forms for the State of California, the City of Sacramento, and the County of Sacramento are all available online. For other local government agencies, the law library has put together some information on finding other Government and Police claims.

If the agency you are hoping to sue does not have a claim form available, you can always draft your own using samples here at the law library. I would suggest looking at book called California Government Tort Liability, a practice guide published by CEB. It is a great place to start your research into this area of law, particularly since there are specific time limitations for filing a claim and many immunities within the act which you will want to take a look at. Finally, once you get your right to sue letter, you are ready for the next step: to file a lawsuit in court.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Patenting Recipes

2011-09-08T22:31:38Z

Q: I recently opened a bakery where I use recipes that have been in my family for generations. I’m worried about my competitors getting a hold of these recipes, and using them in their own bakeries. Can I patent my recipes, to keep them from being used elsewhere?
Thanks!
Arielle

A:
Recipes can be patented, as long as they meet the requirements that apply to any other type of invention. There are several basic requirements you will need to meet in order to patent your recipes.

First, your recipe must fall into one of the patentable subjects described by Federal law. To be patentable, your invention must be a "new and useful" process, machine, manufacture or composition of matter. The US Supreme Court has ruled several times that the only categories of things that cannot be patented are laws of nature, natural phenomena, and abstract ideas. Generally, recipes would fall into one of the patentable categories.

Federal patent law also requires that your invention be useful. As long as your invention is capable of achieving a useful result, it will meet this requirement. A delicious baked good is, in my opinion, a useful result.

The next two requirements are usually the biggest hurdle to obtaining a patent. Federal law requires that your invention be “novel” and “nonobvious.” “Novel” means that it has some significant physical or methodical differences from all prior inventions that are publicly available before the date of your invention or more than one year before your patent application. “Nonobvious” generally means that someone who is skilled in the particular field would consider the invention to be an unexpected or surprising development. It cannot be just the next logical step or change to an existing patent.

These two requirements may be a problem for you in patenting a recipe. To meet the “novel” requirement, you will need to prove that your recipe is significantly different than any other recipe that came before yours, and that was not publicly known more than one year before you apply for the patent. If your recipe has been in your family for generations, chances are it’s been publicly known for years. For your recipe to be “nonobvious” it will need to include something that would surprise skilled chefs. Simply adjusting ingredients and measurements will not likely be enough to make your recipe nonobvious.

Federal law also limits patents to the inventor or discoverer. This means you can only patent your own recipe. You probably cannot patent your grandmother’s recipe, since you did not write it yourself.

After reading all this, you may decide that a patent doesn’t suit your situation, and wonder how you can protect your recipes from other bakeries. Companies like Coca-Cola and KFC rely on trade secret law to keep their secret recipes out of the hands of competitors. A trade secret can be anything that gives you a competitive advantage, such as a special recipe or formula. To be considered a trade secret, you must take steps to prevent competitors and the public from accessing your recipe. Unlike a patent, there is no application process for a trade secret. Instead, you just take reasonable precautions to keep your information secret, like keeping your recipes locked away when not in use, or having your employees sign a nondisclosure agreement. The Uniform Trade Secrets Act prevents others from copying, using, or benefitting from your secret without your permission. If anyone steals or divulges your trade secret, you can ask the court to issue an injunction preventing further disclosure or use of your trade secret. This law does not protect against people “discovering” your secret, by reverse engineering your recipes, though. The Nolo Press website offers more information about trade secrets.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Digital Afterlife

2011-09-02T02:18:04Z

Q. My 32 year old brother died recently in a motorcycle accident. He doesn't have much in the way of assets but he does have a Facebook account with lots of photos and a Twitter account that reflects all of his musings. Is there a way for me to get access?

A. The companies that have created the most popular places and tools for online expression have specific policies usually buried in "Terms of Service Agreements" and often involve some effort, like providing a death certificate. Facebook offers to "memorialize" the profile when an individual dies. It deactivates certain features and resets various privacy controls, converting the account to a place where friends can leave remembrances. The process doesn't give much direct control to any heir or executor of the content.

Twitter offers a full archive of a deceased user's tweets to their survivors.

Gone are the days you inherit a physical scrapbook or a diary and this has inspired a variety of entrepreneurs to create startups that manage the details of your digital afterlife. These services store passwords and document your wishes for who gets access to what accounts into a kind of adjunct to a traditional will. The digital beyond lists such services.

There is even a book on this topic: Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy by Evan Caroll and John Romano.

I am sorry for your loss and hope accessing these accounts preserves your brother's legacy.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian -- Public Access to Mug Shots

2011-08-25T19:46:42Z

Q. Is it possible to obtain an individual's booking photo using the booking number at a County jail?

Thank you,

Rebecca

A. There are several reasons a person might want to see booking photos (also known as “mug shots”). They are a popular part of news stories on crime, especially when celebrities or particularly newsworthy crimes are involved. In some cases, a person may want a photo to help them identify a person who may wish them harm, but whose appearance may have changed. Academic or other studies may be another potential use for booking photos.

Although a few police or sheriff’s departments routinely release booking photos, and some even post them online, in many cases they are reluctant. You can start by simply contacting the sheriff department or jail records department and requesting the photo. You may find, however, that many—including the Sacramento county jail—will not release them in response to a simple request.

Your next step could be to file a request under the California Public Records Act (California’s equivalent to the Freedom of Information Act). The CPRA (California Government Code Sections 6250 through 6276.48) requires public agencies to permit inspection of their records.

According to the advocacy group First Amendment Coalition, it’s unclear under California law whether the police are required to release booking photos.

Booking photos are a “public record” (“any writing [including photographs] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency”). (Cal Government Code 6522(e).)

However, records of investigations and investigatory files compiled by law enforcement agencies are exempt from the CPRA requirements. (Cal. Government Code 6524(f).) In 2003, the California Attorney General issued an opinion that mug shots fall within this exception. 86 Ops. Cal. Atty. Gen. 132, 135 (2003). As a result, law enforcement agencies may, but are not required to, disclose them. Attorney General opinions do not have the force of law, but courts tend to give them great weight when deciding a legal question for the first time.

The 6524(f) exemption itself has an exception: the agency must release the arrested person’s “physical description including date of birth, color of eyes and hair, sex, height and weight,” in addition to the name of the person and information about the circumstances of the arrest. The First Amendment Coalition suggests that “[o]ne could argue that a booking photo falls into this category of records that must be released, since it does no more than visually show information that a law enforcement agency is required to release anyway.”

To use the CPRA to get a booking photo, your first step is to write a request letter. The First Amendment Coalition has a sample of what such a letter should include.

If the letter does not work, you can try re-filing the request with a higher-up official, or you can file a lawsuit to enforce your CPRA rights right away.

If you file a lawsuit, and the court agrees that the records should have been released, you are entitled to reimbursement of your fees and any attorney costs. The First Amendment Coalition has a useful page on filing such a lawsuit. They also offer a Find-A-Lawyer service to match potential litigants with First Amendment specialists, sometimes at reduced rates.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – How to Stop Wage Garnishment

2011-08-18T17:34:54Z

Q. I just got a default judgment against me by a credit card company. I didn’t bother answering the summons and complaint because I figured I didn’t have any defenses—I spent the money but couldn’t pay the bill. A friend told me they could go after my wages, now, though, and take 25% of them until my credit card bill is paid. I don’t make that much money; we live paycheck to paycheck and I can barely afford to feed my family and pay my rent and other bills, which is how I got into this problem in the first place. Can they really take a quarter of my paycheck? Is there anything I can do about this now?

Jin

A. You could attempt to obtain “relief” from the default judgment, but you must prove you had a specific reason under California law, for example, “excusable neglect” under the Code of Civil Procedure § 473(b), for a court to grant relief from a default judgment. Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. You also must show that you have a meritorious defense to the original case. Given what you said in your question, it doesn’t sound like you would be successful pursuing relief from default, but you should read the Legal Resource Guide about the process on our website at http://www.saclaw.org/pages/relief-from-default.aspx, so you know all the options.

A judgment creditor can go after your bank accounts and other personal property, your real property, and even put a lien on a lawsuit you have against someone else. You can read about those measures on the California Court’s Self-Help Website at http://www.courts.ca.gov/1179.htm. “Wage garnishment,” however, is probably the most popular method creditors use to collect judgments, because it is the quickest and easiest. A creditor can garnish, or take, up to 25% of the amount you earn over the federal minimum wage, unless part of your paycheck is exempt under other rules.

In order to garnish your wages a creditor must ask the court for a Writ of Execution, which is an order directing the Sheriff to enforce the judgment in your case in the county where your assets are located, and an Earnings Withholding Order (EWO). Once granted, the Sheriff serves your employer with the EWO, which requires the employer to pay part of your earnings to the Sheriff. Once your employer instructs you that they have received an EWO you have 10 days in which to file your Claim of Exemption and a Financial Statement with the Sheriff’s department listed on the EWO. There is nothing you can do until your employer receives the EWO.

A Claim of Exemption is the form you must file with the Sheriff to explain why some or all of the wages the creditor wants your employer to garnish should be exempt (excluded). Enforcement of Judgments, Form EJ-155, lists most of these exemptions.

Your employer will hold on to the money garnished until either: 1) 10 days go by and the creditor does not oppose your claim of exemption; or 2) the judge makes a decision on the claim of exemption. If the creditor does not oppose your claim of exemption, you employer will return the wages to you.

If the creditor opposes your claim of exemption, you will receive a Notice of Opposition to Claim of Exemption and Notice of Hearing on Claim of Exemption that will set a court date for a judge to make a decision, probably within the month. If the judge agrees with your claim of exemption, you will get your money back. If the judge agrees with the creditor, your employer will send the money to the creditor every month until your judgment is paid in full.

The court reviews all oppositions to claims of exemptions and makes a Tentative Ruling on whether to allow a claim the day before the scheduled hearing. These Tentative Rulings are posted and available for viewing after 2:00 p.m. on the day before the scheduled hearing. The tentative ruling will become the final ruling on the matter unless either party asks for the hearing to be held. If you would like the judge to hear oral arguments, you must notify the other party, the other party's attorney, and the department clerk of your intent to appear at the hearing no later than 4 p.m. the day before the scheduled hearing. If you do not give this notice, your hearing will be taken off the schedule and the tentative ruling will become the final ruling of the court. For more information on the Court’s Tentative Ruling System and how to view the tentative rulings, see the Legal Resource Guide on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Parole Records in California

2011-08-11T21:33:03Z

Q. How would I find out the parole status of a person in Riverside County? They were recently put on parole after violating probation a number of times.

-Barbara

A. It depends on what you mean by “status,” but there are resources that might help answer your question. The California Department of Corrections and Rehabilitation (CDCR) has some helpful web pages on the parole process in California, including the Parolee Information Handbook. This handbook includes descriptions of parole conditions or requirements (page 9) and common parole definitions (page 8). For example, the conditions of parole are written rules the parolee must follow. When one’s conditions and parole period (time one must spend on parole) have been satisfied, one is discharged from parole. All parolees in California have an identifying CDCR number that can be searched in private (law enforcement personnel only) and public databases.

So, what segments of a parolee’s record are public information? Very few, as it turns out. A person’s parole conditions and parole period are confidential and can be accessed by only the parolee and his or her parole agent; this type of information usually cannot be found in the public record. What can be found in the public record is the following data: the parolee’s full name, CDCR number, prison, and, depending on the jurisdiction, case records that may contain pertinent charging and sentencing information. You can find a person’s CDCR number or full name through the Inmate Locator.

Depending on the county, your local courthouse may be able to provide more information in the form of criminal records, case documents, or a brief case history. Sacramento County, for example, offers a case index that, upon entering a person’s name, provides a skeletal history of each case that person was involved in, including charges, pleas, hearings, and the sentence. Local services will vary from county to county, so be sure to consult your local superior court for more information. You can also try contracting the local parole unit if you know the area in which the parolee was sentenced. And, for more information on obtaining criminal records in California, see Ask the County Law Librarian- Criminal Background Checks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Serving Legal Documents to a P.O. Box

2011-08-04T20:29:15Z

Q-
I am involved in a court case and need to serve legal documents and the only address I have for the other person is a mailbox at a UPS store and someone told me that I can’t serve a P.O. Box, is that true?
Joseph

A-
The answer depends on what type of P.O. Box you are trying to serve. If it is an actual post office box that is offered by the federal government, through the United States Post Office, then it cannot be served. However, according to the California Business & Professions Code § 17538.5, you can serve a Commercial Mail Receiving Agency (CMRA) which is commonly referred to as a “post office box” even though legally it is not. CMRAs offer private mailboxes, and these are technically not P.O. boxes. If you know that the person you are suing has a mailbox with a commercial mail receiving agency, you do have the option of serving the agency location with copies of your legal papers.

You are able to serve a commercial mail receiving agency because when a customer rents a private mailbox at one of these agencies, California law requires that they sign an agreement which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer.

Even if the person you are suing has terminated their private mailbox, California law requires that CMRAs accept service of process for and on behalf of any of their mail receiving service customers for two (2) years after termination of any mail receiving service customer agreement. So you may be able to serve the owner or operator of the CMRA within two (2) years after end of the private mailbox rental agreement.

Below are some general steps for serving a CMRA:

1. You must verify the location of the private mailbox. Contact the U.S. Postal Services office and ask for the location of the box. This has the added benefit of allowing you to verify that this box does indeed belong to a CMRA, and is not a federal post office box, which cannot act as agent for service of process.
2. Ask a friend, process server, sheriff, or anyone over 18 years of age and not a party to the case to serve the CMRA owner or operator with copies of your claim.
3. Though not required by law, it is always a good idea to mail a copy of the plaintiff’s claim to the private mailbox itself.
4. The CMRA will send all documents by first-class mail to the last known home or personal address of the mail receiving service customer. Make sure to serve the CMRA at least fifteen (15) days prior to your hearing date.
5. File a completed Proof of Service form with the court clerk five (5) days before your hearing date.

Check out the law library’s Legal Resource Guides for more information on serving your papers.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Calculating Child Support

2011-07-28T18:41:58Z

Q: My ex and I were divorced many years ago, when we were both working at different jobs than we have now. Teenage boys are very expensive, and more child support would really help! I don’t know if it’s worth the hassle of all the paperwork, though, if the support amount won’t change much. Is there any way for me to estimate how much the new order would be?
- Rachel

A: Typically, child support orders can be modified anytime circumstances change, such as unemployment or job promotion. If it’s been several years since your support was determined, and if you’re working at different jobs, it’s very possible that your support order can be modified.

California has a statewide guideline for calculating how much child support should be paid. These guidelines are outlined in California Family Code section 4055. The formula is fairly complex to calculate by hand, but luckily, the website of the California Department of Child Support Services has an online child support calculator to help you. This is the official calculator used by Family Court Commissioners.

The amount calculated using the formula or the calculator is only a guideline. The court takes into account many factors when determining child support. The main factors are discussed on the California Court's Self-Help website's Child Support page.

The family law Self-Help Center may be able to help you with your support questions. They can't represent you in court, but they may be able to help you with selecting and completing the proper forms to modify your child support order. The Self-Help Center is located in Room 113 of the William R. Ridgeway Family Relations Courthouse and is open Monday through Thursday from 8:30 a.m. to 4:00 p.m., excluding court holidays.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian – Adult Adoption

2011-07-14T22:11:11Z

Q. My stepdaughter just turned 18. We wanted to do a stepparent adoption, but her father wouldn’t permit it. She doesn’t get along with her father (it’s a long story) and now that she’s 18, we heard that we can do an “adult adoption” without his permission. Can we do this? How would we do it?

Fred

A. Adult adoption is possible. In fact, it’s a pretty common question here at the law library—so much so that we created a step-by-step guide called “Adult Adoption in California” with instructions and sample forms.

An adult adoption is when someone adopts a person who is 18 or over and not related to them. It changes the legal rights of both of you, and severs the existing relationship with her biological father. A new birth certificate will be issued showing you as her father. Despite this, you’re right: you are not required to get permission or even notify her biological father once she is over 18.

Many people in California do adult adoptions for the same reason you want to do one – to make an existing parent-child relationship “legal” and cut ties with an absent or abusive parent. Other reasons are to ensure a loved one is included in inheritance or to include a disabled person in family benefits.

Same-sex couples sometimes use adult adoption to achieve legal family status. This is less common now that domestic partnerships are available. Occasionally people inquire whether they can adopt a non-citizen to help them come to (or stay in) the US, but adopting a person over 16 provides no immigration benefit.

The process involves filing a set of papers in court (adoption agreement, petition and order, and consent from your spouses), then appearing at a hearing for the judge to approve the adoption order. You can find more information in our step-by-step guide, and if you need more detail than that, you are welcome to visit the law library and do some research on your case.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - "Safe & Sane" Fireworks on New Year's Eve?

2011-07-07T21:16:13Z

Q. Hello,

I found your website and I have a question about fireworks. I happen to have been born on New Year's Eve and always thought it would be fun (weather permitting) to have some of the Red Devil fountains to light . . . I guess they are called safe and sane now . . . in my day, that meant Red Devils!

So, is it legal to set off California legal fireworks any time of year? If not, would I need a permit or something? Also, is it legal to purchase fireworks online, as long as they meet a safe and sane standard?

Also, I would most likely be celebrating with friends in Citrus Heights . . . does that make a difference?

FYI, we would either use the street, or the driveway. I'm totally willing to get oil drip pans and fill them with clay cat litter to catch the sparks. We always have a bucket of water, a hose and a fire extinguisher handy.

Thanks! Any help would be greatly appreciated.

Pamela

A. Hi Pamela!

Nice to see that someone else is concerned with safety when it comes to handling fireworks. Personally, I think “safe and sane fireworks” is an oxymoron, but I realize I am in the minority.

According to the California Code of Regulations, a license isn’t required for the use or discharge of “safe and sane” fireworks. 19 CCR § 981. The specifications for “safe and sane” fireworks is set forth in 19 CCR § 986.6. You can search the California Code of Regulations at http://ccr.oal.ca.gov/linkedslice/default.asp?SP=CCR-1000&Action=Welcome.

California “State Fireworks Law” limits the time period for legally selling “safe and sane” fireworks to between noon June 28 and 10 p.m. July 6th of the same year. California Health & Safety Code § 12599. The state law does not seem to limit the time of year you can set off fireworks; however, “nothing in the State Fireworks Law authorizes the sale, use, or discharge of fireworks in any city or county where that sale, use, or discharge is otherwise prohibited or regulated.” California Health & Safety Code § 12541.

Both the County of Sacramento and the City of Citrus Heights prohibit the possession, sale, use, display or explosion of any fireworks with two exceptions: certain public displays with the written permission of the fire chief that take place under the supervision and direction of a state-licensed operator; and the sale, use or discharge of “safe and sane” fireworks to noon June 28 and 10 p.m. July 5th of the same year. Sacramento County Code § 4.54.320; Citrus Heights Code of Ordinances § 38-68. You can search the Citrus Heights Code of Ordinances at http://library.municode.com/index.aspx?clientID=13326&stateID=5&statename=California.

So, no “safe and sane” fireworks display on New Year’s Eve in Citrus Heights. As for purchasing them online, the State Fireworks Law provides that “it is unlawful for any person to sell or transfer any safe and sane fireworks to a consumer or user thereof other than at a
fixed place of business of a retailer for which a license and permit has been issued.” California Health & Safety Code § 12681.

I’m sorry, Pamela. Don’t worry, though, I’m sure you will have a Happy Birthday anyway—it is the law of safety karma.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Swimming Pool Safety Laws

2011-06-30T23:25:07Z

Q: I recently purchased a home in a nice, family-oriented neighborhood. My neighbors to the left of me have a large swimming pool, which their young children and the children’s friends frequently play in. I’ve noticed that the pool doesn’t have any sort of barrier around it. Isn’t there a law that states pools must have a surrounding fence to protect young children from an accidental drowning? If so, is it my duty to report them?
-Rick

A: With summer upon us (finally!), it’s certainly true that pool owners should be especially vigilant in regard to pool safety measures for children. Laws and regulations concerning pool safety will vary depending on the state and county in which you reside, so be sure to conduct legal research in the appropriate jurisdiction.

In California, Section 115922 of the California Health & Safety Code requires that private pools built or remodeled after 1998 feature at least one of seven safety devices, specifically: an isolating enclosure or barrier; approved mesh fencing; an approved pool cover; an alarm on each house door that accesses the pool; a “pool-use” alarm that notifies the home owner when someone has entered the water; and any other device that offers equal to or greater protection than the previously listed features. Be sure to read the official code section for further details.

Counties and cities may impose further requirements, as long as those requirements do not conflict with state law. Section 15.64.070 of the Sacramento City Code, for example, requires that new or remodeled pools be enclosed by fences with self-latching gates. Homeowners that fail to take this precaution may be cited for an infraction, per section 9.16.090. To be thorough, consult both the city and county codes in your area: according to Chapter 16.18 of the Sacramento County Code, a violation of the County’s Swimming Pool Code (Chapter 16.36) could lead to a citation for nuisance.

Keep in mind that many current “swimming pool laws” were enacted fairly recently and may apply only to new or remodeled pools. Your neighbor’s pool may not be subject to these requirements, so it’s best to gather all the facts before acting. If you live within the city limits of Sacramento, believe your neighbor’s swimming pool to be in violation of the city code, and would like to report it, you can file an online Code Violation Complaint or call 311.

For more information on pool safety requirements, precautions, and helpful resources, you can read the Sacramento County Public Law Library’s Everyday Law article on Swimming Pools, or visit the California Department of Public Health’s “Safety Guide for Home Swimming Pools and Spas.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Fireworks Stands

2011-06-23T20:14:22Z

Q:

I was surprised recently to come home to a fireworks stand in a parking lot adjacent to my house. I feel that it is too close for safety. What are the laws in the city of Sacramento for fireworks stands?

Thank you,

Lori

Thanks for reading and submitting your question! Late June, fireworks stands start appearing seemingly overnight and appear on almost every street corner. Before the individual or organization can set up a fireworks stand in the City of Sacramento, they must first apply for a Permit to Sell Safe and Sane Fireworks. All applicants must provide the city with a public liability policy in the amount of $50,000 and a $25,000 property damage policy and a products liability policy in the amount of $300,000 showing the City of Sacramento as additional insured thereunder.

California has a “State Fireworks Law” that can be found in the Health and Safety Code, Section 12500 – 12728, but it mostly discusses general provisions, definitions, and the classification of fireworks and other pyrotechnic devices. For the answer to your question, we need to look within the ordinances for the City of Sacramento, specifically chapter 8.48.130 which discusses temporary fireworks stands. According to this section, “No fireworks shall be located within twenty-five (25) feet of any other building or within one hundred (100) feet of any gasoline pump or distribution point”. So depending on how close the stand is to your house, there may be a potential violation.

There are other requirements necessary for a fireworks stand, including the number of required exits, two unless the stand is longer than 40 feet, or maintaining two fire extinguishers that are in good working order and easily accessible for use in case of fire. Of course, “No Smoking” signs are to be prominently displayed on the fireworks stand. If you think your fireworks stand is in violation of any of these laws, you can contact your local fire department; chapter 8.48.150 states the fire chief or the chief’s designee may revoke the permit immediately if it is determined there is a violation.

Even though a fireworks stand can be an eyesore, often it is the number one fundraising tool for most non-profit organizations. The stand should be disassembled and removed no later than July 20th.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Neglected Homes

2011-06-16T22:22:45Z

Q: My neighbors moved out a couple of months ago because they were facing foreclosure. They left the house a mess! The yard is totally overgrown, there’s a pile of junk in the driveway, and I’m afraid the pool is going to start growing mosquitoes now that the weather is warming up. Is there anything I can do?
- Karina

A: Unfortunately, you are not alone in this situation. The Sacramento Bee reports that there are thousands of vacant homes in Sacramento, many of which are severely neglected by their owners. According to City estimates, approximately 60 percent of these abandoned properties are bank-owned.

To help combat this growing problem, Sacramento enacted its Vacant Building Ordinance in 2007. Under this law, property owners are required to actively maintain and monitor their property. This maintenance requirement applies equally to individuals, banks, or corporate owners. The Ordinance defines “maintenance and monitoring” as maintaining the exterior of the building, including keeping paint and other finishes in good condition; maintaining landscaping and plants; regularly removing trash and graffiti; keeping the building in compliance with all codes and regulations; and preventing crime and gang activity on the premises. The law also requires posting of the owner’s name and contact information on the front of the building. Vacant buildings not meeting these standards may be considered a public nuisance.

Under Sacramento’s Vacant Building Ordinance, a property owner may be cited with administrative penalties if their property is vacant and not well-maintained for 30 days. The owner can be cited every 30 days until the property is brought into compliance. The initial penalty can be as much as $1000, and up to $5000 for each subsequent penalty. Additionally, the property owner will be charged a $150 monthly monitoring fee, as well as $150 each time a building inspector is called to the property.

If you believe your neighbor’s house does not meet the standards described in the Vacant Building Ordinance, you can file a Code Violation Complaint online or by calling 311. Your complaint will prompt a City inspector to visit the property, and begin the enforcement process. Hopefully this will encourage the owner to clean up the property.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Fixing Errors on Your Credit Report

2011-06-01T23:57:28Z

Q. A couple years ago, a collection agency got a judgment against me without my knowledge. After they started garnishing my wages, I filed a motion to vacate the judgment since I was never served. I won, but the judgment is still showing up on my credit report. How do I get it off? Thanks,

Anya

A. Congratulations on getting the judgment vacated. Since you no longer have a judgment against you, the credit bureaus should remove it from your record. Unfortunately, it’s rarely that easy. Credit bureaus (and the public record researchers who sell them the data) commonly miss changes such as an order vacating a judgment, satisfactions of judgment, and the like. (National Consumer Law Center, Fair Credit Reporting, Ch. 4.3.2.5.2.)

So, what do you do now?

Since your report is no longer accurate, your next step –as with any false or erroneous information on your credit report – is to file a dispute. This triggers a “reinvestigation” by the credit bureau which should result in the inaccurate information being removed. Unfortunately, the dispute process is not reliably effective. Consumers frequently have to file numerous disputes, and sometimes lawsuits, before the errors are corrected. (Fair Credit Reporting, 4.5.1.2.) Here’s how to dispute this or any other problems on your report:

Check all of your credit reports. Check all of the “big three” credit bureaus (Equifax, Transunion, and Experian) to find it if all of them show the judgment. You can order a credit report from each for a fee. Once a year, you can get a free credit report from each upon request by visiting annualcreditreport.com.

Mail a written dispute to each of the bureaus that show the judgment. Although each bureau has a toll-free number for disputes, it is best to use a written dispute to create a record of the request. The online dispute forms you will find at their websites give you limited space and don’t let you attach copies of the order vacating the judgment. (They may also never be seen by a human being.)

There is no required form for a written dispute request, but it should include all of the following:

Thorough identifying information, including full name, current and recent addresses, date of birth, telephone number, Social Security number, name of spouse (if any), and current employment information.
A clear description of the judgment on your credit report, along with a copy of the report with judgment circled;
An explanation of why you are disputing the information (e.g., “This judgment has been vacated by order of the court”), along with a certified copy of the order vacating the judgment. Include specific steps for the investigation (“contact the records department of the court at [phone number] to verify this order”);
And finally, a direct request that the CRA delete or correct the information.

Click here for a sample of such a letter on the FTC’s website.

Consider signing your dispute letter under oath, in front of a notary. This converts it to an affidavit, which boosts its credibility and may get it more in-depth review. Fair Credit Reporting, 4.5.2.4.2-9.

Make sure to send it to the correct address for each bureau. Certified mail, return receipt requested, is advised. Keep copies of all correspondence and the return receipts in a separate file folder for each agency. Fair Credit Reporting, 4.5.2.4.3.If you speak to someone on the phone, make a note of the date, person you spoke with, and outcome and put it in the file folder, too.

Under the Fair Credit Reporting Act (FRCA), the credit bureaus must then investigate the dispute, and forward all the relevant data to the information provider (“furnisher”) that sold them the information in the first place. The furnisher then must investigate and report back to the bureau.

When the investigation is complete, the credit bureau must give you the results in writing and a free copy of your report if the dispute results in a change. If you ask, the bureau must send notices of any corrections to anyone who received your credit report in the past six months (two years for reports used for employment purposes).

The bureau will also give you contact information on the furnisher. Some people find that even after they clear an item off their record, it pops up again months later, because the furnisher leaves the inaccurate information in its files, and sends it out again to the bureau. To prevent this, send your dispute directly to the furnisher as well.

What if the dispute is denied?

Disputes often receive very cursory review and are denied almost automatically if the basic information matches the furnisher’s files. If this happens, you can request that a statement of the dispute be included in your file and in future reports.

Unfortunately, you may need to repeat the dispute, perhaps with telephone follow-up, to get a more thorough review. Filing a complaint with the FTC (https://www.ftccomplaintassistant.gov/) or the Better Business Bureau (http://complaint.bbb.org/) is another way to get your dispute taken seriously. If you have tried several times without result, you might even try calling your congressional representative or senator to ask them to call the FTC and demand action.

You may even need to file a lawsuit. If you do, under the FCRA, you may be entitled to actual damages (court costs, attorney’s fees, lost wages, and defamation) and in outrageous cases, punitive damages. The library has several books that may assist you with this, including general books such as Nolo’s Represent Yourself in Court and more specific books such as the National Consumer Law Center’s Fair Credit Reporting, which has an in-depth description of how the credit report business works, detailed information on how to file a lawsuit, and sample court forms.

Visit the Federal Trade Commission’s website for more information on your credit report rights and how to dispute items on your credit report.

Best of luck with your quest to clear your credit report!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian -- Is demanding a receipt a violation of rights?

2011-05-26T18:32:33Z

Q. I was wondering if it is legal in California for retailers like WalMart and Best Buy to ask customers for their receipts as they exit the store. As a paying customer, I resent being treated like a criminal. It is because of practices like this that I shop online whenever possible. I understand that membership stores like Costco and Sam's Club have user agreements that allow them to check receipts against items in your cart, but without such an agreement is WalMart violating my rights?

Thank you for your time.

Ally

A. Best Buy and WalMart have certainly started a trend--more and more stores across the country are asking to see receipts upon exiting these days. It may be inconvenient, but it saves you money in the long run—prohibiting theft helps keep your costs down. It doesn’t violate your rights for them to ask for a receipt; you can always refuse and keep going. Only if the security guard then stops you might any violation of rights occur.

California Penal Code (CPC) §490.5(f)(1) provides that “a merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.”

Furthermore, CPC §490.5(f)(2) provides that “[i]n making the detention a merchant . . . may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property.”

CPC §490.5(f)(3) goes on to state: “[d]uring the period of detention any items which a merchant . . . has probable cause to believe are unlawfully taken from the premises of the merchant . . . which are in plain view may be examined by the merchant . . . for the purposes of ascertaining the ownership thereof.”

And, in CPC §490.5(f)(4), “[a] merchant . . . having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises . . . may request the person detained to voluntarily surrender the item . . . . Should the person detained refuse to surrender the item . . . a limited and reasonable search may be conducted . . . in order to recover the item. Only packages, shopping bags, handbags or other property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched pursuant to this subdivision.

Finally, CPC §490.5(f)(7), ‘[i]n any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances.

So . . . if you refuse to show a security guard your receipt and continue walking to your car with your bag of merchandise, does that constitute probable cause to detain and possibly search your bags? It depends upon the circumstances, but most likely, yes. What would you think if you were in the security guard’s position?

What if the security guard looked in your pocket for your wallet and pulled the receipt out of there? Would that be a violation of your Fourth Amendment right to be free of unreasonable searches and seizures? Nope, the Fourth Amendment only applies to police officers and other state actors, not to private store employees. You may be successful in a suit against the store for false imprisonment, however, because the California state statute specifically excludes clothing from the parameters of a limited and reasonable search.

Whatever you do, don’t overreact. You are not being targeted or insulted; everyone is being asked to present their receipt, so don't take it personally. You don’t want to end up like the Bethlehem, PA, man who was sentenced to six-twelve months in jail for yelling at and threatening the Wal-Mart greeter who asked to see his receipt, or the Utah Wal-Mart shopper who now faces criminal charges for disorderly conduct because he cursed at a greeter, threatened to injure a security guard, and screamed at police officers who were called to the scene.

If you really just cannot bring yourself to show them your receipt, don't lay yourself open to criminal charges by aggressive or belligerent behavior. Remain calm and continue walking. If you're detained and think the store security guard acted unreasonably, remain cool and call the police to handle the matter. Especially if you've got nothing to hide.

www.saclaw.org

Ask the County Law Librarian - Neighbors and Their Trampolines

2011-05-19T22:54:17Z

Q. I share part of a fence with the neighbor behind me and they put a trampoline up against the fence so when their kids and friends jump they clear the top of the fence by a couple feet and look into my yard and home. Their yard is higher on the hill than mine which makes the trampoline sit even higher at the fence, and my yard is an odd wedge shape, narrowing on the side they have the trampoline so that the distance from my bedroom and living room window directly to where the trampoline sits is only about 10 yards. I've explained and asked them nicely once if they could "scooch the trampoline over a bit." This made the mom defensive and unreasonable and she later squirted me with her hose over the fence. I am embarrassed having kids, usually several at one time, jumping and looking over right into my bedroom just yards away when I'm sometimes in bed. Moving the trampoline a few yards away would solve the problem. Is there any law or protocol regulating fence privacy? Thank you.

Cathy

A. When an issue between neighbors arises, there are many options available to those willing to invest a little time and effort into preliminary research. “Neighbor law” is usually governed locally, so your first step might be to survey the options closest to you.

For example, if you and your neighbor belong to a homeowners’ association (HOA), subdivision, or other development, you might check the by-laws (also called Covenants, Conditions, and Restrictions or CC&Rs) for any limitations, restrictions, or prohibitions relating to trampolines or other play structures. If your neighbor isn’t technically violating any rules, you might have the option of initiating an informal complaint process with the association. You can find more information on homeowners’ associations online or at your local county law library.

You will also want to research your local city and county ordinances. Some city and county ordinances regulate the location of “accessory structures,” though what constitutes an accessory structure will vary depending on the jurisdiction. For example, Sacramento City Code 17.80.050 considers some children’s play structures as detached accessory structures (swing sets, for example) and accordingly provides minimum installation requirements. However, the ordinance does not consider mobile play structures as accessory structures and thus these structures are not regulated by county ordinance. Sacramento County Code §16.18 pertains to nuisances and available remedies, though generally the term ‘nuisance’ refers to an act or device that jeopardizes one’s safety or health. Nonetheless, a thorough look at your local county and city codes is highly recommended for all neighbor law issues. Most California city and county codes can be found online or in print at your local county law library.

At least one California city has dealt with this type of situation before. Earlier this year, Mill Valley’s City Council met to determine whether a trampoline could be considered an accessory structure and thus be subject to the city’s zoning laws. After considering a fact pattern very similar to yours, it concluded that trampolines were not accessory structures and therefore could not be governed by city ordinances.

Though many neighbor law questions can be answered by consulting local resources, some issues are governed by state law. California Civil Code § 3479, for instance, governs “private” nuisances that are “indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…”

If you feel you have a cause of action based on a state law, the proper forum would be either small claims court (for monetary damages) or your county’s superior court (for an injunction and monetary damages). However, this route is likely to be both time-consuming and costly, and your claim first must meet certain legal standards and have evidentiary support. You can find California statutes online at www.leginfo.ca.gov/calaw.html

One helpful book that discusses all of these resources and many more is the 7th edition of Neighbor Law: Fences, Trees, Boundaries & Noise, published by Nolo. Nolo Press is a Berkeley-based publishing house that specializes in self-help law books written with the layperson in mind. Neighbor Law’s introductory chapter contains information on “tackling” a neighbor problem, including sources of preliminary research, techniques for approaching the neighbor, and methods for pursuing the issue (e.g. the local authorities, mediation, or court). For more information on mediation, see Ask the County Law Librarian: Fence Dispute and Alternatives to Court.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Damages for Security Breach of Sony Playstation Network

2011-05-13T00:17:38Z

Q:

I saw your column on Sac Press and thought maybe you can help. I am a customer of Sony’s PlayStation Network for online gaming, recently they had a security breach and Sony notified me that some of the information released to hackers includes my full name, address, phone number, email address, PlayStation user ID and password, and credit card information, just to name a few. I know this info has gotten into the wrong hands due to the huge amount of spam email I am now getting. My concern is primarily with identity theft as my credit card company has stated they are aware of the issue and I have zero fraud liability, but some of my friends may not be so lucky as they used debit cards and I was told that those do not have nearly the same protection. Is Sony liable if my identity is stolen? Can I make them pay for something like a credit freeze to keep the bad guys from buying a car in my name? And what about my friends who were not lucky enough to have a credit card and used a debit card for their online gaming? I don’t even know where to start, can you please help?

Jim

Thanks for reading and submitting your question! It appears that the lawsuits for damages against Sony are already beginning. A Massachusetts woman was among the first to file a lawsuit against Sony over a hack into the company's PlayStation Network video game service. According to the Boston Business Journal, the class-action lawsuit was filed in U.S. District Court in Boston on May 5, 2011. The plaintiff is alleging Sony stored and retained customer data without authorization, failed to maintain a proper firewall, and did not properly encrypt the data it held. The suit also calls the electronics giant out for delaying for almost a week after it knew of the breach, to notify affected customers. You can read a copy of her complaint for more details of the case.

The real question is not whether or not you can file a lawsuit to recover damages, but rather, once you file your lawsuit in court, will you be able to win your case? Well, in order to prevail in court, you will most likely have to prove that actual damages have occurred. So it would depend on if you actually suffer damages from this incident. According to an article written by Mark Foley, lawsuits seeking to recover significant damages based on the loss of, or unauthorized access to, sensitive personal information have not been especially successful for plaintiffs since inconvenience, and threat may be hard to prove in court. Most companies try to alleviate damages by offering to provide identity theft monitoring to affected customers and Sony is no exception.

ABC News is reporting that Sony is now offering 12 months of free identity theft protection to affected customers. Customers have until June 18th to sign up and should be receiving a detailed email soon with information on how to sign up. If you don’t receive your email, I would contact Sony as soon as possible in order to get further details. Ultimately, if your identity is stolen, you can read the law library’s Everyday Law article for tips on what you can do to protect yourself.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Power of Attorney

2011-05-05T18:34:24Z

Q: My wife and I are temporarily moving to southern California to care for her ailing mother. My brother has agreed to take care of things for me while I’m away. I can handle a lot myself online, but just in case, I want him to be able to access my bank accounts, sign documents for me, and handle my personal business while I’m down south. Will a power of attorney do that?
-Brian

A: A power of attorney may work for your situation. By signing a power of attorney, you (the “principal”) are giving another person (the “agent” or “attorney-in-fact”) the legal authority to act on your behalf. California law prohibits your agent from writing, changing, or revoking your will (Probate Code 4265). Other than that, you can grant your agent whatever powers you wish.

There are many types of powers of attorney available, depending on your needs. Limited or special powers of attorney restrict the agent’s power to a specific transaction or type of transaction, such as selling your car or caring for your child. Powers of attorney for health care grant your agent authority to make medical decisions for you. Financial powers of attorney can grant your agent broad authority to conduct most types of business and personal transactions. The laws related to powers of attorney are found in the California Probate Code starting at section 4000. The type of power of attorney you use will depend on what your agent will be doing for you.

Powers of attorney may be durable or non-durable, depending on whether you want your agent to retain authority to act on your behalf if you become incapacitated. The California Probate Code section §4401 creates a “Uniform Statutory Form Power of Attorney,” which can be used for durable or non-durable financial powers of attorney. This form allows you to grant your agent powers to perform a variety of common transactions, such as buying and selling real estate; managing your stocks and bonds; handling your banking transactions; running your small business; and collecting your public benefits. Using this form, you select which powers you wish to grant, and can provide special instructions limiting or extending these powers. If this form is sufficient for your needs, you can use the downloadable version on the Law Library’s website. If this form doesn’t fit your needs, the Law Library has resources with many other sample powers of attorney that you can use to draft your own. Keep in mind, some banks and other financial institutions require that you use their power of attorney form, so check with them to see if a special form is needed. More information about powers of attorney is available from the Law Library’s website.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Fence Dispute & Alternatives to Court

2011-04-28T21:18:04Z

Q. There is a boundary fence between me and my neighbor's side yard. It is leaning and I have propped it up for the last time. I have gotten two estimates from reputable fencing companies. My neighbor is refusing to pay half to replace it. I don't want to go to court. What else can I do?

A. More people are like you wanting to avoid going to court and solving matters using alternative dispute resolution. Using alternative dispute resolution can save you time because it is easier and quicker to write up an agreement than it is to go to court. It can save you money on attorney's fees, court costs and other expenses. It also gives you more control over the case and the outcome since you are actively creating a workable solution.

You may want to consider mediation. Mediation is a voluntary process in which two or more parties involved in a dispute work with an impartial party, the mediator, to generate their own solutions in settling their conflict.

The mediator's role is to facilitate communication between the parties, not to impose solutions. Mediators do not advise, take sides or render a judgment. Instead, the mediator will work with all the parties to help them reach a mutually acceptable resolution.

Private mediators are listed in the yellow pages. Also some lawyers advertise in their phone book listing as providing mediation services. In Sacramento there is the non-profit that provides mediation services: Sacramento Mediation Center a program of California Lawyers for the Arts. http://sacmediation.org/.

As a first step, Chapter 11 of the 7th edition of Neighbor Law: Fences, Trees, Boundaries & Noise by www.nolo.com has detailed information about state and local laws regarding fences. It also has a section on Responsibility for Maintenance.

Coral Henning, Director
@coralh & @saclawlibrarian

Ask the County Law Librarian – There Oughta Be a Law

2011-04-14T15:38:31Z

Q: I have a great idea for a new California law. Our kids get nothing but junk food at their school cafeteria for lunch. They should be learning about – and eating – fresh, healthy food. I want to get a law passed that requires every elementary, middle and high school with a school lunch program to also have a school garden to supply students with fresh fruit and vegetables. How do I get this law passed?

Paula

A: Dear Paula,

Laws are created in one of two ways in California: through the legislature, or through an initiative.

Bills in the State Legislature

Most new laws (or changes in laws) start when a state senator or Assembly member drafts and proposes a bill. People in a certain age range may remember the Schoolhouse Rock cartoon “I’m Just a Bill,” describing this process for federal laws. It’s similar in California, but in real life, the process is complicated by many sub-steps and opportunities for delay. Bills go through a lengthy process of debate, amendment and approval, first in one House then the other, before being signed (or vetoed) by the Governor.

Call, write, or email your representative to suggest a bill. You can also contact the representative’s office to schedule an appointment with him or her. Contact the local or Sacramento office to set up a time to meet. Be prepared with information about the problem your bill would address, how current law deals with this problem, and how your suggestion would improve things.

You can contact any representative, but you are more likely to get a personal response from the Assembly member or senator who represents your own district. To find out who your representatives are, visit “Your Legislature” and enter your zip code.

Once a bill is introduced, there are many things you can do to help get it passed, from organizing letter-writing campaigns, writing letters to the editor, and offering to testify at committee hearings. Tips on these and other methods of lobbying for your bill can be found in “A Citizen’s Guide to Lobbying” and “How to Lobby the California State Legislature,” both put out by the state government.

You can trace the progress of any particular bill through the lengthy process of debate, amendment, and approval by visiting the official California legislative information site’s “Bill Information” page. You can even sign up for an email whenever something happens with your bill.

Passing a Law by Popular Vote: The Initiative Process

California is one of 24 states that use the initiative process. The initiative is the power of the people of California to propose statutes and amendments to the California Constitution (Cal. Const., art. II, Section 8(a)). The laws governing the initiative process are mostly at California Election Code, starting at section 9000.

Initiatives are placed on the ballot if the sponsors can collect enough signatures to qualify – 5% of the number of voters in the last gubernatorial election (currently 504,760 ) for statutes, and 8% (currently 807,615) for Constitutional amendments. If approved by a majority vote, an initiative becomes law the next day.

Getting an initiative on the ballot takes a long time – if you start now, you might be able to get one on the June 5, 2012 ballot. There are also very specific requirements for format and signature gathering. You can read about the process in the California Secretary of State’s “Initiative Guide.”

The first step is to write the text of the law. Next, the sponsors are required to submit it to the California Attorney General, who writes the official title and summary, and if necessary, submits it for fiscal analysis. The AG's office has a good explanation of the process on its website. After that is complete, the sponsors have 150 days to circulate the petition and collect the necessary signatures. Both volunteers and paid signature-gatherers are allowed.

Once the signatures are gathered, the sponsors file the petition with the officials in each county, who count the signatures and report the results to the Secretary of State. If the initiative gathers enough signatures, it goes on the next statewide ballot.

For more information, visit the California Secretary of State’s website or contact the Secretary of State's Initiative Coordinator at (916) 657-2166.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Disqualification of Judges

2011-04-07T19:29:13Z

Q. My wife and I are getting a divorce, and the judge is making all her rulings in my soon-to-be-ex’s favor for no good reason that I can see, except that the judge doesn’t like me—she seems to be biased against men. What can I do to get rid of this judge? Can I report her to the State Bar?

A. The law and procedure for the disqualification of California superior court judges, court commissioners, and referees, is in the Code of Civil Procedure (CCP), sections 170 through 170.6. There are two basic methods a party can use to ask that a judge be disqualified from their case:

1) CCP §§ 170-175 provides the justification and procedure whereby a party may take action toward disqualification of a judge “for cause.”

2) CCP § 170.6 guarantees to parties the right to disqualify a judge without any showing of cause whatsoever. This is called a peremptory challenge.

A Section 170.6 challenge is permitted at any time before the commencement of a trial or hearing on a substantive matter in either civil or criminal court. Each side is allowed a peremptory challenge one time only. You have no control over the judge assigned to take over your case, so avoid hasty or ill-informed decisions to disqualify.

A peremptory challenge is usually made by a written motion to the court, done in proper format with specific language and supported by a declaration or affidavit made under penalty of perjury. An oral motion under oath is also allowed. There is no hearing or ruling on a timely and properly-formatted peremptory challenge. The replacement is automatic, and the case will continue as quickly as possible, perhaps hours or days, under a new judge.

There are specific deadlines and strict time frames in which a peremptory challenge must be made, depending on your court’s calendaring system. Improper timing is the number one reason that challenges are rejected.

Even if your deadline has passed for filing a timely peremptory challenge, however, you still have the right to challenge the judge for cause under CCP § 170.1. Grounds for a just cause challenge (relationship, financial interest, etc.) can arise at any time during the proceedings. Therefore, a challenge for cause is timely if raised “at the earliest practicable opportunity” after discovering the grounds for disqualification, even during trial.

Step by step procedures and sample formats for written motions, supporting declarations, and affidavits for both of these disqualification methods can be found in a set of books called California Forms of Pleading and Practice, Volume 27, Chapter 317, “Judges.” You can find this set of books at the Sacramento County Public Law Library.

The State of California Commission on Judicial Performance, rather than the State Bar, reviews complaints that charge judicial misconduct. Procedures and the form of complaint for judicial misconduct can be found on their website.

A judge’s incorrect ruling on its own does not constitute judicial misconduct. A judge who commits legal error is subject to investigation and possible discipline only if the legal error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duties. If the incorrect ruling or legal error does not meet these standards, then it is not subject to disciplinary review. However, it may be grounds for an appeal in your case.

www.saclaw.org

Ask the County Law Librarian - Obtaining Evidence for a Contested Traffic Citation

2011-03-30T19:35:06Z

Q. I’ve decided to contest a speeding ticket I received recently. How do I obtain all of the police records and evidence against me?

A. Before you contest your citation, you may want to consider submitting an “Informal Discovery Request” to the issuing agency. Under California Penal Code Sections 1054-1054.7, the prosecution in any criminal case (including infractions) is required to provide the defendant with copies of all written statements, reports, and logs regarding the case. This code section also applies to a copy of the engineering and traffic survey if your citation is a radar case [Cal. Penal Code § 1054.1(f)].

Fortunately, you can submit this request before you formally challenge the citation, in order to review evidence the issuing party may use against you in court. Your copy of the ticket, for example, will not include the notes about the stop that the issuing officer most likely made on the reverse of his or her copy of the citation. Once the issuing agency receives your request, it has 15 days to provide the relevant information. One caveat: the request requires you to submit all of your evidence as well: you will include the names, addresses, and statements of any witnesses you may have with your request.

There is no statewide “official” discovery request form for Section 1054 requests, but a book published by Nolo Press and written by Attorney David W. Brown called Fight Your Ticket in California contains both blank and sample completed forms, as well as instructions. This book also contains the information and strategies you would need to:

-determine if your ticket is beatable
-challenge speeding citations & other violations
-present your case in court
-appeal a conviction

Should you choose to formally challenge the citation, you can subpoena relevant records, equipment, and the issuing officer’s testimony during the trial prep phase of the case by using a Subpoena Duces Tecum (CR-125/JV-525). Samples of this form are available in the book, and the form is available for free online from the California Courts website at http://www.courtinfo.ca.gov/forms/fillable/cr125.pdf You will need to read the information carefully and conduct further research to be sure you’ve done everything properly.

Fight Your Ticket in California is available directly from the publisher at www.nolo.com, from most large bookstores and libraries, and from your local county law library. To find the law library nearest you, go to www.publiclawlibrary.org

For online resources about contesting a traffic citation, you can find more information on the Sacramento County Superior Court website at http://www.saccourt.ca.gov/traffic/traffic.aspx and on the California Courts Self Help website at http://www.courtinfo.ca.gov/selfhelp/traffic/info.htm.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Domestic Violence Restraining Orders

2011-03-25T01:32:44Z

Q-
I am afraid of my boyfriend. We just moved in together last month, and ever since then, he has been shouting and cursing at me. He also pushed me down and punched a wall. I want to break up with him, but I am afraid he will hurt me. Can the law help protect me?

Anonymous in Midtown

A-
I am sorry to hear about your situation! If you feel in are in immediate danger, call 911!

California’s Domestic Violence Protection Act defines domestic violence as abuse toward an intimate partner or family member. The abuse can range from verbal threats, annoying telephone calls, stalking, hitting, and destruction of personal property. If you ever have to call the police, ask for an emergency protective order. A police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night. Explain in detail to the police officer why you're afraid. The emergency protective order starts immediately and can last a week. The judge can order the abusive person to leave the home and stay away from you and your children for up to a week.

If you want protection for more than a week, you can ask to the family court to issue a Temporary Restraining Order (TRO). If the restraining order is granted, it typically requires the abuser to stay at least 100 yards away from you, and have no contact with you, including no email or telephone contact.

The Sacramento family court offers a free workshop on form preparation fro domestic violence restraining orders, Monday and Friday, excluding court holidays, at 8:45 a.m. This class is for both men and women and is held in the Self-Help Computer Room, Room 113A, on the first floor of the William R. Ridgeway Family Relations Courthouse, 3341 Power Inn Road. No appointment is necessary. For those who cannot attend the workshop, the court encourages you to complete your forms using TurboCourt. This program uses simple questions to gather all of the necessary information to apply for a domestic violence restraining order. If you will be filing in Sacramento, be sure to include the mandatory local forms.

You may want to contact WEAVE, INC. (Women Escaping a Violent Environment). WEAVE is a local nonprofit organization that was created to serve domestic violence survivors and their families in Sacramento County by offering counseling and other services including; dissolution & restraining order workshops, and a pro bono legal clinic or free attorney consultation for domestic violence.

Keep in mind that a restraining order can help protect you, but it is still just a piece of paper. A restraining order can lower, but not eliminate the risk of ongoing violence.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Proper Venue in Small Claims Court

2011-03-17T18:29:03Z

Q:
I want to sue a former neighbor in small claims court. She promised to pay half of the cost for a fence we built on the property line last year, but never did. She recently moved down to San Diego County. Do I have to go to San Diego to sue her, or can I do it in the Sacramento court?

- Jessica

A:
Picking the proper court to file your case can be tricky. If you file in the wrong court, your case may be dismissed, and you’ll have to start over again in the proper court. The proper court is called “venue” in legal terminology.

California law has strict guidelines for determining proper venue. In some situations, there may be several courts that could be considered proper. In that situation, you may select whichever court you prefer.

A small claims case may always be filed in county where the defendant resides. Other courts may also be the proper venue, depending on your case. In addition to the county where the defendant lives, proper venue for common case types also include:

where the damage occurred
where the contract was entered into, broken, or was supposed to be carried out
where the buyer lives, made the purchase, or where the item is located, if your lawsuit involves the sale or purchase of merchandise

More information about the proper venue for a small claims case is available from the California Courts’ Self-Help website at http://www.courts.ca.gov/9745.htm.

Information about Small Claims cases in general is also available from the California Courts’ Self-Help website at http://www.courts.ca.gov/1256.htm, as well as from the Department of Consumer Affairs and from the Sacramento Superior Court.

Additionally, the Law Library has books that provide excellent background information about Small Claims court, as well as instructions for filling out the necessary forms. You may also want to visit the Small Claims Advisory Clinic, which may be able to assist you with your case.

www.saclaw.org

Ask The County Law Librarian - Collecting on a Small Claims Judgment

2011-03-11T20:22:07Z

Q. I just won my small claims case against my landlord for wrongfully withholding my security deposit. Does the court collect for me?
Jenny

A. The court will not collect the money for you. The court can issue the orders and other documents you may need to collect your judgment from the debtor. You can start the collection process when the time to appeal runs out (30 days after entry of the judgment); or if there was an appeal and you won, after the appeal decision (judgment) is sent back to the small claims court, usually about 10 days after the appeal decision.

Encourage the debtor to pay you voluntarily and don’t resort to harassment or illegal collection methods. Some of the most common collection techniques include: placing a lien on real property, placing a lien on business property, seizing wages and seizing bank accounts.

If the judgment debtor does not pay within 30 days after the court clerk mailed the Notice of Entry of Judgment the debtor must send you for SC-133 Judgment Debtor’s Statement of Assets. This form will tell you what property the debtor has that may be used to pay the judgment.

Sometimes the debtor won’t send the completed form and then you can file SC 134 Application and Order to Produce Statement of Assets and Appear for Examination. This summons the debtor back to court and you can ask the debtor questions about his or her assets or property. You can ask about things like where he or she works, how much he or she earns, bank accounts, stocks, other income sources, property and belongings, and anything else that can be used (or sold) to pay the judgment.

Once you know about the judgment debtor’s income and property you can ask the sheriff to take that property to pay you. To do this fill out and ask the court clerk to issue Form EJ-00 1 Writ of Execution. Take the form to the Sheriff’s civil division with a description of the debtor’s property that you want to levy on.

Click on the link for more information on collecting your judgment. The law library has information on this too. One good resource is Nolo’s How to Collect When You Win a Lawsuit in California.

Lastly, keep in mind that not all judgments are collectable because the debtor may not have any income or property of value.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the Law Librarian: The Perils of Co-Signing Loans

2011-03-04T01:19:31Z

Q. I co-signed my sister’s car loan. She made payments for the first two years, but now she is unemployed and I’m worried she might not be able to make the payments. What rights do I have? If I have to make the payments, do I at least get the car?

Janice

A. It sounds like you are well aware that if your sister doesn’t make the payments, you will have to. Sometimes people co-sign a loan as a favor, without really understanding just how big a favor it really is – the co-signer isn’t just vouching for the borrower, or offering to pay half the debt, but is actually accepting responsibility for paying the whole debt if needed. Once the borrower misses a payment, the creditor can go after the co-signer without even trying to get the money from the borrower first. Read the FTC’s brochure “Co-signing a Loan” for more information about the risks of co-signing and possible protective measures.

Federal and California law require that you be given notice of the serious consequences of co-signing a loan before you sign.

California law also gives you two additional protections. The creditor cannot report you to a credit reporting agency unless it also gives you written notice of the delinquency before or at the same time. And before the creditor provides any information about your obligation to a debt collector, it must first give you written notice of the delinquency. (Cal. Civ. Code 1799.101.) If the creditor fails to give this notice and your credit is injured or you lose money as a result, you can sue the creditor for actual damages or $250, whichever is greater, plus reasonable attorney’s fees. (Cal. Civ. Code 1799.102.)

So what happens if you do in fact end up paying the loan (or worse, being sued for the debt)? You are entitled to sue your sister for repayment. Of course, you may have no more luck collecting than the creditor did. If it does come to that, talk to the Small Claims Advisor if the amount is less than $7,500, or come in to the library to research your options.

You probably can’t get ahold of the car, unless you are listed as a co-owner on the title. Actually, it’s pretty likely that if your sister does default, the creditor will repossess the car, sell it, and come after you and your sister for the remaining balance on the loan.

If you actually want the car, maybe you can buy it from your sister and take over the payments. This could save everyone’s credit rating, although Sis might end up taking the bus for a while.

www.saclaw.org

Ask the County Law Librarian – “Quashing” Improper Service of Court Documents

2011-02-24T16:14:47Z

Q. I was handed a summons and complaint for breach of contract, but I didn't sign for it, so I don’t think it is legal. I want to challenge this in court. How do I do that?

Tom

A. Probably the most common misconception regarding service of the summons and complaint in civil cases is that the receiving party must sign something in order for the service to be valid. A summons may be served by personal delivery of a copy of the summons and complaint to the person to be served. Such service is deemed complete at the time of delivery (California Code of Civil Procedure §415.10). There is no requirement that the person being served sign for anything.

The most common mistake that people make when serving court documents is that they serve the documents themselves, rather than having a person who is at least 18 years of age and not a party to the action serve them (California Code of Civil Procedure §414.10).

Improper service of the summons, however, is not a defense to the underlying facts of the lawsuit, nor does it have any effect on the running of the applicable statute of limitations. You can challenge the validity of the service by filing a motion to quash service of summons on or before your last day to file an answer, or at any later time if the court finds good cause (California Code of Civil Procedure §418.10), but this typically has little effect on a case other than to cause a brief delay. If your motion to quash service of summons is granted, the court will simply require that you properly served.

For this reason, and because of the time and effort involved in preparing a motion to quash service of summons, many defendants choose instead to ignore the issue and simply respond to the lawsuit, assuming they learn about it in time to respond. There is no standardized form for a motion to quash service of summons; and, like most other motions in civil cases, the motion consists of several parts: 1) a notice of motion and motion, 2) a memorandum of points and authorities, and 3) a declaration, with any attachments (California Rule of Court 3.1112). In addition, the motion must be drafted on 28-line pleading paper (California Rules of Court 2.108, 2.111). Although instructions and samples of pleading paper can be downloaded from our website at www.saclaw.org/pages/creating-pleadings.aspx, there aren’t any reputable examples of motions to quash service available for free online. We have both print and online instructions and samples in the Library at 813 Sixth Street downtown, however, and would be happy to show you these resources and, if applicable, how to download samples from the appropriate database.

If the plaintiff in your breach of contract suit is a credit card company or collection agency suing you over a credit card debt, you can find out how to answer the lawsuit on our website at http://www.saclaw.org/pages/respond-to-credit-card-case.aspx. We also offer an "Answer to Breach of Contract Workshop" every Monday through Friday morning in which an experienced paralegal walks you through the entire process of completing the forms used to answer your breach of contract/collection case.

For more on personal service of process of court papers, including a step-by-step guide and an animated video on proper service, go to http://www.saclaw.org/pages/personal-service.aspx

Good luck with your case, Tom, and don’t hesitate to visit us, in person or online, if you need any more help!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Property Left Behind in a Rental Unit

2011-02-17T23:18:08Z

Q: Up until two weeks ago, I was renting a room in a house. I had become friends with the owner and moved in last summer to help us both out with costs. It became very unpleasant to live with her, however, and in December I gave her our agreed-upon 30 days’ notice that I would be moving out. She didn’t take it well, but I managed to move most of my things out (on my own). Due to a family emergency that took me out of the state for a week, I had to leave a few things behind in the garage. When I got back to town and tried to get my stuff, the owner refused! Is she guilty of stealing my things since she won’t let me pick them up? How can I get my stuff back?
- Jessica

A: This scenario is fairly common, and can happen in any situation in which there is a landlord/tenant relationship; for example, whether someone is renting a unit as part of an apartment complex or, as in your case, renting a room in a house. According to California Civil Code section 1965(a)(1), the landlord is required to return, or allow you to collect, your belongings if your request meets two requirements: 1) the request is made within 18 days of vacating the premises, and 2) the request is made in writing and includes a description of the property that was left. The request must be mailed to the landlord’s current address.

If your request meets both requirements, the landlord is legally obligated to respond within five days of receiving the request. She can ask you (in the form of a bill) to pay reasonable costs for storage; if she does, you must pay the charges and pick up the property within 72 hours of receiving the landlord’s demand. What qualifies as “reasonable?” And how should her written request be delivered? Civil Code section 1965 contains the answers to these questions and provides further information on the landlord's storage of the belongings and any storage costs incurred.

If your request meets both of the above-listed requirements, you agree to pay any costs relating to storage, and your ex-landlord still doesn’t comply, you could sue for actual damages and possibly more, if you believe she acted in bad faith [Civil Code Section 1965(e), (1) and (2)].

If more than 18 days has passed since you moved out and your remaining property is worth less than $300, the landlord is free to dispose of it. If it is worth more than that, the landlord must sell it at a public sale, subtract costs of sale and storage, and turn the rest over to the county. You have a year to claim the net profit from the sale (see Civil Code Sections 1983 and 1988).

As in most legal situations, there are exceptions and qualifications. You should conduct further research to find out how the law applies to your unique circumstances. To read the above mentioned Civil Code sections, go to www.leginfo.ca.gov and select California Law. Put a check box next to the Civil Code, and hit SEARCH. A linkable table of contents should appear. Go to the section you are interested in reading.

Another helpful resource is the book “California Tenants Rights” published by Nolo Press. The book is available at large bookstores, large libraries, directly from the publisher at www.nolo.com and from your local public law library. To find the law library nearest you, go to www.publiclawlibrary.org

For online information, the California Department of Consumer Affairs has made available the publication “Options for a Landlord: When a Tenant's Personal Property Has Been Left in the Rental Unit: Legal Guide LT-5.” The guide was published in 1996, so you’ll want to make certain that the code sections you might rely on are still current. You can do this by visiting www.leginfo.ca.gov and reading the current laws. The department website also offers an online version of California Tenants: A Guide to Residential Tenants' and Landlords' Rights and Responsibilities, for a more comprehensive look at the landlord/tenant relationship.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian – Can I Fire My Attorney?

2011-02-10T20:46:59Z

Q: I hired an attorney for my divorce, but he hasn’t done anything! Everytime I call his office, he doesn’t answer the phone. I leave messages but he never calls me back, he just keeps asking for more money even though I have already paid him way too much already. How can I get rid of him?

Mel

A: I'm sorry to hear that! You have a right to discharge or fire your attorney at any time for any reason or no reason at all, even if you still owe him money for the time spent working on your case. It is a fairly easy process, all you have to do is file a Substitution of Attorney form with the court. When filling out this form, you substitute either your newly hired attorney or yourself, if you plan to represent yourself.

If at the time you let him go, there is outstanding money owed, you will still owe the balance. However, there may be options for disputing the amount owed, especially if you have not been given an accounting of the time and money spent on your case. If you believe that your attorney's bill is too high, you should first talk to your lawyer about the bill, and make your concerns clear. You may find that the case was more complicated and took more time than you realized or your lawyer may agree that a mistake was made on the bill and make corrections. If there is still a dispute, the Sacramento County Bar Association administers an arbitration program to assist clients in resolving fee disputes with their attorneys without going to court. You should contact the Sacramento County Bar Association directly for information on disputing the fee and fee arbitration.

All lawyers who practice in California must live up to ethical standards imposed by the California Supreme Court and the state legislature. You can file a complaint with the State Bar of California if you believe that your lawyer acted improperly, but not just because there is some disagreement between you, or you believe he or she did a poor job. Depending on the seriousness of the offense, a lawyer can be given a warning, put on probation, suspended from practicing law for a period of time, or disbarred - prohibited from practicing law in California. For more helpful information on how to handle a disagreement with your attorney, check out this pamphlet from the State Bar of California.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian – Expunging Criminal Records

2011-02-03T23:37:56Z

Q: Several years ago, I was arrested for shoplifting. I haven’t been in trouble since then. Having the conviction on my record is making it hard for me to find a job, though. My friend said I might be able to have the record sealed, since it was a long time ago. Is this possible?

Judith

A: Most likely, yes! California law allows many types of criminal convictions to be “expunged.” This means that the case is reopened, your conviction is dismissed, and the case is closed without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your background check.

Expungement is an option for most types of offenses in which probation was ordered as part of the sentence (Penal Code 1203.4), most misdemeanors even if probation was not ordered (Penal Code 1203.4a), and some types of felonies (Penal Code 17).

If your conviction qualifies under Penal Code 1203.4, Penal Code 1203.4a, or Penal Code 17, you must have completed all aspects of your sentence prior to applying for expungement. In addition to completing your probation or incarceration, you must have fully paid all fines, fees, and restitution ordered in your case. If you have not finished paying these, or if you are currently the subject of any other criminal proceedings, your request for expungement will be denied.

The expungement process is fairly easy, requiring only two forms: CR-180 and CR-181. You will need a copy of your criminal history or case information to complete the forms. If your conviction was in Sacramento County, you should be able to access all the information you need from the Superior Court Case Index. Instructions for filling out these forms, as well as more information about expungement and a video walking you through the process, are available on the Law Library’s website.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Consumer Pet Protection Act

2011-01-28T00:38:14Z

Q. I purchased a pug at a pet store in the Bay Area ten days ago and now the dog is sick. I took Sparky to the veterinarian and she has hospitalized him. I think he will pull through. What are my options with the pet store?

A. California’s Pet Protection Act (Health & Safety Code Section 122125 et. Seq.) gives consumers recourse when they discover that their pet is ill within 15 days after taking possession of the pet from the pet store.

First you must get a written statement from the treating veterinarian stating that the dog is sick and is requiring hospitalization (Health & Safety Code Section 122160). The statement must be delivered to the pet dealer no later than five days after the diagnosis is made.

You have three options:
• Return the dog for a refund of the purchase price and reimbursement for reasonable veterinary fees up to the cost of the dog.
• Exchange the dog for another of equal value and get reimbursement for reasonable veterinary fees up to the cost of the dog.
• Keep the dog and receive reimbursement for reasonable veterinary fees up to 150% of the purchase price of the pet.
(Health & Safety Code Section 122160)

Dealers who knowingly sell sick animals are subject to a penalty of up to $1000.

If the pet store doesn’t dispute the diagnosis, the refund and reimbursement must be paid within ten days after the dealer receives the veterinarian’s statement (Health & Safety Code Section 122180)

For future pet acquisitions, our local City Shelter and the Sacramento SPCA are great options for pet adoption.

Get well soon, Sparky.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian – Finding a Will

2011-01-20T17:57:29Z

Q: How can I get a copy of a will? I believe I was named in my mother’s will but I can’t find a copy. Mom passed away recently and my sister has been transferring Mom’s property into her own name.

Marge

A: We hear variations on this question surprisingly often. Usually, there is nothing mysterious going on. Check with the probate court in the county where your mother was living when she died. If a will was filed or a probate was opened, that is where it should be, and the clerk will be able to find it using your mother’s name and date of death.

In many cases, nothing will be on file with the court. This is probably not a sign of any kind of misconduct. Perhaps your mom never got around to writing a will. Maybe she put her property in a trust, so probate is not necessary. Even if there is a will, there may not be enough assets to justify a formal probate, or it might not have been located yet. And, occasionally, people do hide or destroy wills.

Finding the will: If your sister is handling your mother’s debts and assets, you can ask her if she has located the will or trust documents. If not, check with your mother’s attorney. Search her home or office file cabinets and desks. Contact any banks she used, to find out if she had a safe-deposit box there. Banks will usually let family members open a safe-deposit box in the presence of a bank officer to search for a will or burial instructions, although nothing else may be removed. Be sure to bring a copy of the death certificate.

If you believe that your sister has (or had) the will and is refusing to give you a copy or file with the court, you can petition the court to order her to produce it under California Probate Code Section 8201. There is no preprinted form for this, so you would need to either hire an attorney or come in to the law library and do some research. We have samples of this form that you can customize.

If you do find a will, you can start a probate case. In the case, you (or someone) will have to tally up all of your mother’s assets and debts, settle the debts, and then divide the remainder between the beneficiaries of the will, all under the court’s supervision.

What if there is a trust? If your mother set up a trust, there may never be a probate case. However, the trustee would be required to give you notice of the trust, even if you are not named in it, since you are one of the children. (California Probate Code Sections 16060.5-16061.8.) Therefore, if there is a trust, you should receive information about it, including your right to a copy of the documents. If you don’t get notice, you can sue the trustee for any damages you suffer as a result (including attorney's fees).

What if there is neither a will nor a trust? If there is no trust or will, your mother’s property goes to her surviving spouse or domestic partner. If none, her property should be divided equally between her children under California Probate Code Sections 6400-6414. If that doesn’t happen, you can start a case in probate court to enforce your right to your portion. Again, if you decide to go this route, you would need to either hire an attorney or come in to the law library and do some research.

Do keep in mind that any court action will take a lot of time, energy, and money. Unless your mother’s estate (after subtracting any debts) is fairly big, it may not be worth investing time and money, but that is up to you.

Try just talking to your sister first. She may be transferring money to make it easier to pay off debts and wind up your mother’s affairs, and may not realize that she needs to keep you better in the loop. If you still aren’t satisfied, you can decide whether to take that next step of filing in court.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian -- Children's wishes in custody disputes

2011-01-13T18:53:48Z

Q: I’m going through a horrible, messy divorce, and I’m afraid my worst fear may come true—my 13-year-old daughter wants to live with her father instead of me because the cheating bum is “cool” and I’m just an over-anxious nag. Really he is just lazy so he lets her do whatever she wants and I’m the only one who ever enforces any discipline. A friend told me that there is a new law that says a 14-year-old can choose which parent gets custody. Is this true?

A: Under California law, there is no specific age at which children can make custody or visitation decisions. The California Family Code, section 3042(a)), states that a court must “consider” and give “due weight” to the wishes of children who are of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.”

The legislature amended this law in 2010, so maybe that is what your friend is thinking of. The amendment, effective January 1, 2012, requires a court to hear a child who wishes to address the court regarding custody or visitation if the child is14 years or older, unless the court determines that addressing the court is not in the child's best interests. In addition, a child who is younger than 14 years old and wishes to do so may be permitted to address the court regarding custody or visitation if the court determines that hearing from the child is in his or her best interests.

In other words, if the court determines that the child is mature enough to have informed opinions as to custody and visitation, then the court must use this opinion as one factor to consider when making the custody and visitation order.

Whether the minor is of “sufficient age and capacity,” the threshold prerequisite to consideration of the child's wishes, varies with each child. The requisite maturity is not measured by any particular chronological age.

Obviously the new law has not yet been tested in the courts. In previous case law, however, courts have become more receptive as the child approaches teenage years. In Marriage of Rosson, 178 Cal. App. 3d 1094 (1986), and Marriage of Burgess, 13 Cal. 4th 25 (1996), for example, 10-and 13-year-old children met the “sufficient age and capacity to reason so as to form an intelligent preference” standard. In Stuart v. Stuart, 209 Cal. App. 2d 478 (1962), the court said it would listen to children as young as seven or eight. In Marriage of Slayton, 86 Cal. App. 4th 653 (2001), the court found it doubtful that a 5-year-old could realistically meet the statutory standard. In Marriage of Mehlmauer, 60 Cal. App. 3d 104 (1976), however, the court determined that a 14-year-old boy did not meet the standard and refused to shift custody from the mother despite the child's wishes. The bottom line is that custody is awarded according to the best interests of the child.

The California cases referenced above can be located at http://www.lexisnexis.com/clients/CACourts/ by doing a citation search. After checking the box next to “I have read and agree to these Terms and Conditions,” and clicking on “BEGIN SEARCHING OPINIONS,” click on “By Citation” under the word “Search” on the top left of the screen. Use the “Search by Citation Criteria” template to input your search. For example, in the Stuart v. Stuart case, 209 Cal. App. 2d 478, the first number, 209, represents the volume number of the Reporter the case appears in, so type that number into the “Enter Volume” box. Then, using the pull-down menu, select the abbreviation for the Reporter the case appears in, “Cal. App. 2d.” In the “Enter Page #” box enter the second number in the citation, 478, which is the page upon which the case begins. Finally, click on the “GO” button to retrieve your case.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - California Statutes of Limitations

2011-01-06T23:07:38Z

Q: About six years ago, I lent a friend $600 to help with her tuition and living expenses while she was enrolled in college. We had an informal, but signed, contract that she would pay the money back within one year. She had to stay in school longer than expected because of tough circumstances, and we agreed that she could take longer to pay the money back (but not in writing). I then moved to another state, and have just recently moved back to California. Since I’ve been back, I’ve asked for the repayment several times, but I keep getting excuses. I’m thinking of taking this to court, but a friend says that too much time has passed and that the statute of limitations has run out. Is this true? I thought a statute of limitations only applied to criminal issues.

-Ana

A: Statutes of limitations (also called limitations of actions) apply to both civil and criminal actions. Some people may be more aware of these statutes as the apply to criminal actions, since many popular TV crime dramas mention them in passing: maybe the police can’t charge the bad guy with a crime because the statute of limitation for Breaking and Entering has expired; or perhaps the bad guy can be charged because there is no statute of limitation for murder. Television is well on its way to making us all forensic and legal experts, it seems! The basics of this type of statute are outlined below, but questions on this issue can be complex and may require that you spend some time doing research.

Statutes of limitations are enacted by the state legislature and may contain exceptions, qualifications, or additions depending on the circumstances of your claim. A judge cannot extend the time period unless the statute itself provides such authority, but there are legal doctrines (i.e. case law) that may provide relief from an otherwise expired statute of limitation. Discovering and applying these doctrines requires a thorough understanding of the law and a good deal of research.

The purpose of these statutes is to prevent old or false claims from arising after all evidence has been lost or destroyed, or after the facts have become muddled with the passing years. It is also to encourage those who might have claims to begin an action early, while the evidence is “fresh” and potential witnesses are available.

One aspect that might complicate your research is determining which statute(s) of limitations will control your cause(s) of action (or, why you are suing). States establish different deadlines depending on what the cause of action involves, such as a contract, a personal injury, or real property. Knowing which “category” your lawsuit will fall into will require some research or a consultation with a licensed attorney. Below are some online resources that may be helpful, but for more in-depth information you may want to visit your local county law library.

For civil actions, statutes of limitations can be found in the California Code of Civil Procedure §§312-363, which can be found online at http://www.leginfo.ca.gov/calaw.html or in print at your local county law library. You can browse the sections by clicking the box by Code of Civil Procedure and then clicking search. For criminal actions in California, statutes of limitations are located in Penal Code §799 et seq.

Nolo Press, a publisher of self-help legal materials, provides a brief description of statutes of limitations on its website. Also, the website’s encyclopedia features a useful chart comparing the statutes of limitations for all fifty states.

A few Nolo Press books, including “Everybody's Guide to Small Claims Court in California” and “Win Your Lawsuit in California,"provide explanations of some the statutes applicable to civil actions in California. These books are usually available for purchase in large bookstores, directly from the publisher at www.nolo.com, or online at www.amazon.com. When purchasing any law book on Amazon, be certain that you are buying the most recent edition or update. You can also find these books at your local public library or county law library. To find the law library nearest you, go to www.publiclawlibrary.org.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Heritage Trees in Sacramento

2010-12-30T21:23:03Z

Q-
My neighbor has a tree that is encroaching on my property. When I contacted him to complain, he said it was a protected “Heritage Tree” and that I would have to live with it. What is a Heritage Tree and what can I do about it?

A-
Unfortunately, there may be limits on what your neighbor can do about the encroachment, if the tree is considered a Heritage Tree.

The City of Sacramento passed a Heritage Tree Ordinance, Chapter 12.64 of the City Code, in order to protect specific specimens of trees. The protection of Heritage Trees supports the City’s sustainability goals by promoting scenic beauty, enhancing property values, reducing soil erosion, improving air quality, abating noise, and providing shade to reduce energy consumption.

Trees are considered Heritage Trees if the following applies:

The tree has a trunk circumference of one hundred (100) inches or more, is of good quality in terms of health, vigor of growth and conformity to generally accepted horticultural standards of shape and location for its species.
The tree is a native species with a circumference of thirty-six (36) inches or greater and in good quality in terms of health, vigor of growth and conformity to generally accepted horticultural standards of shape and location for its species. Protected native species include the following: valley oak, interior live oak, blue oak, coast live oak, California sycamore, and California buckeye.
The tree is thirty-six (36) inches in circumference or greater in a riparian zone. The riparian zone is measured from the centerline of the water course to thirty (30) feet beyond the high water line. Species include: Cottonwood, Willows, Boxelders , and Alder.
The tree is part of a grove of trees or woodland trees designated by resolution of the city council to be of special historical or environmental value or of significant community benefit.

Pruning and removal of Heritage Trees requires a permit issued by the Department of Transportation’s Urban Forestry Services. If the tree encroaching your property is considered a Heritage Tree, you or your neighbor can request pruning or removal of the tree by filing a permit application with the Department of Transportation’s Urban Forestry Services. If you have questions, please call Urban Forest Services at 311 or email urbanforestry@cityofsacramento.org

Don’t take the matter into your own hands! According to Chapter 12.64.070 of the City Code, any person who violates any provision of this chapter including, but not limited to, the property owner, a tenant, a licensed or unlicensed provider of tree services retained by the property owner or tenant, or a licensed or unlicensed provider of tree services acting without the consent of the property owner or tenant, is guilty of a misdemeanor which shall be punished by a fine of not less than five hundred dollars ($500.00) and not more than one thousand dollars ($1,000.00) or imprisonment in the county jail for a term not exceeding six months, or by both such fine and imprisonment.

In addition to the base fines imposed on by the city, there may be other administrative costs that can be tacked on. Administrative penalties may be imposed in any amount not less than one hundred dollars ($100.00) nor more than twenty-five thousand dollars ($25,000.00) per violation depending on the level of offense. Most likely, this would be considered a Level C violation, which can range from one thousand dollars ($1,000.00) to two thousand four hundred ninety-nine dollars and ninety-nine cents ($2,499.99).

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Pet Licenses

2010-12-23T19:51:37Z

Q: We’re adopting a dog for our children for Christmas. A friend told me we'd need to get a pet license. Is this true? If so, who do we contact for that?

Bridget

A: Congratulations on the new addition to your family!

Sacramento County, and all cities within the County, require dogs and cats over 4 months of age to be vaccinated and licensed. Sacramento City also requires licensing of mini-pigs.

Each city processes its own licenses, so you will need to contact the Animal Services department for the city where you live. Links to each of those departments is listed below.

Citrus Heights (contract with the County to process animal licenses) - (read the code section here)
Elk Grove - (read the code section here)
Folsom - (read the code section here)
Galt (contract with the County to process animal licenses) (read the code section here)
Rancho Cordova - (read the code section here)
Sacramento - (read the code section here)
Unincorporated Sacramento County - (read the code section here)

Licensing fees vary between cities, and are significantly higher for unaltered animals. One-year licenses for a spayed or neutered dog will be $10-$15. One-year licenses for unaltered dogs range from $30-$150. Most cities offer one, two, or three year licenses, with discounts for the longer licenses. In order to obtain an animal license, you will need proof of rabies vaccination. If you wish to pay the reduced licensing fee for an altered animal, you will also need proof of spay or neuter.

Licensing your pet offers many benefits, especially if your pet gets lost. If your pet is wearing her license tag, animal control officers will attempt to bring her home, rather than taking her to the shelter. Should your pet end up at the shelter, though, the license will extend the time she is held at the shelter.

www.saclaw.org

Ask the County Law Librarian: Amending a Birth Certificate

2010-12-16T21:45:10Z

Q: I gave birth to a beautiful baby boy in September. We named him James, but from day one we called him Kimo, which is James in Hawaiian. We regret not naming him Kimo and I would like to amend his birth certificate. Is that possible?

Lelani

A: Congratulations on the new addition to your family!
Amendments to birth certificates are used to correct errors and cannot be used to change information on the certificate. Changing information on the certificate requires a court order.

Since both parents are in agreement the process is straight forward. All of the forms you need are available here: http://www.courtinfo.ca.gov/selfhelp/other/namechangechild2.htm

First you would complete the Petition for Change of Name including the Attachment to the Petition for one child. Both parents sign the Attachment. Next complete the Order to Show Cause and the Civil Case Cover Sheet. File all the forms with at least 2 copies of each in the court in the county where you live.

You must publish the Order to Show Cause in a newspaper of general circulation once per week for 4 weeks in a row. Bring the proof of publication and the Decree Changing Name form to your court date and the judge will sign it. An appearance may not be required. Here is information about the process from the Sacramento Superior court http://www.saccourt.ca.gov/forms/docs/cv-142.pdf

Once you get a certified copy of the Decree Changing Name you can change your child’s birth certificate, social security card and other legal documents. Visit www.cdph.ca.gov or call (916)445-2684 for information regarding amending the birth certificate.

Another resource is this 60 minute video which explains the process in detail: http://www.saclaw.org/videoDetails.aspx?vid=25

The Sacramento County Public Law Library also has a free Name Change workshop every Monday from 1:30 – 3:30 http://www.saclaw.org/pages/cshc-workshops.aspx

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian — Air Rights

2010-12-11T20:42:17Z

Hello-

Recently I was watching the movie Burlesque starring Christina Aguilera and Cher and a legal issue was raised that piqued my curiosity. In the movie (spoiler alert!) Cher and Xtina are able to save the burlesque club from foreclosure by selling a nearby developer the "air rights" over the club so that the view for the developer's skyscraper will remain unimpeded. Is there such a thing as "air rights" for the space above a building and can one purchase them, or is this just an example of "movie magic"?

Thanks,
Becky

A: Believe it or not, “air rights” are for real, and the deal you describe is entirely plausible. The owner of land generally owns not just a particular bit of the surface of the Earth, but the ground beneath it and the air above it, too. Your neighbor can’t drill sideways into your yard for oil; likewise, he can’t build a deck that hangs over the yard.

Back in the olden days, a land owner owned everything on his plot of land, from the center of the Earth to the outer reaches of the universe. As the English common law classic Blackstone's Commentaries put it, “Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards.” This infinite ownership caused no real problems, since no one could actually get up all that that high, but that changed when airplanes were invented. Technically, airplanes were trespassing whenever they flew above land without permission, regardless of how high they flew.

In United States v. Causby 328 U.S. 256 (1946), the Supreme Court noted that “It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe… [b]ut that doctrine has no place in the modern world.” Instead, the Court ruled that land owners own only the airspace they can “reasonably use,” and that the airspace above that is a public highway.

So, airspace isn’t infinite, but it can be very valuable in the right circumstances. In some places (mostly dense cities), there is a thriving market for air rights. For instance, railroads frequently sell air rights above their tracks, so that people can build on platforms above them. Owners of buildings that use solar energy may purchase air rights from their neighbors to preserve their access to the sun. These are perfectly valid sales; if the railroad or neighbor ever sells its land, the new owners have no rights to the airspace.

I haven’t seen Burlesque, but it sounds like the club found a creative solution to raise money out of “thin air.” The low-rise burlesque club has no use for its air space, while the neighboring developer wants to prevent any future high-rise buildings on the club site. The neighbor now literally owns the air space above the club, guaranteeing that no one can ever build a building tall enough to block the view.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Avoid Probate with Small Estate Affidavit

2010-12-02T01:46:56Z

Q: My mother just lost a long battle with breast cancer. My sister and I were both able to be with her until the very end, which was a good thing, but now my sister is saying we have to “probate her estate.” My mother didn’t own a home or any real estate, only a few items of personal property: an old car, some costume jewelry, nothing anyone but me and my sister would want. All I know about “probate” is that people try to avoid it for some reason—can you tell me what it is and why I would want to avoid it?

Vicky

A: “Probate” is a formal way of distributing a “decedent’s estate,” which is a legal term for the property left by someone when they die. In California, an estate can be distributed as an independent probate proceeding when the decedent left a will or other estate plan, or as a probate court-supervised estate if there is no will. If the property left is worth $100,000 or less, however, there is a third option, which you may be able to use: the estate can be distributed as a “small estate” under Sections 13100-13115 of the California Probate Code.

The main reason to avoid probate is cost—like any court process it can be expensive and time-consuming. In Sacramento County it currently cost $395 just to file to be the administrator of an estate, and another $395 to file for an order concerning the sale of estate property, and another $395 to file for an accounting, so you can see how the fees can add up pretty quick, not to mention the cost of your own time and transportation to and from court, etc.

Another reason many people object to probate is because like any other court record, probate court records are public records, and many people prefer that the itemized value of their property not be a matter open to the public. You can actually view all the documents filed in Sacramento County Probate Court cases initiated after February 5, 2007, online at the Court’s website.

If you are able to take advantage of the “Small Estate,” distribution procedure, you will need to complete an “Affidavit for the Collection of Personal Property” and present it, along with a certified copy of the death certificate, evidence that the decedent owned the property (e.g., stock certificate, bank passbook, storage receipt), and reasonable proof of your identity (e.g., driver's license) to the institution holding the property. The Sacramento County Public Law Library has a Step-by-Step Guide to this procedure, along with blank and sample completed forms, on our website available to download for free.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian – Small Claims Court and Security Deposits

2010-11-24T19:53:11Z

Q: Until about a month ago, I was renting a room in a house from someone I thought was a reasonable lady. We had an argument, and she gave me 30 days notice to move out, saying that she would mail me my security deposit ten days after I had moved. The problem is, she kept $200 of my security deposit. Can I take her to small claims court for the money?

-Randy

A: Small Claims court is a common venue for security deposit disputes between a landlord and a tenant. It has the advantage of being very quick, with cases typically being heard in only a few months, and of being relatively inexpensive. If the two parties can’t reach a compromise, the tenant’s best remedy might be to sue the landlord for the money withheld, relying on a judge to settle the matter. Here are a few things to keep in mind before filing a claim:

• California Civil Code §1950.5 primarily governs security deposits; be sure to read each section carefully to be aware of the various requirements for both the landlord and the tenant. Before you consider filing a claim, make certain you have complied with the law. For example, Civ. Code §1950.5(a)(3) requires “the cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy.” If you failed to clean any portion of your rented area (to the state it was when you moved in), the landlord has the right to withhold all or a portion of your deposit, depending on the degree of neglect. If this occurs, he or she must provide you with an itemized accounting detailing the deductions.

• Before filing, write a formal demand letter requesting the return of all or a portion of your security deposit. Include details and state why you feel you believe the deductions were inappropriate. If you fail to perform this step and the landlord points this out at the hearing, your case may be dismissed. You can find sample demand letters at your local law library, in self-help books, or online at the California Courts Self-Help Center. Contact your local law library for more information.

• Assess whether your loss is worth the time and cost of filing a claim. The current filing fees for California small claims courts will vary depending on the county and the amount of money in dispute. For example, in Sacramento County the filing fee for claims of $1,500 or less is $30. You can locate county fee schedules on county superior court websites.

• Be prepared to do a little leg-work. While suing in small claims court is far less complicated than suing in superior court, you will still need to prepare by researching the applicable laws and educating yourself on the small claims process before filing a claim. You will also want to collect and present as many pieces of evidence as possible to support your case, such as photos of the premises at move-in and move-out and a copy of the lease or rental agreement. We suggest reading Everybody’s Guide to Small Claims Court in California, a very useful book on the small claims process. Chapter 20 specifically addresses landlord-tenant security deposit disputes and features advice on whom and where to sue and what each party should bring to court. Two other helpful books are California Tenants' Rights and The California Landlord's Law Book: Rights and Responsibilities. These resources are available for review at your local county law library and/or directly from the publisher at www.nolo.com. To locate the nearest county law library visit: http://www.publiclawlibrary.org/find.html

There are several resources available to those looking for information on small claims courts. Every county in California has a Small Claims Advisor that can assist you with your case free of charge. You can find county-specific court information including Small Claims Advisors here: http://www.courtinfo.ca.gov/selfhelp/smallclaims/scbycounty.htm

California’s Department of Consumer Affairs has a useful web page that provides some basic small claims information, including a glossary of terms. For more in-depth information, the California Courts Self-Help Center has a page with links to forms, county-specific fee schedules and court locations, and a list of FAQs.

You can always do some research at the Sacramento County Public Law Library http://www.saclaw.org. The law library has print and electronic resources on the small claims court process in California, and friendly reference law librarians are available to assist you.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - New Spouse's Income & Child Support

2010-11-18T22:11:26Z

Q: My fiancé has a daughter from a previous marriage. When we get married, can her mother ask for more child support based on our new combined income?

Barbara

A: Don’t worry; the court will base the amount of the support order using only your husband’s income. Under California Family Code section 4057.5, the income of either parent’s subsequent spouse shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to the children. An extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income.

Although the new spouses’ incomes cannot be considered, remarriage of the parents can have some effect on the child support payments, because some of the factors considered when making the order may change, such as new children, different tax filing status, etc. A more complete list of the factors considered when determining child support is available at the California Courts website.

The family law Self-Help Center located at the William R. Ridgeway Family Relations Courthouse may be able to help you with your support questions. Every court in California has a family law facilitator, who is a lawyer that will help you with family law problems for free. The facilitators can't represent you in court, but they can help in other ways. The Self-Help Center is located in Room 113 of the William R. Ridgeway Family Relations Courthouse and is open Monday through Thursday from 8:30 a.m. to 4:00 p.m., excluding court holidays.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Cell Phone Tickets

2010-11-10T23:02:21Z

Q: I got pulled over for talking on my phone while driving, and the ticket is $162!!! I thought first-offense tickets were only supposed to be $20. Why is mine so high?

Becky

A: You’re absolutely right – the base fine for a first-offense cell phone ticket is $20. However, like all traffic tickets, fines for cell phone tickets consist of a base fine plus penalty assessments and additional fees. The amounts of these assessments and fees are spelled out in the California Vehicle, Penal, and Government Codes. They do vary somewhat from county to county, so the following amounts may be slightly different for tickets received outside of Sacramento County.

For a cell phone ticket in Sacramento County, on top of the $20 base fee, you will also pay:

$4 Surcharge
$40 State penalty assessment
$10 DMV fee
$1 Night court fee
$8 DNA funds
$4 State court facilities construction fund
$35 Criminal conviction assessment
$40 Court security fee

So in total, a $20 ticket will result in approximately a $162 bill. More information on calculating traffic fines is available from the Sacramento County Superior Court website at http://www.saccourt.ca.gov/traffic/how-fines-are-calculated.aspx.

If you do not wish to contest the citation, you must pay the fine prior to the court date listed on your ticket or courtesy notice. You can do that online at https://www.epay-it.com/sac/. Other options for making payment are described at http://www.saccourt.ca.gov/traffic/paying-fines.aspx.

If you wish to contest the citation, you can find more information on the Sacramento County Superior Court website http://www.saccourt.ca.gov/traffic/traffic.aspx and on the California Courts Self Help website at http://www.courtinfo.ca.gov/selfhelp/traffic/info.htm. You can also look at a book, “Fight Your Ticket and Win in California,” published by Nolo Press, which is available for review at the Law Library.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Red Light Citation

2010-11-04T15:15:13Z

Q: I received a citation in the mail for running a red light. My brother borrowed my truck and he was the driver pictured. What do I do?

Bill

A: Contact the agency that issued the citation. Do not send payment to the court because then the citation will be connected to your driving record. Once contacted the issuing agency will then contact the court with the corrected information. If you fail to contact the agency or do not appear on your assigned date, additional penalties will be added to your case and your driver’s license can be suspended.

Below is the contact information for local agencies:

California Highway Patrol, Red Light Camera Program
903 Enterprise Drive
Sacramento, CA 95825 916-876-6643

With the citation number, license plate number, and the city code SCMTCA, you can view the violation video online - external link.

City of Elk Grove, Red Light Camera Program
8400 Laguna Palms Way
Elk Grove, CA 95758-8045 916-478-8161
With the citation number, license plate number, and the city code ELKGCA, you can view the violation video online - external link.

City of Citrus Heights, Red Light Camera Program
6315 Fountain Square Drive
Citrus Heights, CA 95621 916-727-5884
With the citation number, license plate number, and the city code CSHTCA, you can view the violation video online - external link.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Jury Duty and Malfeasance

2010-10-28T16:40:08Z

Q: I have been contacted for jury duty and would like to know the definition "of convicted of a felony or malfeasance in office." What does this mean?

-Betsy

A: Not everyone can serve on a jury. When you receive a jury summons, you may notice that it warns that you cannot serve if you have been convicted of a felony or malfeasance in office, unless you have had your civil rights restored.

You probably know that a felony is a serious crime, punishable by state prison or even the death penalty. (Cal. Penal Code § 17.) If you aren’t sure whether you have a felony conviction, check your criminal history records at the California Attorney General’s office.

“Malfeasance in office” is more obscure. “Malfeasance” is an old-fashioned word meaning “evil-doing, specifically official misconduct on the part of one in public employment.” (Oxford English Dict.( 2d Ed.).) A more modern term is “official misconduct.” Someone who commits malfeasance is called a “malfeasor”—a word so old that spell-check wants to correct it.

Bribery, embezzlement, extortion, fraud by election or tax officials, making arrests under false pretences, secret meetings of local governmental agencies, violating conflict of interest statutes—any abuse of office may be called malfeasance.

Some of these crimes are misdemeanors, so malfeasors may never be convicted of a felony. We still don’t want them on a jury. Malfeasance displays lack of respect for public duty, and possibly even an inclination to take bribes—an undesirable characteristic in a juror. That’s probably why the California Constitution excludes “persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes” from serving on juries. Cal. Const., Art. VII, § 8; see also Cal. Code of Civil Procedure § 203.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian--How to get an injunction against the DMV

2010-10-21T21:45:01Z

Q. I lent my boyfriend my car when things were going good, then I caught him cheating so I cut him off. I would bust the windows out the car if it wasn’t mine! But he’s telling everyone I gave it to him and he’s going to fix it up, sell it, and make a lot of money. A friend of mine told me to go to the DMV and they could fix it so he couldn’t sell the car out from under me. So I went to the DMV, filled out a form, and thought I was good to go but then the fine print on the bottom of the form says “I understand that I must file a complaint or petition with the Superior Court requesting a preliminary injunction with a temporary restraining order to be served upon the Director of the Department of Motor Vehicles within 30 days.” What does this mean? How do I get an injunction against the DMV?
Svetlana
A. At least once a week, sometimes more, someone clutching a wrinkled piece of paper to their chest approaches the reference desk asking for “the form” to get an injunction against the DMV. Most of the time the situation is the same as yours: an ex-boyfriend or girlfriend has their car and won’t give it back, and they have obtained a 30-day courtesy stop from the DMV so the ex or whoever has their car can’t sell it. The “Courtesy Stop Request” form simply tells you to go to Court and get an injunction. When you go to the Courthouse, though, they refer you to the Sacramento County Public Law Library for help in obtaining the injunction. By then you are understandably frustrated, having spent a total of approximately six hours in line at the DMV, driving to the Courthouse downtown, finding a place, any place, to park, standing in line at the clerk’s window, walking to the Law Library, etc. When the reference librarian tells you there is not a simple form and that it is a complicated procedure most people burst into tears.
The instructions on the “Courtesy Stop Request” form are misleading, to say the least. First of all, there is no single “form” to file with the court to obtain an injunction. It takes many hours to prepare the necessary reams of paper you must file with the court. Second, an injunction is a temporary or permanent remedy in a larger lawsuit. You cannot just sue someone for an injunction in a vacuum; there must be an underlying lawsuit alleging one or more “causes of action” against the person from whom the injunction is sought. A “cause of action” is a set of facts that, if true, would entitle the person suing to be granted a judgment by the court. An injunction, on the other hand, is a remedy, not a cause of action. An injunction is an order to whoever is doing something wrong that they must stop doing that wrong thing. But there has to be a reason that something is wrong. For example, you could get an injunction against your neighbor to stop playing loud music at night. But first you would have to sue your neighbor for nuisance, which is the legal theory that makes it wrong for neighbors to keep each other up all night. You must ask yourself, “What is the legal theory that makes it wrong for the person who has my car to have it?”
That legal theory, or type of action, depends upon the circumstances in which the other person obtained possession of your car. Three common legal theories used to sue someone who has unauthorized possession of your car in order to obtain an injunction against the DMV are conversion, breach of contract, and for an equitable right of possession. In practice, a complaint might combine several different causes of action.
Conversion, according to Nolo’s Plain-English Law Dictionary, is “the civil wrong (tort) of wrongfully using another's personal property as if it were one's own, holding onto another's property that accidentally comes into one's hands, or purposely giving the impression that the assets of another belong to oneself.” It is, more or less, the civil law equivalent to the crime of theft.
Breach of Contract is a legal claim that one party failed to perform as required under a valid agreement (written or oral) with the other party. For example you might say, "The roofer breached our contract by failing to complete the job." Possession is a legal claim very similar to conversion, but asks the court to find that the person suing is entitled to immediate and exclusive possession of the personal property involved, and orders the return of the property, plus the value of its temporary use.
Conversion and possession are most often used in situations like yours, when the vehicle is initially used with permission. You didn’t mention it, but often In these cases the owner of the vehicle has also gone to law enforcement to report the vehicle is stolen, only to receive the answer that "it's a civil matter," because the vehicle was initially obtained with permission.
Breach of Contract is most often used in cases when one person sells the vehicle to another, with the buyer ultimately failing to pay. The outcome of these lawsuits is determined by the exact wording of the agreement between the parties. Oftentimes agreements created by individuals fail to consider the possibility of buyer not paying, and as a result end up providing no remedy other than suing for the money owed.
If you are unlucky enough to find yourself in this situation, going to court provides a number of imperfect solutions to your problem. Depending upon the value of your car, you might consider filing a claim in Small Claims Court. Small Claims Court has the advantage of being very quick, with cases typically being heard in only a few months, and of being relatively inexpensive (the filing fee in Small Claims Court is presently $75 or less, with the filing fee set on a schedule based upon the claimed value of case). Small Claims Court for individuals is limited to cases of $7, 500 or less. The disadvantage of Small Claims Court is that it is limited to issuing money judgments, and generally cannot make judgments directing people to do things, like return your vehicle. Notwithstanding this, oftentimes people will agree to return property in lieu of a money judgment.
If return of the vehicle is the only acceptable option, you will be required to file an unlimited civil case in the Superior Court stating whatever causes of action support your contention that you are entitled to the return of the vehicle, naming both the person who has your vehicle and the California Department of Motor Vehicles as defendants. Although you are not seeking any monetary damages against the DMV, they must be named in the lawsuit because the court cannot issue an injunction preventing them from doing anything unless they are named as defendants. The "first appearance fee" in these cases is currently $355. Upon filing this lawsuit, a case number is assigned by the court. Once a case number is assigned, the next step is to file a motion asking the court to grant a temporary injunction preventing the transfer of the vehicle until the case is over. The fee for filing this motion is presently $40. It is very difficult to complete this entire process within the 30 days a courtesy stop is in effect. Even after the injunction is granted, it is necessary to continue litigating the case because the injunction is only a temporary remedy that remains in effect until the case is complete and the judgment is entered.
Assuming that a temporary injunction has been granted, or alternatively the DMV has agreed not to transfer the vehicle's title pending the end of the case, if you are entitled to immediate possession of the vehicle it is possible to file another motion requesting a Writ of Possession, which is an order directing the Sheriff to collect the property and deliver it to you. An additional $40 fee is charged for this motion. Fortunately, this process is simplified by the use of standardized forms. If a writ of possession is granted, you will be required to post an undertaking, or bond, with the court equal to the other side's potential interest in the vehicle, typically the full market value of the vehicle. This is accomplished by depositing cash with the court or using real property as collateral. This undertaking is to protect the other side in the event that you lose, to guarantee that they will not lose the value of the property that is being taken.
As mentioned above, there is not a standardized form ideally suited to any of these steps. The complaint and motions must be filed on 28-line pleading paper. It would take an attorney who was very experienced in this area at least 5 hours to complete all the necessary paperwork, and at $300 per hour that comes to $1,500! Although we have sample pleadings that you can copy and paste into our free pleading paper formatted for Sacramento County Superior Court, the average time it takes the average person to complete one step in this process is 20 hours. Unfortunately, our Civil Self-Help Center can’t help you with this process; it is too complicated and takes too long; if they helped one person with this type of claim they wouldn’t have time to help the other approximately 400 people they see every month.
So, before you try to obtain an injunction against the DMV yourself, ask yourself the following questions:
• How much is the car worth?
o More than the all filing fees; a bond or undertaking, if applicable; and 40 to 100 hours of your time?
• Do you want the money, or the car?
o If the person who has your car doesn’t have any money, you’ll want the car back. You can’t get blood from a turnip. But getting the actual car back costs more than getting a money judgment.
• What is your relationship with the person who has your car?
o Most of the time the two of you had a relationship, and if you are family, will continue to have a relationship. How will suing that person affect that relationship?
Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Lien Sale for Auto Repairs

2010-10-14T19:57:11Z

Q: I own an auto shop and I finished about $5500.00 in repairs on a car and now the owner doesn’t want to pay me. The car has been sitting in my shop for months now, how can I get rid of the car and get the money that is owed to me?

Randy

A: This happens quite often especially when the cost of repairs far exceed the value of the vehicle. You will be happy to hear that if a person has repaired, furnished supplies/materials for, or towed or stored a vehicle and has not been paid for the services rendered, that person has a lien against the vehicle. The lien arises or becomes effective at the time the registered owner is presented with a written statement of charges for completed work or services. The legal owner must be notified before the service is performed if the amount of any repairs or service will exceed $1,500. The lien may be satisfied by getting a court judgment or by selling the vehicle through a lien sale process outlined in the California Civil Code §3072. In order to conduct a lien sale, the person/lien holder must have possession of the vehicle. The California Department of Motor Vehicles website provides a detailed summary of the procedures involved. The following are some main points to consider.

Determine the current market value of the vehicle
Before conducting a lien sale, you must first determine the value of the vehicle, since which procedure you use will depend on the value of the vehicle. According to the California Civil Code §3072, if the vehicle’s value is $4,000 or less, you will need to notify the registered and legal owners of record of the lien sale and follow the process outlined below, but if the vehicle’s value is greater than $4,000, see the DMV brochure HTVR 8, “How To: Conduct a Lien Sale for a Vehicle Stored at a Self-Service Storage Facility or Valued Over $4,000".

Locate the vehicle’s owner
There are several steps that you will need to go through before conducting the lien sale. The first step will be to locate the vehicle’s owner. Within 15 days of the date the lien sale arises, complete a Registration Information Request for Lien Sale (INF 1126) form and submit it to DMV. The DMV will provide a vehicle history record with the registered and legal owner(s) of record and known interested parties. Owners identified from incomplete transfers are included as interested parties.

Starting the sale process
Once you are given the go ahead for the lien sale, at least 31 days, but no more than 41 days before the sale date, not counting the day the notice is mailed, send a Notice of Pending Lien Sale for Vehicle Valued $4,000 or Less (REG 668) by certified mail to the registered owners, legal owners, and any known interested parties and enclose a return envelope pre-addressed to DMV. If DMV has no record of this vehicle, you need to send only a notice to each interested party known to you and one to the DMV.

Posting the sale notice
At least 10 days prior to, and including the sale date, the REG 668 form must be posted in a conspicuous place at your business office. If the sale occurs at a place other than your business office, a REG 668 must be posted at the sale site. When posting the REG 668, fold the document so the registered owner, legal owner, and interested party addresses are not visible. If there is an opposition to the lien sale, the sale may be halted by the DMV unless you are able to provide additional documents. For more information on responding to an opposition, visit the DMV website. After receiving the documents, DMV will send a letter allowing the sale to continue.

Day of lien sale
On the sale date, the vehicle must be available for inspection at least one hour prior to the sale. A lien sale is a public auction. Anyone may appear and bid. Sealed bids are not allowed.

If you are able to successfully sell the car, complete the Certification of Lien Sale for Vehicle Valued $4,000 or Less (REG 168A) and give it to the buyer along with the DMV vehicle record history information and any postal receipts you have. If excess money is received from the sale of the vehicle, within five days of the sale date, make a copy of the REG 168A form and mail it along with the excess money to the Lien Sales Unit at the address shown on the REG 168A. Be sure to remove and destroy the license plates on the vehicle. Also within five days, submit Notice of Transfer and Release of Liability (NRL) (REG 138) to DMV. You may also file a NRL by using DMV’s new, online, NRL Filing Service.

On the other hand, if no one places a qualifying bid, complete the Certification of Lien Sale for Vehicle Valued $4,000 or Less (REG 168A) showing you as both the buyer and seller. Be sure to remove and destroy the license plates on the vehicle. Within five days, submit Notice of Transfer and Release of Liability (NRL) (REG 138) to DMV. You may also file a NRL by using DMV’s new, online, NRL Filing Service. If you end up selling the vehicle later, you are required to give the new buyer a bill of sale with the lien sale documents. For more information on registering the vehicle after the lien sale, visit the DMV website.

Dispute Resolution
Disputes between a lien holder and an interested party, including the registered owner or legal owner on the vehicle history records, are a civil matter that can only be decided in court and do not involve DMV. The DMV can assist a lien holder by providing the names and addresses of the registered owner, legal owner, and interested parties from their vehicle history records.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - California Smoke Detector Laws

2010-10-07T21:44:03Z

Q: My husband and I will be retiring soon and we’ve decided to sell our house. We’ve heard that we may need to replace our smoke alarms before selling. Does California have a law about this?

-Anne

A: Most people are aware of the obvious benefits of installing and maintaining smoke detectors throughout their homes, but many would be surprised to know that it’s mandatory. California law requires every single-family dwelling and factory-built housing to have operable smoke detectors in designated areas. Furthermore, the smoke detectors must be approved and listed by the State Fire Marshal and installed according to state regulations. (Cal. Health & Safety Code § 13113.8.) Other types of residences, such as condos, apartment buildings, mobile homes, and hotels may be subject to different requirements as set forth in Section 13113.7 of the Health and Safety Code.

There are numerous laws and regulations concerning the installation, placement, and type of smoke detection devices, and the need to replace your current detectors before selling your home will depend on several factors. To help you determine whether you may need new or additional smoke detectors in your house, consider the following:

1) New Construction
If the house has undergone any major additions, renovations, or repairs since August 14, 1992 that exceeds $1,000 in cost and for which a permit is required, a smoke detector must be installed in each bedroom in addition to being centrally located in the corridor or area outside the bedroom. In newly constructed areas, the smoke detector must be hardwired with a battery backup. (California Building Code § 907.2.10.5.2.)

2) Wiring or Batteries
For homes built before 1992, smoke detectors may be battery operated. Newer homes or homes that have undergone major construction require hardwired smoke detectors with a battery backup, as stated in the California Building Code.

3) Sleeping Areas
In homes built before 1992, smoke detectors must be centrally located outside each sleeping area. Depending on the floor plan, one or several smoke detectors may be needed. For instance, a two-story house with bedrooms upstairs and downstairs will need two smoke detectors, one centrally located outside each area. On the other hand, a two-story house with bedrooms on the second floor will need only one smoke detector if the bedrooms are all in the same area. If the home was built after 1992 or has undergone major repairs or construction, the California Building Code requires the installation of smoke detectors in each bedroom, and in each corridor or hallway near each sleeping area.

4) Local Ordinances
Depending on the region, factors like climate and population can vary dramatically in California. Local municipalities may impose further requirements regarding smoke detectors. It is important to check with the local department of building and safety to determine the requirements in your region.

When selling your home, you will also need to provide documentation to the buyer of the property’s compliance with California’s laws and regulations concerning smoke detectors. For more information on this process, consult Health and Safety Code § 13113.8 or this guide published by the California Association of Realtors.

Because of the many variables involved in California’s smoke detector laws, regulations, and local ordinances, you’ll want to conduct your own research before taking action. You can visit the Law Library for print and online access to the state code and regulations; they are also available online at www.leginfo.ca.gov/calaw and www.calregs.com. To research local rules or ordinances, try contacting the local department of building and safety. In Sacramento, the Community Development Department is the best source of information on local requirements and inspections.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Divorce Costs

2010-09-30T22:25:48Z

Q: I've heard that getting a divorce is more expensive than getting married. Is that true? In total, how much does a divorce really cost?
- Dave

A: Well, I guess that depends on how extravagant your wedding was. It’s usually cheaper to stay married than to get a divorce, though. For most couples, divorce is an expensive process. It’s impossible to put an exact price on a divorce, because it is different in each situation. An extended contested divorce typically ends up costing more than one that is settled easily between the parties. In general, the more issues to be dealt with during the divorce, the more expensive it may be. Additionally, the more assets you have, the more you have to lose. Here’s a brief overview of some of the types of costs you may to incur during a divorce.

Hiring an attorney
If you decide to hire an attorney to handle your divorce, expect to pay an initial retainer of at least $750 - $5000. Think of the retainer as a down payment – as the attorney works on your case, he will deduct his hourly rates from that amount. For divorce cases, hourly rates are usually around $175-$350. In most cases, you will run through your retainer before the case is over, and will need to pay additional fees to your attorney. According to “How to Do Your Own Divorce in California in 2010,” the average spent on legal fees for a divorce is well over $18,000 per spouse. For couples with more assets, or more issues to sort out during the divorce, attorney’s fees can run into tens or hundreds of thousands of dollars per spouse! If your divorce will be complex or highly contested, you will need to factor in additional litigation-related expenses, such as custody evaluators, financial expert witnesses, and mediators.

Don’t base your decision about hiring an attorney solely on the cost, though. There are benefits and drawbacks to hiring an attorney. Nolo Press has a very good article to help you decide whether hiring an attorney is right for you.

If you decide not to hire an attorney, the Law Library has a lot of materials that may help you handle your own case. A guide listing our divorce-related resources, as well as referrals to other sources of assistance is available on the Law Library’s website. Keep in mind that even if you decide not to hire an attorney, you may still significant costs during a divorce.

Filing fees
To file the initial papers to start a divorce, you will pay a filing fee of $355. This is not a penalty for the party initiating the divorce - the other party will also pay $355 to file their response. Throughout the case, you may have to file additional paperwork. Some of these filings may be free, others may have filing fees of up to $40. If you have very low income, or are receiving public assistance, you may qualify for a fee waiver. More information about fee waivers is available from the Law Library’s website.

Division of property
During a divorce in California, spouses will have to divide the community estate, often called “community property.” Community property is any property or debt that is acquired during the marriage, unless it is a gift or inheritance, or was owned prior to marriage. Sometimes it is difficult to determine what is considered community property and what is the separate property of each spouse. This article from Nolo Press provides a good explanation of the differences.

In addition to assets you’d commonly think of as community property, such as income, real estate, vehicles, and household goods, community property can also include accumulated vacation pay, pension funds, employee stock options, tax refunds, and intellectual property created during the marriage. Each spouse is entitled to an equal share of community property during a divorce. This means that when you divorce, you may lose up to half of everything you own. Depending on the size of the community estate, this can be very expensive!

Support
If you have children together, child support may become an ongoing divorce-related cost. California has a mandatory statewide guideline for child support based on the actual income of each parent and the amount of time each parent has physical custody of the children. To help parents estimate the amount of child support the judge will order in their case, the State of California has developed an online child support calculator, which is available at https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator.

You also may be required to provide medical insurance for the children, and contribute toward childcare expenses, unreimbursed or uninsured health care expenses, educational or special needs of a child, or travel expenses for visitation purposes.

In addition to child support, the court may also order spousal support, commonly called “alimony.” Spousal support is not mandatory in California, so there is no statewide guideline for spousal support like there is for child support. Instead, the court is required to consider a list of factors in making a spousal support determination. A good explanation of these factors is available online at http://courtinfo.ca.gov/selfhelp/family/support/documents/spousalsup.pdf. After evaluating the parties’ circumstances, it is entirely up to the court whether to order spousal support, and to determine the amount and duration of a spousal support order.

The cost of your divorce is very difficult to estimate, because there are so many different factors involved. In addition to those I’ve already mentioned, you may incur other costs, such as moving expenses, the cost of maintaining two separate households, even tax consequences related to support and property division.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Proof of Auto Insurance

2010-09-23T17:44:38Z

Q: I got pulled over and thought I had a valid insurance card at the time. It turns out my policy had actually been canceled. What can happen and what are the laws regarding driving without insurance?

Betty

A: In California, you must have car insurance that covers you when you're driving any car. If a police officer stops you, you must show proof of insurance. Failing to show proof of financial responsibility, meaning insurance coverage, is a violation of California Vehicle Code Section 16029. http://www.dmv.ca.gov/pubs/vctop/d07/vc16029.htm. Violating this code could result in fines up to $500 plus penalties, impoundment of the vehicle and suspension of the driver's license. If the vehicle is impounded the owner will have to pay for all storage and tow charges as well.

If you have insurance but don't have proof to show the officer, you'll be charged with an infraction for driving without proof of insurance and must provide proof of your insurance to the court and pay a fee.

If you don't have insurance, you must buy it. Then, provide your proof of the insurance to the court and pay a fine. The consequences can be far more serious if you are involved in an accident and do not have insurance. You may have to comply with the financial responsibility laws (SR22, SR22s, SR16), including having to pay for any injuries or damages from the accident out of your own pocket.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Criminal Background Checks

2010-09-16T20:31:04Z

Q: I met a guy who I really like, but a friend told me she heard he had a “record.” How can I do a background check to find out for sure?

Jen

A: Unfortunately, running a criminal background check is not as simple as one might think. Criminal convictions are generally public records, and anyone can go to a court clerk's office and search the files for records of conviction for a certain person. However, there’s no publicly available single database you can search for California. If you wanted to find out if someone had a criminal record, theoretically you would have to visit the courts of every county in your state -- and in the country, if you wanted to be really thorough.

The California and federal Justice Departments do have more comprehensive records. However, individuals cannot search those records. Only other state agencies and some employers have access to these databases.

If you were looking for your own California criminal records, you could submit a request to the California Attorney General’s office, along with your fingerprints. For more information about that, visit "Criminal Records - Request Your Own" on the Attorney General's website.

Here's an in-depth article on criminal records searching from www.llrx.com, a website run by and for law librarians: "Navigating the Maze of Criminal Records Retrieval." You can also visit the Law Library for books on using public records to check into people’s background, including “The Complete Idiot’s Guide to Private Investigating,” which has a whole chapter on background checks.

Best of luck!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Foreclosure Defense

2010-09-09T22:44:12Z

Q: I just got a Notice of Default from my mortgage company. My friend told me I could stop the foreclosure process by demanding that the bank “produce the note.” What does this mean and will it really work?

Thank you, Louise

A: The “produce the note” defense to foreclosure is touted by many on the Internet —people ask us for the forms needed to do that almost every day. The theory is that because loans are frequently transferred it may be difficult, if not impossible, for your mortgage company to trace the ultimate ownership of your specific loan. To foreclose, the lender must actually be current holder of the note, and a homeowner can delay foreclosure by filing a lawsuit demanding this proof. Under California law, however, “It is well-established that non-judicial foreclosures can be commenced without producing the original promissory note.” Chilton v. Federal Nat. Mortgage Ass'n, 2009 WL 5197869 (E.D.Cal.).

Unfortunately for many homeowners these days, foreclosures are almost impossible to stop. An action to set aside the trustee’s sale requires both an irregularity in the procedure outlined in California Civil Code §§ 2920-2924 and a grossly inadequate sale price. Moeller v. Lien, 25 Cal.App.4th 822 (1994). If faced with foreclosure, the best thing for you to do is talk to an attorney, your mortgage company, or a nonprofit foreclosure prevention organization. Avoid foreclosure rescue and loan modification scams. If it sounds too good to be true, it is!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - How to Find a Lawyer

2010-09-01T16:30:15Z

Q: How can I find a good lawyer? I am willing to pay. Can you recommend someone?

Thank you, Katherine

A: Although I can't recommend a lawyer, I can provide a strategy to locating one.

Locating a lawyer who is willing to handle your case can be challenging. There are a number of avenues you can pursue to locate the right attorney.

Personal Referrals
Talk to your family or friends for a referral. Ask them who their lawyers were and what they think of them.

Online Directories
Nolo's Lawyer Directory http://lawyers.nolo.com/
The publishers of Nolo's Lawyer Directory verify that all listed attorneys are in good standing with the state bar, and that they have not recently been disciplined. All attorneys provide detailed information about their educational history, legal specialties, fees, and personal philosophy.

State Bar of California http://www.calbar.ca.gov/
Posts member record information, including information regarding attorney discipline. Users can search for a "certified specialist" in these specific practice areas: appellate, criminal law, estate planning, trust and probate, family law, immigration and nationality, personal and small business bankruptcy, taxation and worker's compensation. Click on "Public Services" then on "finding an attorney for legal advice" to read the State Bar's guide on how to find an attorney.

Martindale-Hubbell Directory http://www.martindalehubbell.com
Best known for the national directory of attorneys, this site contains a searchable database by attorney's name, location and/or area(s) of practice.

Lawyer Referral Service
Sacramento County Bar Association Attorney Referral Service http://www.sacbarlawyer.org
For $50 you can receive a 30 minute consultation. The Lawyer Referral Service is a nonprofit service sponsored by the Sacramento County Bar Association. You can request a referral either by telephone or email.

Advertisements
You also could check the Yellow Pages, newspaper advertisements or the Internet in your search for an attorney. Not all lawyers choose to advertise in the Yellow Pages. Lawyers may use ads to list their fields of law.

Print Resources
You can always do some research at the Sacramento County Public Law Library http://www.saclaw.org. There are numerous print directories and friendly reference law librarians available assist you.

Ask the County Law Librarian

2010-08-26T20:08:40Z

Welcome to the Sacramento County Public Law Library’s new column, “Ask the County Law Librarian.”

The Sacramento County Public Law Library has been providing FREE public access to legal information since 1891; however, many residents don’t even know about us. We hope this column will remedy that, educating and informing readers about the legal system and legal services and resources available for free or for a very low cost.

How it works: You come up with a legal question, and I respond, providing references to books, websites, or local agencies that can help you answer your legal question. I cannot provide legal advice – that is, I cannot tell you what you should do, but I can provide legal information, so that you will know what your options are.

Another thing I cannot do is interpret the law. I can, however, direct you to the text of the law itself, and to other sources – in the Law Library and on the Internet – that have analyzed and interpreted the law.

So send your questions to sacpress@saclaw.org! I will feature one question per week each Thursday here at The Sacramento Press. Questions not featured will be answered privately within two weeks. I look forward hearing from you!

Coral Henning, Director

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Civil Self Help Center Opens

2009-08-13T18:22:12Z

The Sacramento County Public Law Library (SCPLL) is the new home to the Civil Self Help Center which was formerly located in the Sacramento Superior Court. The Civil Self Help Center provides self represented litigant’s FREE legal advice and information on a variety of civil issues including but not limited to responding to a breach of contract complaint, name change, discovery requests, and much more.

The center came about through a partnership with SCPLL, the Sacramento Superior Court and the Voluntary Legal Services Program of the Sacramento County Bar Association. SCPLL contracts with VLSP to staff the CSHC. VLSP staff consists of a staff attorney and two paralegals. SCPLL staff work with VLSP each morning to “triage” the incoming customers. Staff assist in directing customers to CSHC workshops or in making appointments for one-on-one assistance.

The Sacramento Superior Court due to the state’s economic crisis could no longer fund this important program out of their general fund. SCPLL spoke with the court’s executive office about transitioning the program to SCPLL and a partnership developed whereby the court provided the furnishings and initial office equipment for SCPLL to get the center off the ground. In addition the Superior Court also is providing some grant monies to defray some of the staffing costs. This worked out to be a win-win for all concerned: the program continues to provide much needed services to the public, SCPLL expands services and increases visibility and value in the community and the Superior Court continues to support improved access to justice!

Visit http://www.saclaw.org/pages/civil-self-help-center.aspx for more information about Civil Self Help Center!