Originally Printed: May 18, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My daughter ran away with her drug-dealing boyfriend about a month ago. She left her 16-month-old baby with my husband and I and we have no idea of her whereabouts. It is incredible that we are left with total responsibility for her little boy. However, we want to make sure that she does not come back to pick up this child, only to have him around drugs and bunch of drug addicts. What should we do?
A. This theme comes back on a regular basis. You need to file a Petition for Guardianship with the County court in order to become guardians of this child. An investigation will be conducted by a court-appointed probate investigator to ascertain who would be first choice to become substitute parent(s) to the child. The Court often appoints grandparents as guardians of children left behind by drug-addicted parents. Once you are found to be fit as guardians, the Court will not allow a drug-addicted mother to again be responsible for her child until she cleans up her act. A guardianship is often temporary, until at least one parent of the child undergoes drug rehabilitation and can safely take responsibility for his/her child, but it also sometimes becomes a permanent arrangement. Drugs have become the scourge of today’s society and have affected hundreds of thousands of children across the world. They are the true victims. You are very brave to be willing to take care of this little boy and hopefully, your daughter will be thankful for what you have done for her son.
Q. I have a satellite dish to connect to the Internet, which promised immediate access, but is actually slower than dial-up. I constantly have to call in because have problems with connectivity. They charge an arm and a lef for the service, with which I am totally dissatisfied. I had to pay $700 for the dish. I want money back. Can I?
A. It is doubtful but it depends if you had a warranty and how long ago you had it installed on your property. Your story sounds so familiar. In fact, I went back to a dial-up connection because I was tired of paying $65 a month for this so-called “really fast connection”. Satellite dish is highly affected by the weather unfortunately, and of course customers are never told about these problems ahead of time. You best bet is to give your satellite company notice that you want to stop their “bad” service and find another way to connect to the Internet. Good luck!
Monday, January 5, 2009
Legal Eaze #21 Pregnant/ Collections Agency
Originally Printed: May 4, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I am 16 years old and pregnant. My boyfriend is 18 years old. My parents like him and do not want to press charges against him. My parents and I are worried that the hospital staff at the hospital I go to when it is time to give birth will call the police on my boyfriend. Can the hospital staff do that? Or it is up to my parents?
A. My understanding of criminal law is that no one goes forward with a criminal filing unless there is a complaining victim. Mandated reporting is for child abuse only, not for impregnation of a minor, even if in violation of statutory rape laws. Please note that I am a “civil” general practitioner and only handle minor criminal matters. You would be best served by asking an attorney who handles criminal matters of all kinds.
Q. There is a man from a collection agency who keeps calling me with regards to an old debt dating back over 10 years ago. I have told him to leave me alone but he keeps bothering me at home. Somehow, he found out my boyfriend’s telephone number and he calls me there as well. It is legal for this collection agency to keep calling me like this?
A. I believe the Statute of Limitations on the debt may have expired. This collection agency can no longer collect on the debt. If you had a written contract with regards to this debt, the Statute of Limitations expired four years after you entered the contract, or four years after you made the last payment on the debt, whichever comes later. If you did not have a written contract, then two years is the applicable Statute of Limitations period. The collection agency may be liable for unfair debt collection practices and it would behoove you to take down the name, address and telephone number of this collection agency so that you can obtain court redress at a later date. It would be difficult for you to sue a collection agency if you do not know its name and contact information.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I am 16 years old and pregnant. My boyfriend is 18 years old. My parents like him and do not want to press charges against him. My parents and I are worried that the hospital staff at the hospital I go to when it is time to give birth will call the police on my boyfriend. Can the hospital staff do that? Or it is up to my parents?
A. My understanding of criminal law is that no one goes forward with a criminal filing unless there is a complaining victim. Mandated reporting is for child abuse only, not for impregnation of a minor, even if in violation of statutory rape laws. Please note that I am a “civil” general practitioner and only handle minor criminal matters. You would be best served by asking an attorney who handles criminal matters of all kinds.
Q. There is a man from a collection agency who keeps calling me with regards to an old debt dating back over 10 years ago. I have told him to leave me alone but he keeps bothering me at home. Somehow, he found out my boyfriend’s telephone number and he calls me there as well. It is legal for this collection agency to keep calling me like this?
A. I believe the Statute of Limitations on the debt may have expired. This collection agency can no longer collect on the debt. If you had a written contract with regards to this debt, the Statute of Limitations expired four years after you entered the contract, or four years after you made the last payment on the debt, whichever comes later. If you did not have a written contract, then two years is the applicable Statute of Limitations period. The collection agency may be liable for unfair debt collection practices and it would behoove you to take down the name, address and telephone number of this collection agency so that you can obtain court redress at a later date. It would be difficult for you to sue a collection agency if you do not know its name and contact information.
Legal Eaze #20 Mobile Home/ House Renting
Originally Printed: April 6, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Last year, I had a brand new mobile home installed on my 2.5 acre parcel of land. Unfortunately, some of the piers installed under the house have cracked and are crumbling. I am afraid the others will do the same and the house will collapse. I believe the constant rain of the past two months may have been a contributing factor to this phenomena. What can I do?
A. You are short on details as to any warranties given to you by the manufacturer or the installer of the mobile home. Installation of a mobile home should come with a warranty of some kind, especially with respect to materials used and their compatibility with their end use. You need to look to the relationship between the manufacturer of your mobile home and the company that installed it on your land. Are they one and the same? How much experience did the installer have installing mobile homes, and with this particular type of mobile home? Is the land the mobile home installed on stable, or has the rain undermined or caused the soil to collapse under the house?
Q. I have been renting a house for the last 15 years. It is now time to repaint and to have the carpeting changed, as the existing carpet is torn and ragged and the paint is peeling in several areas. I have asked the owner of the house to do so but he refuses to spend any money. My rent is $1,300 a month and should not be ashamed of the conditions in which I am living. What should I do?
A. If no painting has been done in 15 years and the condition of the carpet is such that it presents a danger to you, the owner owes you new carpeting and a new painting job. If after you have given him a 30-day notice, he still refuses to do anything, you can proceed with doing the work necessary and deduct it from the rent. If the work costs more than $1,300, then do it over a longer period of time so as to get all of your money back from the rent. No one should be required to live with peeling paint and torn carpeting. Rent of $1,300 a month is a substantial sum and you are entitled to habitable quarters for that kind of money.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Last year, I had a brand new mobile home installed on my 2.5 acre parcel of land. Unfortunately, some of the piers installed under the house have cracked and are crumbling. I am afraid the others will do the same and the house will collapse. I believe the constant rain of the past two months may have been a contributing factor to this phenomena. What can I do?
A. You are short on details as to any warranties given to you by the manufacturer or the installer of the mobile home. Installation of a mobile home should come with a warranty of some kind, especially with respect to materials used and their compatibility with their end use. You need to look to the relationship between the manufacturer of your mobile home and the company that installed it on your land. Are they one and the same? How much experience did the installer have installing mobile homes, and with this particular type of mobile home? Is the land the mobile home installed on stable, or has the rain undermined or caused the soil to collapse under the house?
Q. I have been renting a house for the last 15 years. It is now time to repaint and to have the carpeting changed, as the existing carpet is torn and ragged and the paint is peeling in several areas. I have asked the owner of the house to do so but he refuses to spend any money. My rent is $1,300 a month and should not be ashamed of the conditions in which I am living. What should I do?
A. If no painting has been done in 15 years and the condition of the carpet is such that it presents a danger to you, the owner owes you new carpeting and a new painting job. If after you have given him a 30-day notice, he still refuses to do anything, you can proceed with doing the work necessary and deduct it from the rent. If the work costs more than $1,300, then do it over a longer period of time so as to get all of your money back from the rent. No one should be required to live with peeling paint and torn carpeting. Rent of $1,300 a month is a substantial sum and you are entitled to habitable quarters for that kind of money.
Legal Eaze #19 Child Support/ Home Purchase
Originally Printed: April 20, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My ex-husband has owed $754 of ordered child support since February 1998. He also owes for two years of ordered day care charges totaling $540. He refuses to sign an interspousal grand deed on a piece of property awarded to me in our property settlement in 1997. What is my best course of action?
A. With regards to the back child support and the day care charges, you need to go into the same court that granted your divorce on an Order to Show Cause (OSC) and get the court to order arrearages to be paid through an assignment of your ex-husband’s wages. As for his refusal to sign the interspousal grand deed, you can double up on the same OSC and obtain a court order to the effect that the clerk of the court should sign your interspousal grant deed in order to get the property in your name only. Once you obtain your court order, you must find out who is in charge of signing your deed and how much it costs. You did not indicate where the property was located and what court granted your divorce. Every county has a different person in charge of signing deeds when the spouse who must sign refuses to do so, is deceased or cannot be found. However, the procedure is the same in every county. This is a fairly technical motion, so I advise you to contact an attorney to handle it for you.
Q. My husband and I made an offer to purchase a home about two weeks ago. We have not heard a word from the seller since. What’s the hold up and what can we do?
A. I simply do not have enough information to give you advice. Was your offer made to a real estate agent representing the seller? If so, contact the agent. Time is of essence in this hot real estate market and once an offer has been made, a response must come forth with a “yes” or “no” or a counteroffer. If you made your offer directly to the seller, then contact the seller. I presume no escrow has been opened and no deposit has been paid. It is possible that another offer was made at the same time as yours and the other offer was accepted. Nevertheless, you should be informed one way or another. You should not sit on an offer for two weeks, and this length of time tells me that either the house has already been sold or the seller is not very serious or some other major reason like an illness has gotten in the way. Patience is not necessarily a virtue here.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My ex-husband has owed $754 of ordered child support since February 1998. He also owes for two years of ordered day care charges totaling $540. He refuses to sign an interspousal grand deed on a piece of property awarded to me in our property settlement in 1997. What is my best course of action?
A. With regards to the back child support and the day care charges, you need to go into the same court that granted your divorce on an Order to Show Cause (OSC) and get the court to order arrearages to be paid through an assignment of your ex-husband’s wages. As for his refusal to sign the interspousal grand deed, you can double up on the same OSC and obtain a court order to the effect that the clerk of the court should sign your interspousal grant deed in order to get the property in your name only. Once you obtain your court order, you must find out who is in charge of signing your deed and how much it costs. You did not indicate where the property was located and what court granted your divorce. Every county has a different person in charge of signing deeds when the spouse who must sign refuses to do so, is deceased or cannot be found. However, the procedure is the same in every county. This is a fairly technical motion, so I advise you to contact an attorney to handle it for you.
Q. My husband and I made an offer to purchase a home about two weeks ago. We have not heard a word from the seller since. What’s the hold up and what can we do?
A. I simply do not have enough information to give you advice. Was your offer made to a real estate agent representing the seller? If so, contact the agent. Time is of essence in this hot real estate market and once an offer has been made, a response must come forth with a “yes” or “no” or a counteroffer. If you made your offer directly to the seller, then contact the seller. I presume no escrow has been opened and no deposit has been paid. It is possible that another offer was made at the same time as yours and the other offer was accepted. Nevertheless, you should be informed one way or another. You should not sit on an offer for two weeks, and this length of time tells me that either the house has already been sold or the seller is not very serious or some other major reason like an illness has gotten in the way. Patience is not necessarily a virtue here.
Legal Eaze #18 Dust/ Credit Card Theft
Originally Printed: March 23, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. There is a lot of new activity on the land next to our house. The lot is being prepared for new building and a tractor has been grading it. Unfortunately, a tremendous amount of dust has been drifting towards our house, and last week when it was hot enough to have our windows open, my wife complained that she constantly had to dust our furniture and our baby has started to cough because of the amount of dust we are getting in the house. Our son’s bedroom is located nearest the grading. We fear that our son is getting very ill due to this dust. What can we do?
A. There are laws requiring that dust be abated by watering the earth being moved. The contractor who is doing this work is doing so in violation of these laws. If you are located within the boundaries of the city of Tehachapi, you need to call the Department of Code Enforcement at City Hall. If you are located in Kern County, you would have to call the equivalent department in Kern County. I would go next door and warn the person driving the tractor to stop doing so unless the soil is wetted down first. If you son is becoming ill as a result of dust rising from a building project, first take him to a doctor, switch him to another room where he would not be exposed to the dust until the contractor next door becomes more responsible to your plight. If your child’s health has been affected by the contractor’s violation of laws, you can sue him for your son’s health problems. Dust can severely affect the health of those who work or live in close proximity of new building projects and dust abatement is a must when such projects are being completed.
Q. I had my wallet stolen during the holidays last year and I am afraid that I have become the victim of identity theft. All my important documents were in the wallet and now I am getting bills from credit cards I reported stolen three months ago as well as from stores I never shopped at, Internet Web sites, etc. What should I do?
A. I hope you reported the theft to the police. That is the first thing you need to do. Then, you need to write an explicit letter to all four (there is a new one now) credit reporting agencies, giving details of the items that where stolen, when, where; and write to each one of the creditors explaining what happened. You also need to contact the Federal Trade Commission, which has a Web site where you can report the theft.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. There is a lot of new activity on the land next to our house. The lot is being prepared for new building and a tractor has been grading it. Unfortunately, a tremendous amount of dust has been drifting towards our house, and last week when it was hot enough to have our windows open, my wife complained that she constantly had to dust our furniture and our baby has started to cough because of the amount of dust we are getting in the house. Our son’s bedroom is located nearest the grading. We fear that our son is getting very ill due to this dust. What can we do?
A. There are laws requiring that dust be abated by watering the earth being moved. The contractor who is doing this work is doing so in violation of these laws. If you are located within the boundaries of the city of Tehachapi, you need to call the Department of Code Enforcement at City Hall. If you are located in Kern County, you would have to call the equivalent department in Kern County. I would go next door and warn the person driving the tractor to stop doing so unless the soil is wetted down first. If you son is becoming ill as a result of dust rising from a building project, first take him to a doctor, switch him to another room where he would not be exposed to the dust until the contractor next door becomes more responsible to your plight. If your child’s health has been affected by the contractor’s violation of laws, you can sue him for your son’s health problems. Dust can severely affect the health of those who work or live in close proximity of new building projects and dust abatement is a must when such projects are being completed.
Q. I had my wallet stolen during the holidays last year and I am afraid that I have become the victim of identity theft. All my important documents were in the wallet and now I am getting bills from credit cards I reported stolen three months ago as well as from stores I never shopped at, Internet Web sites, etc. What should I do?
A. I hope you reported the theft to the police. That is the first thing you need to do. Then, you need to write an explicit letter to all four (there is a new one now) credit reporting agencies, giving details of the items that where stolen, when, where; and write to each one of the creditors explaining what happened. You also need to contact the Federal Trade Commission, which has a Web site where you can report the theft.
Sunday, January 4, 2009
Legal Eaze #17 Water Runoff/Animal Regulation
Originally Printed: March 9, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Our house sits in the middle of a small valley formation which has a caused us substantial problems with all the rain we’ve had. The runoff comes right to our back door. I dug a canal leading from the top of our backyard all the way to one side of my property, on the line between my neighbor’s property and ours. Since our entire property is on an incline going down toward the road, I figured the water will just go straight down to the road and keep going down the hill. My neighbor informed me that the water runoff is now coming straight at his house and he is very angry. What do we do?
A. By digging a canal to let the water runoff go to the side of your property instead of right at your house, you have created a monster. First of all, your house was obviously built in the wrong place. Second, you cannot divert your problem to your neighbor. Although I am not a builder, you should continue digging the canal all the way to the road. A soon as the weather permits, you should install “French gulches” going around both sides of your house all the way to the road. If you have caused damage to your neighbor’s property, you are liable for such damages. If you bought this house from someone else, they should have told you that you would have a big problem during the rainy season. However, to be frank, this problem should have been obvious the minute you bought this house or had it built.
Q. As I was walking in my neighborhood with my two little dogs on a leash, a large dog came out of a front yard and attacked my dogs. While I tried to protect my animals, the black bit me on the leg. One of my dogs had a huge gash on its hip and my other dog managed to get loose and ran away. He came home after spending 24 hours in the rain and developed a bad cough. I went by the house where the dog lives, but there’s never anyone there. What can I do?
A. You need to call the Department of Animal Regulation and make a complaint. They will investigate. However, in order to get reimbursed for your bit and the veterinary care of your animals, you need to find out who owns the house and who owns the dob. That person is liable for your damages. The law is very clear in that dogs must be restrained and if someone is injured by a loose dog, its owner is strictly liable.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Our house sits in the middle of a small valley formation which has a caused us substantial problems with all the rain we’ve had. The runoff comes right to our back door. I dug a canal leading from the top of our backyard all the way to one side of my property, on the line between my neighbor’s property and ours. Since our entire property is on an incline going down toward the road, I figured the water will just go straight down to the road and keep going down the hill. My neighbor informed me that the water runoff is now coming straight at his house and he is very angry. What do we do?
A. By digging a canal to let the water runoff go to the side of your property instead of right at your house, you have created a monster. First of all, your house was obviously built in the wrong place. Second, you cannot divert your problem to your neighbor. Although I am not a builder, you should continue digging the canal all the way to the road. A soon as the weather permits, you should install “French gulches” going around both sides of your house all the way to the road. If you have caused damage to your neighbor’s property, you are liable for such damages. If you bought this house from someone else, they should have told you that you would have a big problem during the rainy season. However, to be frank, this problem should have been obvious the minute you bought this house or had it built.
Q. As I was walking in my neighborhood with my two little dogs on a leash, a large dog came out of a front yard and attacked my dogs. While I tried to protect my animals, the black bit me on the leg. One of my dogs had a huge gash on its hip and my other dog managed to get loose and ran away. He came home after spending 24 hours in the rain and developed a bad cough. I went by the house where the dog lives, but there’s never anyone there. What can I do?
A. You need to call the Department of Animal Regulation and make a complaint. They will investigate. However, in order to get reimbursed for your bit and the veterinary care of your animals, you need to find out who owns the house and who owns the dob. That person is liable for your damages. The law is very clear in that dogs must be restrained and if someone is injured by a loose dog, its owner is strictly liable.
Legal Eaze #16 Warranty Expired/ Bankruptcy
Originally Printed: February 9, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I purchased a new construction home in September 2002 with a one-year warranty. Six months ago, the ceramic floor tile begun to creak and pop out in several places. The builder said the installer will be contacted, but he may not be able to get to me for several months due to the building boom. Who would expect to have to replace tile after two years? The tear-up and replacement, if a similar tile can be found, will be expensive. Is the builder still responsible although the one-year warranty has expired?
A. You must give a chance to the installer (probably a subcontractor) to fix the tile floor and replace the broken and/or missing tiles himself. Get the name, address and telephone number of the installer from the builder and contact the installer yourself to make your complaint. And keep complaining until he finishes the job. Whether there is a construction boom or not, the installer should make good of his own work. It sounds like the installer failed to install a proper foundation for the tile work. The builder gives a one-year warranty and after that it is up to the installer to finish the job properly, not the builder.
Q. What is the difference between a Chapter 7 and a Chapter 13 Bankruptcy?
A. A Chapter 7 Bankruptcy is a liquidation of your assets, if any, and a Chapter 13 Bankruptcy is a reorganization of your debts. A trustee is involved in both chapters, but each has a different job. In a Chapter 7, the trustee will make sure there are no assets to distribute to the creditors before the debtor can get a discharge. In a Chapter 13, the trustee will get a monthly payment from the debtor and spread the money among all creditors, paying aback a percentage of the debt owed to each creditor. Despite the fact that a debtor can only file for Chapter 7 Bankruptcy every seven years, the same debtor could file a Chapter 13 within seven years from having filed a Chapter 7 Bankruptcy.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I purchased a new construction home in September 2002 with a one-year warranty. Six months ago, the ceramic floor tile begun to creak and pop out in several places. The builder said the installer will be contacted, but he may not be able to get to me for several months due to the building boom. Who would expect to have to replace tile after two years? The tear-up and replacement, if a similar tile can be found, will be expensive. Is the builder still responsible although the one-year warranty has expired?
A. You must give a chance to the installer (probably a subcontractor) to fix the tile floor and replace the broken and/or missing tiles himself. Get the name, address and telephone number of the installer from the builder and contact the installer yourself to make your complaint. And keep complaining until he finishes the job. Whether there is a construction boom or not, the installer should make good of his own work. It sounds like the installer failed to install a proper foundation for the tile work. The builder gives a one-year warranty and after that it is up to the installer to finish the job properly, not the builder.
Q. What is the difference between a Chapter 7 and a Chapter 13 Bankruptcy?
A. A Chapter 7 Bankruptcy is a liquidation of your assets, if any, and a Chapter 13 Bankruptcy is a reorganization of your debts. A trustee is involved in both chapters, but each has a different job. In a Chapter 7, the trustee will make sure there are no assets to distribute to the creditors before the debtor can get a discharge. In a Chapter 13, the trustee will get a monthly payment from the debtor and spread the money among all creditors, paying aback a percentage of the debt owed to each creditor. Despite the fact that a debtor can only file for Chapter 7 Bankruptcy every seven years, the same debtor could file a Chapter 13 within seven years from having filed a Chapter 7 Bankruptcy.
Legal Eaze #15 Fireplace/ Community Property
Originally Printed: February 23, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
Legal Eaze #14 Evicting/ Child Support
Originally Printed: January 26, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I have a tenant in one of my rental homes who has a two-year lease with option to purchase the home. He has made substantial improvements to the home, increasing its value. However, he is a drug user and the house has become a haven for his drug-addicted friends. I want to evict him but I want to do it legally and fairly. What do I do?
A. The following clauses should be in your lease agreement: 1. Forbidding illegal activities during the tenancy. 2. Your approval was needed before your tenant could make any improvements to the property. Do you have proof that drugs are being used on the property? If so, you can evict him on that ground. Give him a 30-Day Notice to Vacate. If the does not vacate at the end of the 30 Days, file an Unlawful Detainer action. If you approved of the improvements made to the property, you may have to pay him for the services he rendered, which will complicate the action.
Q. My husband is not paying the child support he was ordered to pay. He quit his job so he would not have to pay for child support just to spite me. I am working two jobs but can’t make ends meet, and my two kids are suffering needlessly. What should I do?
A. Did you husband go back to court and make a Motion to modify the amount he has to pay in child support? If he did not, he is still obligated to pay the child support he was ordered to pay and you can ask Child Support Services to collect the arrearages and the child support you are entitled to. It is unfortunate that many people refuse to work in order to avoid paying their child support obligations, however, if they are able to work yet have voluntarily quit their jobs just to frustrate their children’s needs, they can go to jail, lose their driver’s license, lose their occupational license, etc. There is a great effort by the governmental authorities to see that parents take their responsibility to support their children seriously and the consequences of not doing so are severe. Child Support Services are a little slow, but they do a commendable job of bringing wayward parents back in line. Contact them immediately, especially if you cannot afford to hire a private attorney.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I have a tenant in one of my rental homes who has a two-year lease with option to purchase the home. He has made substantial improvements to the home, increasing its value. However, he is a drug user and the house has become a haven for his drug-addicted friends. I want to evict him but I want to do it legally and fairly. What do I do?
A. The following clauses should be in your lease agreement: 1. Forbidding illegal activities during the tenancy. 2. Your approval was needed before your tenant could make any improvements to the property. Do you have proof that drugs are being used on the property? If so, you can evict him on that ground. Give him a 30-Day Notice to Vacate. If the does not vacate at the end of the 30 Days, file an Unlawful Detainer action. If you approved of the improvements made to the property, you may have to pay him for the services he rendered, which will complicate the action.
Q. My husband is not paying the child support he was ordered to pay. He quit his job so he would not have to pay for child support just to spite me. I am working two jobs but can’t make ends meet, and my two kids are suffering needlessly. What should I do?
A. Did you husband go back to court and make a Motion to modify the amount he has to pay in child support? If he did not, he is still obligated to pay the child support he was ordered to pay and you can ask Child Support Services to collect the arrearages and the child support you are entitled to. It is unfortunate that many people refuse to work in order to avoid paying their child support obligations, however, if they are able to work yet have voluntarily quit their jobs just to frustrate their children’s needs, they can go to jail, lose their driver’s license, lose their occupational license, etc. There is a great effort by the governmental authorities to see that parents take their responsibility to support their children seriously and the consequences of not doing so are severe. Child Support Services are a little slow, but they do a commendable job of bringing wayward parents back in line. Contact them immediately, especially if you cannot afford to hire a private attorney.
Legal Eaze #13 Road Rage
Originally Printed: January 12, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. This is about road rage. I was on my way home at 9 p.m. and came to a stop light at Tucker and Valley Boulevard. A big Ram 3500 truck was following me very closely and actually hit me in the back as I was waiting to make a right turn on Valley Boulevard. I moved the car into the first parking lot available while the truck was still behind me. I got out of the car to check and make sure there was no damage, but there was a lot of damage. There was a huge dent right in the middle of my trunk where his front grill imprinted itself. As I approached the driver of the truck who had not yet opened his window, I shouted I needed to see his driver’s license and his insurance card. He then opened his window and started screaming at me on the top of his lungs, calling me foul names and saying that I had no business driving so slowly on city streets. I was totally taken by surprise as I got off the 58 and was driving at a speed considered safe while driving in sleet and rain. I became scared because he appeared to be a big man totally out of control as he started to open his door. I thought he was going to attack me. As he was still screaming at me, I ran back to my car and drove away. Now I have a huge dent in the trunk of my car, and am angry about what happened. What do I do?
A. You failed to tell me whether you wrote down his license number. Tucker and Valley Blvd., is a pretty busy corner, wasn’t there anyone around? Do you have a cell phone? If you do, that was the time to use it and call the police immediately. This man was at fault. He apparently scared you out of getting the information you were entitled to. I am not sure why so many people feel invulnerable when they get into their big truck or SUV, and are literally ready to kill or drive over anyone who does not drive fast enough. First, you need to report this to the police, then report it to your insurance company. They will investigate the incident. If you did not write down the license plate number, you may be out of luck. If there is a next time, do not run away. Just sit in your car, call the police and write down the license plate number and take note of any characteristics the offending vehicle may have.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. This is about road rage. I was on my way home at 9 p.m. and came to a stop light at Tucker and Valley Boulevard. A big Ram 3500 truck was following me very closely and actually hit me in the back as I was waiting to make a right turn on Valley Boulevard. I moved the car into the first parking lot available while the truck was still behind me. I got out of the car to check and make sure there was no damage, but there was a lot of damage. There was a huge dent right in the middle of my trunk where his front grill imprinted itself. As I approached the driver of the truck who had not yet opened his window, I shouted I needed to see his driver’s license and his insurance card. He then opened his window and started screaming at me on the top of his lungs, calling me foul names and saying that I had no business driving so slowly on city streets. I was totally taken by surprise as I got off the 58 and was driving at a speed considered safe while driving in sleet and rain. I became scared because he appeared to be a big man totally out of control as he started to open his door. I thought he was going to attack me. As he was still screaming at me, I ran back to my car and drove away. Now I have a huge dent in the trunk of my car, and am angry about what happened. What do I do?
A. You failed to tell me whether you wrote down his license number. Tucker and Valley Blvd., is a pretty busy corner, wasn’t there anyone around? Do you have a cell phone? If you do, that was the time to use it and call the police immediately. This man was at fault. He apparently scared you out of getting the information you were entitled to. I am not sure why so many people feel invulnerable when they get into their big truck or SUV, and are literally ready to kill or drive over anyone who does not drive fast enough. First, you need to report this to the police, then report it to your insurance company. They will investigate the incident. If you did not write down the license plate number, you may be out of luck. If there is a next time, do not run away. Just sit in your car, call the police and write down the license plate number and take note of any characteristics the offending vehicle may have.
Saturday, January 3, 2009
Legal Eaze #12 Cattle Snow/ Abusive Husband
Originally Printed: December 29, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. We normally have snow by now. I have acres of land on a slope and located where it is easy for children to invade my property to snow play. Last year, kids damaged my fence and a few cattle got out. Although I repaired the fence and managed to get all my cattle back, how do I avoid a repeat this year?
A. Short of building a high fence around your property and placing signs in various strategic places, as well as standing around to shoo away any trespassers, it might be difficult to stop children from coming onto your property to play. The combination “slope and snow” is what we call an “attractive nuisance” in legal terms. You may even be held responsible if a kid gets hurt on your property. I remember last year, Kern County sheriffs were stopping people from going up to Alpine Forest for that very reason. It is unfortunate that there are insufficient parking spaces at Tehachapi Mountain Park for these families to go up there to play and leave surrounding private properties intact. Just make sure that you have your fence up and have “no trespassing” signs at various locations in order to discourage the invaders as well as potential lawsuits should injuries occur on your land. Keep an eye out to ensure your fence does not get damaged again and write down the license plate number of the vehicles that brought the “destroyers”. It is an excellent way to track down the parents of those children that cause damage to your property and hold them responsible.
Q. My husband drinks a lot and becomes abusive and violent. This is a time of the year where a lot of people are drinking and he thinks this validates an increase in the number of drinks he can have. I fear for myself and my children during the holidays. It is worse than at any other times. What should I do?
A. I am sorry that the holidays are an unhappy time of the year for you. If your husband does not realize how he is harming his family by his heavy drinking, it may be time for you to seek refuge elsewhere. Do you have family or a friend that you can go visit, taking your children with you? By removing yourself and your children from you home, you remove the temptation for your husband to abuse you. It is difficult to decide to leave your husband now, but once you put some distance between and the abuser, you may have a clearer view of your situation. I wish you the wisdom to make the right decision.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. We normally have snow by now. I have acres of land on a slope and located where it is easy for children to invade my property to snow play. Last year, kids damaged my fence and a few cattle got out. Although I repaired the fence and managed to get all my cattle back, how do I avoid a repeat this year?
A. Short of building a high fence around your property and placing signs in various strategic places, as well as standing around to shoo away any trespassers, it might be difficult to stop children from coming onto your property to play. The combination “slope and snow” is what we call an “attractive nuisance” in legal terms. You may even be held responsible if a kid gets hurt on your property. I remember last year, Kern County sheriffs were stopping people from going up to Alpine Forest for that very reason. It is unfortunate that there are insufficient parking spaces at Tehachapi Mountain Park for these families to go up there to play and leave surrounding private properties intact. Just make sure that you have your fence up and have “no trespassing” signs at various locations in order to discourage the invaders as well as potential lawsuits should injuries occur on your land. Keep an eye out to ensure your fence does not get damaged again and write down the license plate number of the vehicles that brought the “destroyers”. It is an excellent way to track down the parents of those children that cause damage to your property and hold them responsible.
Q. My husband drinks a lot and becomes abusive and violent. This is a time of the year where a lot of people are drinking and he thinks this validates an increase in the number of drinks he can have. I fear for myself and my children during the holidays. It is worse than at any other times. What should I do?
A. I am sorry that the holidays are an unhappy time of the year for you. If your husband does not realize how he is harming his family by his heavy drinking, it may be time for you to seek refuge elsewhere. Do you have family or a friend that you can go visit, taking your children with you? By removing yourself and your children from you home, you remove the temptation for your husband to abuse you. It is difficult to decide to leave your husband now, but once you put some distance between and the abuser, you may have a clearer view of your situation. I wish you the wisdom to make the right decision.
Legal Eaze #11 Care for Elderly Parents/ Car Dealership
Originally Printed: December 15, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My parents are quite elderly. My father is already in a wheelchair from diabetes and arthritis, while my mother suffers from congestive heart failure. They live together on their 20-acre property and the closest neighbor is a couple of miles away. I fear for their health and safety and need to convince them this is not the safest way to live at their age. How can I convince them to change their lifestyle?
A. Do your parents still have all their mental faculties? If so, you need to speak with each one separately and convince each one to sign a Power of Attorney for financial decisions and Power for Attorney for healthcare. One way would be to ask each one: “Should anything happen to the other, how would you take the decisions that need to be taken in the absence of the other?” Listen to the response and if it does not make sense, formulate and make your argument using that response. Sometimes, elderly people can be very obstinate and not realize that their lifestyle can endanger their spouse. Your love for your parents should dictate how you need to approach them and prepare them to accept and sign Powers of Attorney. Such POA can be “springing” in other words are activated only if your parent’s mental ability is lacking according to a physician, or if one or both parents are physically incapacitated and unable to care for the other. POA’s wording can be very flexible.
Q. I purchased a used vehicle from a dealer that had a three-month warranty. The day after I took it off the lot, the brakes failed and I hit the back of another car that was stopped at a red light. I was raining pretty hard that day. I went back to the dealer and complained that my brakes failed and had a car accident. The dealer gave me the runaround and refused to do anything about the brakes, not to mention the $2,500 of damages to the other car. What can I do?
A. There are several issues here. First it was raining the day of the accident. How fast were you going and when did you start applying your brakes? Rain can render the pavement very slick, especially if it was the first rain of the season. Second how do you know that your brakes failed? It is against the law for a dealer to sell an unsafe used vehicle and that includes bad or no brakes. The accident was surely investigated by the police and the police report would certainly give you an idea of who was at fault and caused the accident.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My parents are quite elderly. My father is already in a wheelchair from diabetes and arthritis, while my mother suffers from congestive heart failure. They live together on their 20-acre property and the closest neighbor is a couple of miles away. I fear for their health and safety and need to convince them this is not the safest way to live at their age. How can I convince them to change their lifestyle?
A. Do your parents still have all their mental faculties? If so, you need to speak with each one separately and convince each one to sign a Power of Attorney for financial decisions and Power for Attorney for healthcare. One way would be to ask each one: “Should anything happen to the other, how would you take the decisions that need to be taken in the absence of the other?” Listen to the response and if it does not make sense, formulate and make your argument using that response. Sometimes, elderly people can be very obstinate and not realize that their lifestyle can endanger their spouse. Your love for your parents should dictate how you need to approach them and prepare them to accept and sign Powers of Attorney. Such POA can be “springing” in other words are activated only if your parent’s mental ability is lacking according to a physician, or if one or both parents are physically incapacitated and unable to care for the other. POA’s wording can be very flexible.
Q. I purchased a used vehicle from a dealer that had a three-month warranty. The day after I took it off the lot, the brakes failed and I hit the back of another car that was stopped at a red light. I was raining pretty hard that day. I went back to the dealer and complained that my brakes failed and had a car accident. The dealer gave me the runaround and refused to do anything about the brakes, not to mention the $2,500 of damages to the other car. What can I do?
A. There are several issues here. First it was raining the day of the accident. How fast were you going and when did you start applying your brakes? Rain can render the pavement very slick, especially if it was the first rain of the season. Second how do you know that your brakes failed? It is against the law for a dealer to sell an unsafe used vehicle and that includes bad or no brakes. The accident was surely investigated by the police and the police report would certainly give you an idea of who was at fault and caused the accident.
Legal Eaze #10 Mother Abuse / Dicorce House Title
Title: November 24, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My wife beat my 13-year-old son with a fire poker made of heavy metal. When I got home from work, he was bleeding heavily from a wound on his right arm, through which I could see a bone. He was shying away from her, hiding underneath hung clothes in a closet. She left the house and ran to her sister who lives in another county. Besides taking him to the hospital, what can I do to stop this madness?
A. Call the police. This is a criminal matter. When a mother starts beating up her child with a metal rod and injures the child, it is time to put “mom” in jail. She might need psychiatric care and/or psychological therapy. Once she comes out of jail, you may need to obtain a temporary restraining order against her and get her out of the house and away from your son. It does not matter what your son did to anger her to that point, she does not have the right to “discipline” him in such a harsh manner. In fact, it is a crime now to even spank a child. Parents need to find another way to instill respect and obedience in their children besides “beating” them up.
Q. I obtained a divorce about five years ago and the residence I have been living in was awarded to me as my sold and separate property in the divorce decree. I am now trying to refinance the house and I just discovered that the tile of the house is still held jointly with my ex-husband. I have no idea how that could have happened, and I don’t know where my ex-husband now resides. What can I do?
A. If you were represented by an attorney, he committed malpractice. If you represented yourself, such omissions are the reason why you should have hired an attorney to represent you. You need to file an Order to Show Cause with the same court that signed the divorce decree. If you cannot find your ex-husband, the court clerk will have to sign the Quitclaim Deed for him. But you need to prepare and file a declaration telling the court what the problem is and why you need the court clerk to sign the deed. If your declaration is believed by the judge, you will get the Order you need, instructing the court clerk to sign your Quitclaim Deed, which you can then have recorded with the county recorder.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My wife beat my 13-year-old son with a fire poker made of heavy metal. When I got home from work, he was bleeding heavily from a wound on his right arm, through which I could see a bone. He was shying away from her, hiding underneath hung clothes in a closet. She left the house and ran to her sister who lives in another county. Besides taking him to the hospital, what can I do to stop this madness?
A. Call the police. This is a criminal matter. When a mother starts beating up her child with a metal rod and injures the child, it is time to put “mom” in jail. She might need psychiatric care and/or psychological therapy. Once she comes out of jail, you may need to obtain a temporary restraining order against her and get her out of the house and away from your son. It does not matter what your son did to anger her to that point, she does not have the right to “discipline” him in such a harsh manner. In fact, it is a crime now to even spank a child. Parents need to find another way to instill respect and obedience in their children besides “beating” them up.
Q. I obtained a divorce about five years ago and the residence I have been living in was awarded to me as my sold and separate property in the divorce decree. I am now trying to refinance the house and I just discovered that the tile of the house is still held jointly with my ex-husband. I have no idea how that could have happened, and I don’t know where my ex-husband now resides. What can I do?
A. If you were represented by an attorney, he committed malpractice. If you represented yourself, such omissions are the reason why you should have hired an attorney to represent you. You need to file an Order to Show Cause with the same court that signed the divorce decree. If you cannot find your ex-husband, the court clerk will have to sign the Quitclaim Deed for him. But you need to prepare and file a declaration telling the court what the problem is and why you need the court clerk to sign the deed. If your declaration is believed by the judge, you will get the Order you need, instructing the court clerk to sign your Quitclaim Deed, which you can then have recorded with the county recorder.
Legal Eaze #9 Common Law Marriage/ Propery Rental Shed, Verbal Agreement Loan
Originally Printed: November 10, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been living with my boyfriend for the last seven years. We hold ourselves as being married to the outside world, but we never actually got married. Is there such a thing as common law marriage in California?
A. No, California is not a common law marriage state. This means unless you have a marriage license, you are not married. However, had you been living for a number of years in another state that recognizes common law marriage, the State of California would have to honor the other state’s law. But if you have been living in California with your boyfriend for the last seven years, he is still only that, a boyfriend.
Q. I have a large shed which was unfortunately built half-way on my neighbor’s property. When the shed was built, approximately 12 years ago, I paid $2000 to my neighbor to give me an easement for the 75 square feet my shed occupies on his property. My neighbor has sold his property and the new owner wants me to move my shed back onto my property or he will destroy the portion that occupies his property,. What do I do?
A. Hopefully your easement was properly recorded with the county recorder. If you new neighbor causes you problems, you should seek an injunction to stop him from destroying your property. If he proceeds with his threats, you have recourse in filing a lawsuit for your damages. If you damages are not more than $7,500, you should use the Small Claims Court, which is much cheaper and faster.
Q. I learned of a verbal agreement Law in California. I loaned a substantial amount of money to my brother-in-law, but there’s nothing in writing. He promised to pay it back within two weeks, a promise he did not keep. It’s now been two months and he refuses to return my phone calls. Does this law pertain to this type of transaction?
A. I am not sure what law you are talking about, maybe Parol Evidence. You will need to sue your brother-in-law. However, before you do, you must show that you used money you loaned to him from your own funds. Your evidence must trace the money to funds you had in your possession, such as a bank account. If you had a witness present when the transaction took place, he can testify on your behalf. Otherwise, you may have to subpoena your brother’ in law’s bank records to prove he obtained the money.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been living with my boyfriend for the last seven years. We hold ourselves as being married to the outside world, but we never actually got married. Is there such a thing as common law marriage in California?
A. No, California is not a common law marriage state. This means unless you have a marriage license, you are not married. However, had you been living for a number of years in another state that recognizes common law marriage, the State of California would have to honor the other state’s law. But if you have been living in California with your boyfriend for the last seven years, he is still only that, a boyfriend.
Q. I have a large shed which was unfortunately built half-way on my neighbor’s property. When the shed was built, approximately 12 years ago, I paid $2000 to my neighbor to give me an easement for the 75 square feet my shed occupies on his property. My neighbor has sold his property and the new owner wants me to move my shed back onto my property or he will destroy the portion that occupies his property,. What do I do?
A. Hopefully your easement was properly recorded with the county recorder. If you new neighbor causes you problems, you should seek an injunction to stop him from destroying your property. If he proceeds with his threats, you have recourse in filing a lawsuit for your damages. If you damages are not more than $7,500, you should use the Small Claims Court, which is much cheaper and faster.
Q. I learned of a verbal agreement Law in California. I loaned a substantial amount of money to my brother-in-law, but there’s nothing in writing. He promised to pay it back within two weeks, a promise he did not keep. It’s now been two months and he refuses to return my phone calls. Does this law pertain to this type of transaction?
A. I am not sure what law you are talking about, maybe Parol Evidence. You will need to sue your brother-in-law. However, before you do, you must show that you used money you loaned to him from your own funds. Your evidence must trace the money to funds you had in your possession, such as a bank account. If you had a witness present when the transaction took place, he can testify on your behalf. Otherwise, you may have to subpoena your brother’ in law’s bank records to prove he obtained the money.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Legal Eaze #8 Landlord Privacy Intrusion/ Violent Son
Originally Printed: October 20, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I rent a guest house located in the back of my landlord’s residence. My landlord comes into my rent guest house whenever he feels like it to fix this or that. He makes up excuses to come in unannounced. He never gives me notice and I am very bothered by this intrusion on my privacy. Once, he came in while I was in the shower and lo and behold, when I came out of the shower naked, there he was in my little kitchenette, fixing my stove, which I did not know was “broken”. What can I do to stop this?
A. Civil Code Section 1954 regulates the time and circumstances under which a landlord may enter a residential rental unit. If an emergency exists, your landlord may enter without notice. Otherwise, he must give you a Notice to Enter your premises, which must specify the date, approximate time and purpose of the entry. The statute expressly states that a written notice is not necessary if the landlord and tenant orally agree to an entry to perform agreed-upon repairs or to supply agreed-upon services.. Any such oral agreement to enter must include the date and approximate time of the entry, which must be within one week of the oral agreement. Should the landlord violate the law, a tenant can sue and be awarded up to $2000 for each violation. However, I believe these intrusions by your landlord have a far more sinister purpose. You may need to seek a Restraining Order in addition to filing a lawsuit against him for invasion of privacy, among many other causes of action.
Q. I am an 89-year-old man suffering from heart disease and diabetes. My son lives in my house, is violent and has beaten me up on several occasions. He moved in with me several years ago to look after me. I am terrified of him and I can’t take too much more of his abuse. What can I do?
A. I would strongly suggest that you seek a Temporary Restraining Order (TRO) to get him out and away from your house. You can get immediate relief by filing a Request for Order, Description of Abuse, Temporary Restraining Order and Notice of Hearing with the closest court. You son must be served with these documents to give him notice of the hearing and give him a chance to be heard in court too. The can give you a TRO lasting up to three years.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I rent a guest house located in the back of my landlord’s residence. My landlord comes into my rent guest house whenever he feels like it to fix this or that. He makes up excuses to come in unannounced. He never gives me notice and I am very bothered by this intrusion on my privacy. Once, he came in while I was in the shower and lo and behold, when I came out of the shower naked, there he was in my little kitchenette, fixing my stove, which I did not know was “broken”. What can I do to stop this?
A. Civil Code Section 1954 regulates the time and circumstances under which a landlord may enter a residential rental unit. If an emergency exists, your landlord may enter without notice. Otherwise, he must give you a Notice to Enter your premises, which must specify the date, approximate time and purpose of the entry. The statute expressly states that a written notice is not necessary if the landlord and tenant orally agree to an entry to perform agreed-upon repairs or to supply agreed-upon services.. Any such oral agreement to enter must include the date and approximate time of the entry, which must be within one week of the oral agreement. Should the landlord violate the law, a tenant can sue and be awarded up to $2000 for each violation. However, I believe these intrusions by your landlord have a far more sinister purpose. You may need to seek a Restraining Order in addition to filing a lawsuit against him for invasion of privacy, among many other causes of action.
Q. I am an 89-year-old man suffering from heart disease and diabetes. My son lives in my house, is violent and has beaten me up on several occasions. He moved in with me several years ago to look after me. I am terrified of him and I can’t take too much more of his abuse. What can I do?
A. I would strongly suggest that you seek a Temporary Restraining Order (TRO) to get him out and away from your house. You can get immediate relief by filing a Request for Order, Description of Abuse, Temporary Restraining Order and Notice of Hearing with the closest court. You son must be served with these documents to give him notice of the hearing and give him a chance to be heard in court too. The can give you a TRO lasting up to three years.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Legal Eaze #7 Child Support/ guardianship
Originally Printed: October 6, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. My daughter is permanently disabled and will never be able to support herself. She is 18 years old. Her father wants to stop paying the child support ordered by the divorce court. I cannot afford to support my daughter by myself for the rest of her life. What can I do?
A. Both parents have a duty to support a disabled adult child. If your daughter is attending high school full-time and has not yet graduated, your ex-husband must continue to pay the child support until she turns 19. If your daughter does not attend high school, your ex-husband may want medical proof that your daughter is unable to work for the rest of her life. You should file an Order to Show Cause re: Continued support for a disabled adult child with the court that granted your divorce. You should not have to bear the burden of supporting your disabled daughter alone. However, the court may order your ex-husband to pay less support. Remember, parents of a disabled adult child can only support him or her to the best of their financial ability. By the way, there are governmental programs that can help with the schooling, training and medical needs to your disabled child, and I hope that you have taken advantage of such programs.
Q. My son’s girlfriend died in a car crash a few days ago. They have a daughter who is 1 year old. The dead girlfriend’s parents are seeking guardianship of this child, but so am I. My son is incarcerated because he had a fight with his girlfriend. What can I do?
A. You are short on details about your son’s situation and why he cannot raise his own daughter. If the maternal grandparents have filed a Petitioner for Guardianship, you will be notified of where and when the hearing will take place. You can object to their petition and introduce yourself as a potential guardian for this child. The court will appoint an investigator who will look into who would be the best custodian of this child. This may be an expensive proposition with legal and investigation fees. You have an uphill battle ahead of you, but if you feel you the better “substitute parent” and your son still wants to be part of his daughter’s life, then you should proceed without objection to the maternal grandparents having guardianship.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. My daughter is permanently disabled and will never be able to support herself. She is 18 years old. Her father wants to stop paying the child support ordered by the divorce court. I cannot afford to support my daughter by myself for the rest of her life. What can I do?
A. Both parents have a duty to support a disabled adult child. If your daughter is attending high school full-time and has not yet graduated, your ex-husband must continue to pay the child support until she turns 19. If your daughter does not attend high school, your ex-husband may want medical proof that your daughter is unable to work for the rest of her life. You should file an Order to Show Cause re: Continued support for a disabled adult child with the court that granted your divorce. You should not have to bear the burden of supporting your disabled daughter alone. However, the court may order your ex-husband to pay less support. Remember, parents of a disabled adult child can only support him or her to the best of their financial ability. By the way, there are governmental programs that can help with the schooling, training and medical needs to your disabled child, and I hope that you have taken advantage of such programs.
Q. My son’s girlfriend died in a car crash a few days ago. They have a daughter who is 1 year old. The dead girlfriend’s parents are seeking guardianship of this child, but so am I. My son is incarcerated because he had a fight with his girlfriend. What can I do?
A. You are short on details about your son’s situation and why he cannot raise his own daughter. If the maternal grandparents have filed a Petitioner for Guardianship, you will be notified of where and when the hearing will take place. You can object to their petition and introduce yourself as a potential guardian for this child. The court will appoint an investigator who will look into who would be the best custodian of this child. This may be an expensive proposition with legal and investigation fees. You have an uphill battle ahead of you, but if you feel you the better “substitute parent” and your son still wants to be part of his daughter’s life, then you should proceed without objection to the maternal grandparents having guardianship.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Legal Eaze #6 Probate/ kid throwing rocks
Originally Printed: September 15, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. When my father died several years ago, he had a will which had to go through Probate Court. Thousands of dollars of his estate were spent on attorney’s fees, accountant’s fees and court fees, not to mention that it took a couple of years for members of his family to receive their inheritance. I would prefer my children did not have to go through this long and expensive court process. Is there anything I can do now?
A. I am glad you asked. Yes, there is, and it is called a revocable living trust. As the trustor or settler, you can create a trust in which you transfer all your assets, including your residence. In California, all estates worth more than $100,000 must go through probate, unless the bulk of your estate is your residence which is held in a joint tenancy with your spouse, or your assets have been transferred into a living trust. You can control all your assets by naming yourself the trustee. If you are married, your wife can be your co-trustee. During your lifetime, you can change the terms or beneficiaries of your “revocable” trust. You must name a successor trustee who will enforce the terms of your trust after your death. After your death, your part of the trust (if you are married, it is called an AB Trust) becomes irrevocable, and it is the successor trustee’s job to distribute your assets to the beneficiaries designated in your trust. A knowledgeable attorney can help you with other estate planning tools that will avoid the necessity for conservatorship if you become disabled and incapable of making your own financial and health decisions. Often, such tools are encompassed in a Trust package which, compared to the cost of probate, is very affordable and simply a necessity for most families.
Q. A neighborhood kid has been throwing rocks at my dog for several months. A few days ago, my German shepherd escaped the backyard by climbing over the fence in pursuit of its tormentor. What is my liability?
A. When you dog escaped your backyard, you became liable for any injuries caused by your dog, under the Dog Bite Act, even if the injuries were not caused by a dog bite. However, depending on whether the child was old enough to understand the consequences of his actions in inciting your dog’s revengeful instincts, your liability may be lessened by the child’s contributory negligence.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. When my father died several years ago, he had a will which had to go through Probate Court. Thousands of dollars of his estate were spent on attorney’s fees, accountant’s fees and court fees, not to mention that it took a couple of years for members of his family to receive their inheritance. I would prefer my children did not have to go through this long and expensive court process. Is there anything I can do now?
A. I am glad you asked. Yes, there is, and it is called a revocable living trust. As the trustor or settler, you can create a trust in which you transfer all your assets, including your residence. In California, all estates worth more than $100,000 must go through probate, unless the bulk of your estate is your residence which is held in a joint tenancy with your spouse, or your assets have been transferred into a living trust. You can control all your assets by naming yourself the trustee. If you are married, your wife can be your co-trustee. During your lifetime, you can change the terms or beneficiaries of your “revocable” trust. You must name a successor trustee who will enforce the terms of your trust after your death. After your death, your part of the trust (if you are married, it is called an AB Trust) becomes irrevocable, and it is the successor trustee’s job to distribute your assets to the beneficiaries designated in your trust. A knowledgeable attorney can help you with other estate planning tools that will avoid the necessity for conservatorship if you become disabled and incapable of making your own financial and health decisions. Often, such tools are encompassed in a Trust package which, compared to the cost of probate, is very affordable and simply a necessity for most families.
Q. A neighborhood kid has been throwing rocks at my dog for several months. A few days ago, my German shepherd escaped the backyard by climbing over the fence in pursuit of its tormentor. What is my liability?
A. When you dog escaped your backyard, you became liable for any injuries caused by your dog, under the Dog Bite Act, even if the injuries were not caused by a dog bite. However, depending on whether the child was old enough to understand the consequences of his actions in inciting your dog’s revengeful instincts, your liability may be lessened by the child’s contributory negligence.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
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