Title: December 7, 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 or fax them to (661)825-8880.
Q. I heard that several people caught Hepatitis A from patronizing a local restaurant. A member of my family went there not long ago. I am very concerned for my family’s health. What is the restaurant’s liability for making people sick from contaminated food?
A. If getting Hepatitis A can be traced to contaminated food from this restaurant, the owner(s) of the restaurant will be liable for any damages sustained as a result of catching this dreadful disease. Infected individuals can unknowingly infect others two weeks prior to feeling ill themselves. So you are justified in being concerned. Damages the restaurant’s owners can be sued for include medical care, income loss, pain and suffering, mental anguish, loss of consortium, etc. Hepatitis A is a serious disease and kills approximately 100 people in this country every year. Tracing of the origins of the disease must be confirmed however before filing any lawsuits. So, you must be sure that the disease was contracted due to contaminated food or unsanitary conditions at this restaurant.
Q. My son rides on a school bus everyday. Because the bus driver has ill feelings towards my son, he must sit in the front row everyday. I was informed by him that because he is in the front row, he can see everything in front of the bus and what the driver is doing while driving the bus. The driver is constantly watching the rear of the bus through her back view mirror instead of watching where she is driving the bus. Not long ago, she almost hit a child who was right in front of the bus. I am fearful that this driver is going to cause an accident pretty soon while she has several children as passengers. What can be done about this?
A. First and foremost, I would let her supervisor know that her driving is dangerous. It is indeed the duty of a school bus driver to ensure that the kids in her care behave. But, her first duty is to ensure their safety. If supervision of the children becomes her primary focus, then she needs to have a driver who will focus on driving the bus. By notifying her supervisor, the school district will become aware of the dangers the children are facing while in this bus driver’s care. If an accident does occur, the school district will become liable through the “respondeat superior” theory which means that the employer becomes liable for damages incurred as a result of their employee’s negligence while she is working.
Thursday, March 12, 2009
Legal Eaze #36 Easment/Probate
Title: November 9, 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 or fax them to (661)825-8880.
Q. How does one go about researching property lines and where easement/utility roads run? I believe there is an easement that runs behind my home. A new development of homes is going up soon, and the developer is going to build a home right behind my house without allowing the easement space between properties. On top of everything, the house planned will be a two-story house. Isn’t that illegal?
A. It depends. You have a choice of places to go to find out where the property lines are located or whether or not there is an easement running behind your house. You can hire a surveyor or you can have a title company prepare a preliminary report. You can also go to Kern County Engineering Department in Bakersfield and look at the plat maps of the entire Kern County. Lastly, you can go to the planning department right here at Tehachapi City Hall. The developer may have paid money to build over the easement or the easement may have been abandoned. There are a million reasons why this house may be built where you think it should not be built. If it is infringing upon your privacy, it is up to you to complain about it to the city planning commission. However, it may be too late to stop it.
Q. What is the difference between a living will and a living trust?
A. There is a major difference. A Living Will is a document that tells health workers that you do or do not want extraordinary efforts to be made to save your life or to maintain you alive, no matter your health condition. It makes your last wishes known as to how you want your dignity to be respected at death and that you do not want your life to be extended if the quality of your life is nonexistent. If you have a Will and your assets are worth more than $100,000, you Will must go through Probate court. A Living Trust is a legal scheme to avoid Probate court. Your assets are transferred into the Living Trust, in other words, the trust becomes the owner of your assets. The trust assets are managed by a Trustee. Often the trustee is the same person as the Trustor. As long as the Trustor is alive, the terms of the trust can be changed. Upon the death of the Trustor, a Successor Trustee takes over and distributes the assets to the beneficiaries according to the terms of the trust. It is all perfectly legal and far more efficient than the Probate Court.
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 or fax them to (661)825-8880.
Q. How does one go about researching property lines and where easement/utility roads run? I believe there is an easement that runs behind my home. A new development of homes is going up soon, and the developer is going to build a home right behind my house without allowing the easement space between properties. On top of everything, the house planned will be a two-story house. Isn’t that illegal?
A. It depends. You have a choice of places to go to find out where the property lines are located or whether or not there is an easement running behind your house. You can hire a surveyor or you can have a title company prepare a preliminary report. You can also go to Kern County Engineering Department in Bakersfield and look at the plat maps of the entire Kern County. Lastly, you can go to the planning department right here at Tehachapi City Hall. The developer may have paid money to build over the easement or the easement may have been abandoned. There are a million reasons why this house may be built where you think it should not be built. If it is infringing upon your privacy, it is up to you to complain about it to the city planning commission. However, it may be too late to stop it.
Q. What is the difference between a living will and a living trust?
A. There is a major difference. A Living Will is a document that tells health workers that you do or do not want extraordinary efforts to be made to save your life or to maintain you alive, no matter your health condition. It makes your last wishes known as to how you want your dignity to be respected at death and that you do not want your life to be extended if the quality of your life is nonexistent. If you have a Will and your assets are worth more than $100,000, you Will must go through Probate court. A Living Trust is a legal scheme to avoid Probate court. Your assets are transferred into the Living Trust, in other words, the trust becomes the owner of your assets. The trust assets are managed by a Trustee. Often the trustee is the same person as the Trustor. As long as the Trustor is alive, the terms of the trust can be changed. Upon the death of the Trustor, a Successor Trustee takes over and distributes the assets to the beneficiaries according to the terms of the trust. It is all perfectly legal and far more efficient than the Probate Court.
Legal Eaze #35 Credit Card Debt/ Spousal Support
Title: December 21, 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 or fax them to (661)825-8880.
Q. My daughter had to file for bankruptcy when she divorced her first husband, because he “took her to the cleaners”. Now she has remarried and wants to buy a house with her new husband. What are the ramifications of the bankruptcy she filed some time ago?
A. A bankruptcy stays on someone’s credit report for 10 years. However, a person who has undergone bankruptcy can re-reestablish his/her credit much sooner. Any credit will cost more, i.e. the interest rate charged to that person will be higher than that charged to someone who has a perfect credit score. As the credit is slowly re-established and payments on household bills and other bills are being paid on time on a regular basis, the interest charged on credit will slowly decrease until such time that creditors feel the risk of lending money to that person is low or is equal to the norm. This can take anywhere from two to four years, or longer, depending on the spending habits of that person, whether he/she is living above his/her means, paying bills on time and whether the credit limit on credit cards is reached too often. One of the best way to re-establish one’s credit is to avoid “maxing” out credit cards and to keep your balance(s) at a minimum. Having 10 credit cards is not a good idea, because creditors will feel that it is much easier to get quickly into trouble with that many credit cards. One must not forget also that it is much more difficult to file for bankruptcy nowadays since bankruptcy laws changed in October. Many will be forced to file a Chapter 13 bankruptcy which entails repayment of your debts over a period of up to five years.
Q. I have to pay spousal support to my ex-wife until she remarries or dies. She lives with some guy in another state. Do I have to continue paying spousal support to her?
A. Family law Code Section 4323 states there is a rebuttable presumption that there is a decreased need for spousal support when the supported party is cohabiting with a person of the opposite sex. The supporting party may seek relief by claiming that the non-marital partner’s income must be considered in determining spousal support award to the extent it reduces the other’s living expenses. You must make a motion in Court to modify the spousal support due to the cohabitation of the supported party and her reduced living expenses.
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 or fax them to (661)825-8880.
Q. My daughter had to file for bankruptcy when she divorced her first husband, because he “took her to the cleaners”. Now she has remarried and wants to buy a house with her new husband. What are the ramifications of the bankruptcy she filed some time ago?
A. A bankruptcy stays on someone’s credit report for 10 years. However, a person who has undergone bankruptcy can re-reestablish his/her credit much sooner. Any credit will cost more, i.e. the interest rate charged to that person will be higher than that charged to someone who has a perfect credit score. As the credit is slowly re-established and payments on household bills and other bills are being paid on time on a regular basis, the interest charged on credit will slowly decrease until such time that creditors feel the risk of lending money to that person is low or is equal to the norm. This can take anywhere from two to four years, or longer, depending on the spending habits of that person, whether he/she is living above his/her means, paying bills on time and whether the credit limit on credit cards is reached too often. One of the best way to re-establish one’s credit is to avoid “maxing” out credit cards and to keep your balance(s) at a minimum. Having 10 credit cards is not a good idea, because creditors will feel that it is much easier to get quickly into trouble with that many credit cards. One must not forget also that it is much more difficult to file for bankruptcy nowadays since bankruptcy laws changed in October. Many will be forced to file a Chapter 13 bankruptcy which entails repayment of your debts over a period of up to five years.
Q. I have to pay spousal support to my ex-wife until she remarries or dies. She lives with some guy in another state. Do I have to continue paying spousal support to her?
A. Family law Code Section 4323 states there is a rebuttable presumption that there is a decreased need for spousal support when the supported party is cohabiting with a person of the opposite sex. The supporting party may seek relief by claiming that the non-marital partner’s income must be considered in determining spousal support award to the extent it reduces the other’s living expenses. You must make a motion in Court to modify the spousal support due to the cohabitation of the supported party and her reduced living expenses.
Legal Eaze #34 Wife on Drugs/Neighbor Kids Burned Down Shed
Title: November 23, 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 or fax them to (661)825-8880.
Q. I have been married for 18 years and have three children. My wife has not worked since we got married. Lately, I have noticed that she is up all night and sleeps a good portion of the day. She leaves the house sometimes in the evenings and does not tell anyone where she goes. The children have been late to school because she falls asleep. Two months ago, she crashed the car because she fell asleep at the wheel. She had two of our children in the back of the car and one of them was pretty banged up in the accident. She gets calls 24 hours a day from very rude people who hang up when I answer the phone. What should I do?
A. I fear your wife may be on drugs. Her “stay-up all night and sleep all day” routine is very much that of a person addicted to “crystal meth” which has become the scourge of Kern County. Before another dreadful accident occurs, I would strongly suggest you file for legal separation and get temporary custody of your children until she seeks drug rehabilitation. Her “sleep at the wheel” episodes could be deadly to your children. There is a strong possibility that a judge would grant temporary custody of your children to you if he or she believes your children are in serious danger.
Q. Last summer, on July 4, my neighbor’s kids were playing with fireworks despite the existing County ban on such dangerous toys. One of the “firebombs” they used exploded and was projected right into a woodshed located on the back of our property. Half of the shed burned down and damaged most of the items stored in it, such as tools, barbecue implements and other things. Our neighbors promised to pay for the damage which amounts to around $8,000, including a new shed. They have not paid a cent yet. What can we do to get our money?
A. You will have to sue them. If you file a Small Claims Court action, you can only obtain damages up to $7,500 (that’s a one time amount, then afterwards only $5,000 can be sued for). If you want to recover the full $8000, you will have to file a lawsuit in Superior Court (limited jurisdiction). Such a lawsuit could take up to a year or longer because it entails far more than a Small Claims Court action, which is usually over and done with within two months. Make sure that you take photographs of the burned out shed and make a list of the damaged items that were stored inside as well as the price you would have to pay to replace these items..
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 or fax them to (661)825-8880.
Q. I have been married for 18 years and have three children. My wife has not worked since we got married. Lately, I have noticed that she is up all night and sleeps a good portion of the day. She leaves the house sometimes in the evenings and does not tell anyone where she goes. The children have been late to school because she falls asleep. Two months ago, she crashed the car because she fell asleep at the wheel. She had two of our children in the back of the car and one of them was pretty banged up in the accident. She gets calls 24 hours a day from very rude people who hang up when I answer the phone. What should I do?
A. I fear your wife may be on drugs. Her “stay-up all night and sleep all day” routine is very much that of a person addicted to “crystal meth” which has become the scourge of Kern County. Before another dreadful accident occurs, I would strongly suggest you file for legal separation and get temporary custody of your children until she seeks drug rehabilitation. Her “sleep at the wheel” episodes could be deadly to your children. There is a strong possibility that a judge would grant temporary custody of your children to you if he or she believes your children are in serious danger.
Q. Last summer, on July 4, my neighbor’s kids were playing with fireworks despite the existing County ban on such dangerous toys. One of the “firebombs” they used exploded and was projected right into a woodshed located on the back of our property. Half of the shed burned down and damaged most of the items stored in it, such as tools, barbecue implements and other things. Our neighbors promised to pay for the damage which amounts to around $8,000, including a new shed. They have not paid a cent yet. What can we do to get our money?
A. You will have to sue them. If you file a Small Claims Court action, you can only obtain damages up to $7,500 (that’s a one time amount, then afterwards only $5,000 can be sued for). If you want to recover the full $8000, you will have to file a lawsuit in Superior Court (limited jurisdiction). Such a lawsuit could take up to a year or longer because it entails far more than a Small Claims Court action, which is usually over and done with within two months. Make sure that you take photographs of the burned out shed and make a list of the damaged items that were stored inside as well as the price you would have to pay to replace these items..
Legal Eaze #33 landscaping damage/ care for children after death
Title: October 26, 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 or fax them to (661)825-8880.
Q. I live in one of the houses below the large development of new houses taking place at the corner of Curry and Highline. Last winter was one of the wettest on record, as everyone knows. As a result, because there was nothing but uncovered dirt in that development, mud ran down the streets below, covered our lawn and destroyed all the landscaping in our front yard. Just a few days ago, we had a lot of rain and again the mud ran down the street. It cost us substantial amount of money to replace the landscaping and a lot of hard work to make our front yard attractive again. How can we avoid a repeat of last year?
A. I hope you contacted the developer and made a complaint about the mud damaging your front yard. In fact, you should have given the developer an invoice for the cost of replacing your landscaping, as well as whatever you paid for the hired labor to clean up your front yard. If you made no contact, the developer will never know what hardship he caused the neighborhood downstream. In fact, this should have been a collective effort on the part of the entire neighborhood to invoice that developer for the problems he caused. Had that been done, the developer would have been on notice and would have ensured that a dam would have been built to protect that neighborhood. If there are still mounds of uncovered dirt above you, make sure to contact the developer to notify him of your past problems and that you do not want this to happen again, otherwise he will be liable for subsequent damages.
Q. I’ve had two children with my boyfriend in a past life, who has long ago left town. My children are now respectively 15 and 11. I was just diagnosed with advanced lung cancer and I don’t think I am going to make it past next year. I need to get my kids taken care of after I pass away. What should I do?
A. It appears that you want their father to take care of them, but you cannot find him, or know of his whereabouts. If this man never paid child support, you are wasting your time chasing him down. Your children are better off with a person of your own choosing. Make sure to prepare a will with a guardianship provision, naming a trusted individual to care for your minor children. It could be your sister, your mother or a friend. If you have no one in mind, and you die before your children are 18, then Court will probably send them to a foster home.
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 or fax them to (661)825-8880.
Q. I live in one of the houses below the large development of new houses taking place at the corner of Curry and Highline. Last winter was one of the wettest on record, as everyone knows. As a result, because there was nothing but uncovered dirt in that development, mud ran down the streets below, covered our lawn and destroyed all the landscaping in our front yard. Just a few days ago, we had a lot of rain and again the mud ran down the street. It cost us substantial amount of money to replace the landscaping and a lot of hard work to make our front yard attractive again. How can we avoid a repeat of last year?
A. I hope you contacted the developer and made a complaint about the mud damaging your front yard. In fact, you should have given the developer an invoice for the cost of replacing your landscaping, as well as whatever you paid for the hired labor to clean up your front yard. If you made no contact, the developer will never know what hardship he caused the neighborhood downstream. In fact, this should have been a collective effort on the part of the entire neighborhood to invoice that developer for the problems he caused. Had that been done, the developer would have been on notice and would have ensured that a dam would have been built to protect that neighborhood. If there are still mounds of uncovered dirt above you, make sure to contact the developer to notify him of your past problems and that you do not want this to happen again, otherwise he will be liable for subsequent damages.
Q. I’ve had two children with my boyfriend in a past life, who has long ago left town. My children are now respectively 15 and 11. I was just diagnosed with advanced lung cancer and I don’t think I am going to make it past next year. I need to get my kids taken care of after I pass away. What should I do?
A. It appears that you want their father to take care of them, but you cannot find him, or know of his whereabouts. If this man never paid child support, you are wasting your time chasing him down. Your children are better off with a person of your own choosing. Make sure to prepare a will with a guardianship provision, naming a trusted individual to care for your minor children. It could be your sister, your mother or a friend. If you have no one in mind, and you die before your children are 18, then Court will probably send them to a foster home.
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