Title: May 9, 2007
Q. What’s the difference between a living will and a living trust?
A. A living will is a document that spells out last wishes as far as should anything happen that makes one unable to make health care decisions, another can make such decisions in his/her place. The case of Terry Schiavo, the woman whose life was in limbo for some 15 or 20 years while her husband wanted her to be let die in peace and her parents wanted to keep her alive made it all the way to the Supreme Court. I believe she had an accident that left her in a coma. When it happened, she was a young woman. Most people in their twenties do not have a living will, because they do not think of death at their age. Unfortunately, life happens and so does death and life in between. On the other hand, a Living Trust is a document that is set up by a trustor who transfers his real estate and personal estate into an entity called “A revocable Living Trust”. Revocable means it can be changed during the life of the trustor. The property transferred into a Living Trust is managed by a trustee, who can also be the trustor. The trustor must name a successor trustee if he is also acting as the original trustee. At the trustor’s death, all the property that was transferred into the living trust then goes to the beneficiaries. It is the successor trustee’s job to make the transfer smooth. By setting up a Living Trust, the estate of the deceased need not go through Probate, a sometime very long court process that can be very costly. Depending on the complexity of the living trust, it can cost anywhere from $1500 to $5000, or more. The initial cost may appear to be high, but Probate Court cost a lot more.
Q. The winds that we experienced in Tehachapi in the past couple of weeks have damaged a large tree owned by my neighbor. A big branch broke and ended up on the roof of my garage, causing a gash that is going to cost several thousands of dollars to fix. I have not seen my neighbor in at least a month. I believe he is just a part-time resident here. What should I do?
A. You need to contact your homeowners’ insurance company. They will take care of the subrogation, in other words, they will contact the owner next door and ascertain what insurance he has and get reimbursed by that insurance. You must not wait until you have additional damage, otherwise you may have to pay for the additional damage yourself.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Monday, March 23, 2009
Legal Eaze #67 Marital Settlement Agreement/Power of Attorney
Title: April 25, 2007
Q. I got a divorce a couple of years ago. My ex-husband and I had a marital settlement agreement. We each kept a car, and each one of us had the responsibility to pay the debt on the vehicle that we kept. My ex-husband kept the truck, and I kept the car. Then he lost his job, failed to make the monthly payments on the truck. Of course, it was repossessed by the bank. The bank sold the truck for less than what was owed on it, and came after me for the balance. Can the bank do that?
A. Yes, it can. Your marital settlement agreement should have had a clause that said as follows: “if one fails to pay the debt owed on the vehicle, and the other party is sued for the balance, the party who was responsible for the debt shall indemnify the other for any expenses incurred as a result of a lawsuit against the other party”. That means that your ex-husband shall repay you for any expenses you incurred as a result of his failure to pay for the truck. However, if he is out of work, it may be difficult for you to obtain any money out of him. You will have to go back to Court and have the marital settlement agreement enforced against him under CCP 664.6 for material default.
Q. My mother-in-law has dementia. She owns a house and a couple of commercial properties that need to be managed properly. She can no longer take care of business. She does not have a power of attorney for financial affairs. My husband, her son, is willing to step up to the plate, but cannot do anything because no one accepts his authority to do anything. Is it too late for her to sign a power of attorney?
A. Yes, it is. She no longer has the mental capacity to sign a power of Attorney over to your son. If she was to sign one now, with her dementia, someone could challenge your son’s authority as having imposed his will on his mother, and used coercion to make her sign the power of attorney. At this point, the only thing he can do is to file a Petition for Conservatorship over her, with him as the Petitioner. However, he needs to make sure to have a recent physician evaluation as to the true mental condition of his mother, and that needs to be filed with the Petition for Conservatorship.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I got a divorce a couple of years ago. My ex-husband and I had a marital settlement agreement. We each kept a car, and each one of us had the responsibility to pay the debt on the vehicle that we kept. My ex-husband kept the truck, and I kept the car. Then he lost his job, failed to make the monthly payments on the truck. Of course, it was repossessed by the bank. The bank sold the truck for less than what was owed on it, and came after me for the balance. Can the bank do that?
A. Yes, it can. Your marital settlement agreement should have had a clause that said as follows: “if one fails to pay the debt owed on the vehicle, and the other party is sued for the balance, the party who was responsible for the debt shall indemnify the other for any expenses incurred as a result of a lawsuit against the other party”. That means that your ex-husband shall repay you for any expenses you incurred as a result of his failure to pay for the truck. However, if he is out of work, it may be difficult for you to obtain any money out of him. You will have to go back to Court and have the marital settlement agreement enforced against him under CCP 664.6 for material default.
Q. My mother-in-law has dementia. She owns a house and a couple of commercial properties that need to be managed properly. She can no longer take care of business. She does not have a power of attorney for financial affairs. My husband, her son, is willing to step up to the plate, but cannot do anything because no one accepts his authority to do anything. Is it too late for her to sign a power of attorney?
A. Yes, it is. She no longer has the mental capacity to sign a power of Attorney over to your son. If she was to sign one now, with her dementia, someone could challenge your son’s authority as having imposed his will on his mother, and used coercion to make her sign the power of attorney. At this point, the only thing he can do is to file a Petition for Conservatorship over her, with him as the Petitioner. However, he needs to make sure to have a recent physician evaluation as to the true mental condition of his mother, and that needs to be filed with the Petition for Conservatorship.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #66 Stolen Money and Identity/Poisoned Pet Food
Title: April 11, 2007
Q. My mother lives with us. She has a touch of Alzheimer’s, but she is still active and still takes care of her financial obligations. My daughter, who is 16 years old, somehow got a hold of my mother’s credit card and charged a variety of items, such as jewelry, makeup and clothing on it. I don’t know what to do. Please advise.
A. First, I would make sure that your daughter gives the credit card back to its owner, advise your mother of the situation and that she needs to keep her credit card(s) away from your daughter. Second, you need to have a serious talk with your daughter. She needs to realize that she stole not only money from her grandmother, but also her identity and needs to make up for it. You can take away her weekly or monthly allowance until all the charges she put on the credit card are paid for. Or she needs to get a part-time job and earn some money to pay her grandmother back. To call the police and get her charged with identity theft may be counterproductive, Your daughter committed a crime that could have grave consequences for your daughter’s future if she was to repeat her actions.
Q. I believe my cats suffer from kidney failure because I have been feeding them canned food made by the company that sold poisoned pet food. I really don’t have the money to take them to the veterinarian and I am devastated and scared to lose my beloved pets. They have both been vomiting, they refuse to eat, they sleep most of the time, they drink a lot of water and urinate more than usual. What do you advise I do?
A. Ask the veterinarian to give you credit until you can pay for the care of your pets, or borrow the money, otherwise you may very well lose your pets. Menu Foods, the Canadian company that sold the poisoned food will be sued through a class action soon. It bought wheat from China, where the use of rat poison is not forbidden like it is in the USA to kill rats in their wheat fields. The wheat gluten, a source of protein, is added to canned pet food to thicken the sauce. Many pets have died or have suffered from kidney failure. I myself have fed some of the poisoned food to my dogs, noticed their loss of appetite for a few days, saw my female vomit a couple of times, but fortunately the dogs recovered quickly. Your cats need urgent medical treatment. Menu Foods will pay for the care of your cats, however you will more than likely have to give up your right to take part in the class action should you use their help in caring for your animals.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. My mother lives with us. She has a touch of Alzheimer’s, but she is still active and still takes care of her financial obligations. My daughter, who is 16 years old, somehow got a hold of my mother’s credit card and charged a variety of items, such as jewelry, makeup and clothing on it. I don’t know what to do. Please advise.
A. First, I would make sure that your daughter gives the credit card back to its owner, advise your mother of the situation and that she needs to keep her credit card(s) away from your daughter. Second, you need to have a serious talk with your daughter. She needs to realize that she stole not only money from her grandmother, but also her identity and needs to make up for it. You can take away her weekly or monthly allowance until all the charges she put on the credit card are paid for. Or she needs to get a part-time job and earn some money to pay her grandmother back. To call the police and get her charged with identity theft may be counterproductive, Your daughter committed a crime that could have grave consequences for your daughter’s future if she was to repeat her actions.
Q. I believe my cats suffer from kidney failure because I have been feeding them canned food made by the company that sold poisoned pet food. I really don’t have the money to take them to the veterinarian and I am devastated and scared to lose my beloved pets. They have both been vomiting, they refuse to eat, they sleep most of the time, they drink a lot of water and urinate more than usual. What do you advise I do?
A. Ask the veterinarian to give you credit until you can pay for the care of your pets, or borrow the money, otherwise you may very well lose your pets. Menu Foods, the Canadian company that sold the poisoned food will be sued through a class action soon. It bought wheat from China, where the use of rat poison is not forbidden like it is in the USA to kill rats in their wheat fields. The wheat gluten, a source of protein, is added to canned pet food to thicken the sauce. Many pets have died or have suffered from kidney failure. I myself have fed some of the poisoned food to my dogs, noticed their loss of appetite for a few days, saw my female vomit a couple of times, but fortunately the dogs recovered quickly. Your cats need urgent medical treatment. Menu Foods will pay for the care of your cats, however you will more than likely have to give up your right to take part in the class action should you use their help in caring for your animals.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #65 Snowed In Driveway/Firefighter's Rule
Title: March 14, 2007
Q. I live in one of the private communities around Tehachapi. One thing that really irritates me is that the snow removal truck used by the community where I live always pushes the snow on both sides of the street, creating an enormous mountain of snow directly in front of our driveway. This snow is really packed because it has been dragged several feet by the snow scoop in front of the truck and difficult to shovel away. What is worse is that sometimes we have to park the cars in the street because we are unable to get onto our property, then the cars get buried in the snow. Is there anything we can do to prevent that from happening?
A. Welcome to snow country! Do you realize that your problem is the same problem every family living in areas that get snow in the winter has to face every year? Sometimes, there is so much snow that it must be pushed aside for the greater good. Streets must be rid of snow so that cars can get through. Obviously it would be difficult for city or community workers operating snow ploughs to clean every private driveway and would never be able to complete their task of cleaning the streets. It is more time efficient for each family to be responsible for the clearing of its own patch of driveway rather than impose that duty to the city or community. In this instance, the discomfort of a few does relieve total closure of the community roads.
Q. Last year, I worked for a veterinary clinic in the Antelope Valley. About 4 months ago, I was bit by a pit-bull while trying to clean up its cage. The wound was deep and is still very painful. Can I sue the owner of that dog?
A. No you cannot. There is an exception to dog bite laws called the “firefighter’s rule” which is a specific application of the doctrine of assumption of risk. Under the firefighter’s rule, persons whose work necessarily exposes them to certain types of risks created by third parties may not sue those third parties when those risks are realized and lead to personal injury. The idea is that a firefighter, for example, should not be able to sue for injuries resulting from a fire when fire is the precise danger the firefighter is employed to confront. By the same token, a veterinarian or kennel worker ordinarily cannot sue for animal bites since vets and kennel workers are paid precisely because of their expertise in handling animals and their willingness to be exposed to those risks.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I live in one of the private communities around Tehachapi. One thing that really irritates me is that the snow removal truck used by the community where I live always pushes the snow on both sides of the street, creating an enormous mountain of snow directly in front of our driveway. This snow is really packed because it has been dragged several feet by the snow scoop in front of the truck and difficult to shovel away. What is worse is that sometimes we have to park the cars in the street because we are unable to get onto our property, then the cars get buried in the snow. Is there anything we can do to prevent that from happening?
A. Welcome to snow country! Do you realize that your problem is the same problem every family living in areas that get snow in the winter has to face every year? Sometimes, there is so much snow that it must be pushed aside for the greater good. Streets must be rid of snow so that cars can get through. Obviously it would be difficult for city or community workers operating snow ploughs to clean every private driveway and would never be able to complete their task of cleaning the streets. It is more time efficient for each family to be responsible for the clearing of its own patch of driveway rather than impose that duty to the city or community. In this instance, the discomfort of a few does relieve total closure of the community roads.
Q. Last year, I worked for a veterinary clinic in the Antelope Valley. About 4 months ago, I was bit by a pit-bull while trying to clean up its cage. The wound was deep and is still very painful. Can I sue the owner of that dog?
A. No you cannot. There is an exception to dog bite laws called the “firefighter’s rule” which is a specific application of the doctrine of assumption of risk. Under the firefighter’s rule, persons whose work necessarily exposes them to certain types of risks created by third parties may not sue those third parties when those risks are realized and lead to personal injury. The idea is that a firefighter, for example, should not be able to sue for injuries resulting from a fire when fire is the precise danger the firefighter is employed to confront. By the same token, a veterinarian or kennel worker ordinarily cannot sue for animal bites since vets and kennel workers are paid precisely because of their expertise in handling animals and their willingness to be exposed to those risks.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #64 Conservatorship/Bankrupt Store Claim
Title: February 21, 2007
Q. My son is 38 years old. He is schizophrenic and manic-depressive. He cannot keep a job, and gets into trouble with the law all the time. He receives disability checks, but spends the money within 2 or 3 days after receiving it. The rest of the month, he is broke. He spends his money on beer, cigarettes and buys stuff for his “friends”. His friends are freeloaders who take advantage of his disability. He comes to my house just about every day to get fed, take a shower and get his clothes washed, but otherwise, I don’t know where he sleeps. He refuses to tell me. I tried to follow him but was unsuccessful. What should I do to help him?
A. It appears that your son may need a conservator. As his mother, you can file a Petition for Conservatorship over his person and his estate with the Superior Court. The Court will appoint an investigator (at your cost) to find out whether or not a conservatorship is the right way to go. If you are appointed his conservator (for the person and the estate), you will have the power to make decisions about how his money is spent, and where he will live, among other responsibilities. His care and well-being will be in your hands. A temporary Conservatorship might be granted by the Court (you have to file a Petition for Temporary Conservatorship at the same time as the Petition for General Conservatorship) until the Court investigator has completed a report. This process would be simplified if your son is willing to cooperate and agrees with your conservatorship over him.
Q. I purchased a diamond ring for my wife to give to her during the holidays. I bought it from a jewelry store that since went bankrupt. I paid several hundreds of dollars for the ring. My wife had the ring appraised and found out that the stone is a cubic zirconium, a total fake. I am furious at myself for having been fooled. My wife is furious at me for giving her a fake diamond ring. What do you suggest I do?
A. Since the company has filed for bankruptcy, you need to find out where the bankruptcy case was filed and file a claim with the Bankruptcy Court. If the store gave you a certificate of authenticity with the diamond ring, that can be used as proof that you overpaid for the CZ ring. It might be too late for you to file a claim, depending on how long ago the store filed bankruptcy, but it does not hurt to try.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. My son is 38 years old. He is schizophrenic and manic-depressive. He cannot keep a job, and gets into trouble with the law all the time. He receives disability checks, but spends the money within 2 or 3 days after receiving it. The rest of the month, he is broke. He spends his money on beer, cigarettes and buys stuff for his “friends”. His friends are freeloaders who take advantage of his disability. He comes to my house just about every day to get fed, take a shower and get his clothes washed, but otherwise, I don’t know where he sleeps. He refuses to tell me. I tried to follow him but was unsuccessful. What should I do to help him?
A. It appears that your son may need a conservator. As his mother, you can file a Petition for Conservatorship over his person and his estate with the Superior Court. The Court will appoint an investigator (at your cost) to find out whether or not a conservatorship is the right way to go. If you are appointed his conservator (for the person and the estate), you will have the power to make decisions about how his money is spent, and where he will live, among other responsibilities. His care and well-being will be in your hands. A temporary Conservatorship might be granted by the Court (you have to file a Petition for Temporary Conservatorship at the same time as the Petition for General Conservatorship) until the Court investigator has completed a report. This process would be simplified if your son is willing to cooperate and agrees with your conservatorship over him.
Q. I purchased a diamond ring for my wife to give to her during the holidays. I bought it from a jewelry store that since went bankrupt. I paid several hundreds of dollars for the ring. My wife had the ring appraised and found out that the stone is a cubic zirconium, a total fake. I am furious at myself for having been fooled. My wife is furious at me for giving her a fake diamond ring. What do you suggest I do?
A. Since the company has filed for bankruptcy, you need to find out where the bankruptcy case was filed and file a claim with the Bankruptcy Court. If the store gave you a certificate of authenticity with the diamond ring, that can be used as proof that you overpaid for the CZ ring. It might be too late for you to file a claim, depending on how long ago the store filed bankruptcy, but it does not hurt to try.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #63 Destructive Child/Prepaid Legal Plans
Title: February 7, 2007
Q. I am a single mother of two. My son is 12 years old and my daughter, 7 years old. Their father has been in prison for the last 5 years. My son is very big for his age and it has been reported to me that he is a bully at school. I searched his room on several occasions, and he appears to have a growing collection of items that I believe he took by force from other kids, such as backpacks, fancy pens, journals, jackets and shirts, etc. I also caught him once burning the tail of our family dog. I just do not know what to do to stop my son from this destructive behavior and I am terribly worried that he will eventually hurt another kid and I will be sued for his actions. Please help!
A. I certainly cannot be the first professional that you have turned to for help! An attorney may not be the best person to give you advice in this situation. Drastic measures need to be taken very quickly before your son turns into a habitual criminal. Either he needs to be scared straight, or be in therapy, or both. He is showing all the signs of growing up to be the worst kind of human being possible. I am sure there are counselors available at his school. I would suggest consulting a psychologist who could provide you with guidance. Make sure to question your daughter about her brother’s behavior towards her. If your son is a bully at school, he may also be a bully at home, harming your daughter. In the meantime, I believe it would be a good idea for you to place the family dog with another family. I would hate for both your daughter and your dog to be injured by your son. You have a very serious problem on your hands and I am afraid that you have little influence or control over the dangerous propensities shown by your son. Please get some professional help as soon as possible.
Q. Is there such a thing as “legal insurance” just like “health insurance”? Can you please tell me where to find it?
A. Yes there is. There are several Prepaid legal plans available on the market. However, I cannot advertise any one of them, so I would suggest you go on the Internet, using your favorite search engine and input the words “Prepaid Legal Plans”. Several plans will come up. Contact each one and find out the requirements for joining the Plan. Good luck!
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I am a single mother of two. My son is 12 years old and my daughter, 7 years old. Their father has been in prison for the last 5 years. My son is very big for his age and it has been reported to me that he is a bully at school. I searched his room on several occasions, and he appears to have a growing collection of items that I believe he took by force from other kids, such as backpacks, fancy pens, journals, jackets and shirts, etc. I also caught him once burning the tail of our family dog. I just do not know what to do to stop my son from this destructive behavior and I am terribly worried that he will eventually hurt another kid and I will be sued for his actions. Please help!
A. I certainly cannot be the first professional that you have turned to for help! An attorney may not be the best person to give you advice in this situation. Drastic measures need to be taken very quickly before your son turns into a habitual criminal. Either he needs to be scared straight, or be in therapy, or both. He is showing all the signs of growing up to be the worst kind of human being possible. I am sure there are counselors available at his school. I would suggest consulting a psychologist who could provide you with guidance. Make sure to question your daughter about her brother’s behavior towards her. If your son is a bully at school, he may also be a bully at home, harming your daughter. In the meantime, I believe it would be a good idea for you to place the family dog with another family. I would hate for both your daughter and your dog to be injured by your son. You have a very serious problem on your hands and I am afraid that you have little influence or control over the dangerous propensities shown by your son. Please get some professional help as soon as possible.
Q. Is there such a thing as “legal insurance” just like “health insurance”? Can you please tell me where to find it?
A. Yes there is. There are several Prepaid legal plans available on the market. However, I cannot advertise any one of them, so I would suggest you go on the Internet, using your favorite search engine and input the words “Prepaid Legal Plans”. Several plans will come up. Contact each one and find out the requirements for joining the Plan. Good luck!
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #62 Insurance Damages/Extramarital Child Support
Title: January 17, 2007
Q. I had a car accident and two persons died as a result of the accident. I was at fault. My insurance was insufficient to pay for all the damages caused in that accident. Can my assets be taken away over and above what my insurance paid to the estates of the two deceased?
A. Yes, unless your insurance company settled the lawsuit for the total insurance amount paid to the deceased’s estates. For example, if the damages sustained by the Plaintiffs were $5 million, and the Plaintiffs won $5 million at trial but you only had insurance for $2 million, then $3 million remain unpaid and your assets can be taken to cover the unpaid amount, if you have assets worth that much. Future assets you might obtain may also may be taken away as you accumulate them. Interest also accumulates at 10% per annum on the unpaid balance if the full amount of the judgment is not paid swiftly.
Q. If I have an extramarital affair and have a child issued from that affair, but my husband raises the child as his own and is named as father on the child’s birth certificate, can I later get child support from the true father of the child after I get a divorce from my husband? Can I have the birth certificate changed to reflect the name of the true father and get him involved with his child?
A. After you get a divorce, you can get anyone you want involved with your child, but you need authorization from your now ex-husband to remove his name from the child’s birth certificate. Unless you do that, or litigate the issue, it is unlikely that you will ever be able to pursue the other man for child support. If you have a child out of wedlock, but are married at the time, your husband will be considered the father of your child, unless you let it be known that he is not, and he insists on a DNA test to prove he is not the true father of your child. I realize these incidents occur all the time, but it is not very ethical for you to let your husband believe for years that he is the father of a child, support that child for all that time and then try to get child support from someone else. At the very least, it seems opportunistic and calculating to use the child in that manner.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I had a car accident and two persons died as a result of the accident. I was at fault. My insurance was insufficient to pay for all the damages caused in that accident. Can my assets be taken away over and above what my insurance paid to the estates of the two deceased?
A. Yes, unless your insurance company settled the lawsuit for the total insurance amount paid to the deceased’s estates. For example, if the damages sustained by the Plaintiffs were $5 million, and the Plaintiffs won $5 million at trial but you only had insurance for $2 million, then $3 million remain unpaid and your assets can be taken to cover the unpaid amount, if you have assets worth that much. Future assets you might obtain may also may be taken away as you accumulate them. Interest also accumulates at 10% per annum on the unpaid balance if the full amount of the judgment is not paid swiftly.
Q. If I have an extramarital affair and have a child issued from that affair, but my husband raises the child as his own and is named as father on the child’s birth certificate, can I later get child support from the true father of the child after I get a divorce from my husband? Can I have the birth certificate changed to reflect the name of the true father and get him involved with his child?
A. After you get a divorce, you can get anyone you want involved with your child, but you need authorization from your now ex-husband to remove his name from the child’s birth certificate. Unless you do that, or litigate the issue, it is unlikely that you will ever be able to pursue the other man for child support. If you have a child out of wedlock, but are married at the time, your husband will be considered the father of your child, unless you let it be known that he is not, and he insists on a DNA test to prove he is not the true father of your child. I realize these incidents occur all the time, but it is not very ethical for you to let your husband believe for years that he is the father of a child, support that child for all that time and then try to get child support from someone else. At the very least, it seems opportunistic and calculating to use the child in that manner.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #61 Fault Of Icy Turn Accident/Sex Offender Neighbor
Title: January 3, 2007
Q. I was driving on Highline and needed to turn left at Steuber. I had my left signal on, but I hit a patch of black ice and my car began skidding. I realized that I needed to pump the brakes until my car was fully stopped. I went a few feet past Steuber, but was able to finally stop to make my left turn. The car behind me hit my car as I was trying to maneuver my left turn. Who is at fault?
A. More than likely, the person who was driving the car behind you. He/she should not have been so close to you as to hit your car, especially if you had your left signal on. He/she knew that you were making a left turn and should not have been driving so fast as to defeat what you were trying to do. However, it is possible that both your insurance companies may ascertain that your maneuver was a significant contributing factor to the accident. You also needed to correctly assess the slippery conditions of the road and allow for potential problems, thereby lowering your speed to enable you to turn left in a safe manner, black ice or not.
Q. I found out that I live next door to a man who was found guilty of being a child molester. His name was obtained through Megan’s law/National Sex Offenders Registry. I do not want my children to be targeted by this man and I am afraid to continue living next to him. What can I do?
A. Short of having a petition signed by your entire neighborhood requesting that this man be moved to another location and for legal reasons that must be sufficient to make him move, there is not much you can do. Obviously, this man has to live somewhere, and it is usually next to someone else. Unless he starts acting suspiciously and reverts back to his old habits, you will have to accept the reality that he has the right to live anywhere he wants as long as he does not prey on children. If you simply cannot accept this fact, you need to move elsewhere. I realize that a legal system that allows someone to get hurt before a suspect is arrested and tried may not seem to be fair or just, however that is how such a system of “innocence is presumed until proven guilty” works.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I was driving on Highline and needed to turn left at Steuber. I had my left signal on, but I hit a patch of black ice and my car began skidding. I realized that I needed to pump the brakes until my car was fully stopped. I went a few feet past Steuber, but was able to finally stop to make my left turn. The car behind me hit my car as I was trying to maneuver my left turn. Who is at fault?
A. More than likely, the person who was driving the car behind you. He/she should not have been so close to you as to hit your car, especially if you had your left signal on. He/she knew that you were making a left turn and should not have been driving so fast as to defeat what you were trying to do. However, it is possible that both your insurance companies may ascertain that your maneuver was a significant contributing factor to the accident. You also needed to correctly assess the slippery conditions of the road and allow for potential problems, thereby lowering your speed to enable you to turn left in a safe manner, black ice or not.
Q. I found out that I live next door to a man who was found guilty of being a child molester. His name was obtained through Megan’s law/National Sex Offenders Registry. I do not want my children to be targeted by this man and I am afraid to continue living next to him. What can I do?
A. Short of having a petition signed by your entire neighborhood requesting that this man be moved to another location and for legal reasons that must be sufficient to make him move, there is not much you can do. Obviously, this man has to live somewhere, and it is usually next to someone else. Unless he starts acting suspiciously and reverts back to his old habits, you will have to accept the reality that he has the right to live anywhere he wants as long as he does not prey on children. If you simply cannot accept this fact, you need to move elsewhere. I realize that a legal system that allows someone to get hurt before a suspect is arrested and tried may not seem to be fair or just, however that is how such a system of “innocence is presumed until proven guilty” works.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #60 Apartment Requirements/Checking Account Levy
Title: December 6, 2006
Q. Can you please give me the definition of an apartment and the building where it is located “fit for human living”?
A. Under California law, that typically includes:
1. Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
2. Plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system.
3. Gas facilities in good working order.
4. Heating facilities in good working order.
5. An electric system, including lighting, wiring and equipment, in good working order.
6. Clean and sanitary buildings, grounds, and appurtenances (for example a garden or a detached garage), free from debris, filth, rubbish, garbage, rodents and vermin.
7. Adequate trash receptacles in good repair.
8. Floors, stairways, and railings in good repair.
In addition to these requirements, each rental unit must have all of the following: a working toilet, wash basin, and bathtub or shower. The toilet and bathtub or shower must be in a room that is ventilated and allows privacy. The kitchen must have a sink. There must be natural lighting in every room through windows or skylights. Windows in each room must be able to open at least halfway for ventilation, unless a fan provides mechanical ventilation. Safe fire or emergency exits leading to a street or hallway. Stairs, hallways and exits must be kept litter-free. Storage areas, garages, and basements must be kept free of combustible materials. Operable deadbolt locks on the main entry doors of rental units, and operable locking or security devices on windows. Working smoke detectors in all units of multi-unit buildings, such as duplexes and apartment complexes. Apartment complexes also must have smoke detectors in common stairwells.
Q. Can a creditor levy your checking accounts and how much notice do they have to give you?
A. The first notice you may get is from the bank stating that your entire account is frozen, and unless you can get to the bank immediately or fast enough, the bank will release the money in the account to the creditor. The creditor cannot garnish 25% of your wages and levy against the full amount of your bank account at the same time. You must object if that happens. You may be able to get the Sheriff to cancel the levy without a court order. Any bank accounts the creditor knows about are at risk.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. Can you please give me the definition of an apartment and the building where it is located “fit for human living”?
A. Under California law, that typically includes:
1. Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
2. Plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system.
3. Gas facilities in good working order.
4. Heating facilities in good working order.
5. An electric system, including lighting, wiring and equipment, in good working order.
6. Clean and sanitary buildings, grounds, and appurtenances (for example a garden or a detached garage), free from debris, filth, rubbish, garbage, rodents and vermin.
7. Adequate trash receptacles in good repair.
8. Floors, stairways, and railings in good repair.
In addition to these requirements, each rental unit must have all of the following: a working toilet, wash basin, and bathtub or shower. The toilet and bathtub or shower must be in a room that is ventilated and allows privacy. The kitchen must have a sink. There must be natural lighting in every room through windows or skylights. Windows in each room must be able to open at least halfway for ventilation, unless a fan provides mechanical ventilation. Safe fire or emergency exits leading to a street or hallway. Stairs, hallways and exits must be kept litter-free. Storage areas, garages, and basements must be kept free of combustible materials. Operable deadbolt locks on the main entry doors of rental units, and operable locking or security devices on windows. Working smoke detectors in all units of multi-unit buildings, such as duplexes and apartment complexes. Apartment complexes also must have smoke detectors in common stairwells.
Q. Can a creditor levy your checking accounts and how much notice do they have to give you?
A. The first notice you may get is from the bank stating that your entire account is frozen, and unless you can get to the bank immediately or fast enough, the bank will release the money in the account to the creditor. The creditor cannot garnish 25% of your wages and levy against the full amount of your bank account at the same time. You must object if that happens. You may be able to get the Sheriff to cancel the levy without a court order. Any bank accounts the creditor knows about are at risk.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #59 Damaged Driveway/Pet Bite/Trespassing
Title: November 22, 2006
Q. I hired someone to put decorative curbs at my house. He did the mixing, including a dye to the cement right on my driveway, which is now stained. When I complained to him about it, he first appeared to be responsive. He promised to come and clean it up, but he never showed up. I feel a lawsuit is in order, but he only has a cell phone number on his business card, and when I call him, he acts like he cannot hear me. That is always the end of the conversation. I do not have a physical address on him. What can I do?
A. I suggest you hire a private investigator to get an address behind the cell phone number you already have. You can include the cost of the private investigator as part of your damages in your lawsuit. If the curbs look the way you were expecting them to look, you damages would only be for the stained driveway. Get an estimate from another contractor and find out how much it would cost to clean the driveway.
Q. My son and his friend were playing in my backyard, and my dog nipped the friend. The bite broke the skin, but no stitches were required. What do I do now?
A. Pay for the doctor to look the wound over and to take care of it. As I am sure you know, you are liable for any damage inflicted by your dog to any guests coming onto your property. Be very apologetic with the child’s parents and offer to take care of any expenses associated with the incident. .
Q. We own a 12-acre piece of land with a cabin that we use on the weekend. It is entirely fenced and has “no trespassing” signs around it. Yet, people come and ride their dirt bikes on our land. We have called the police, but the motorcyclists are usually gone by the time the police get there. Howe can we stop them?
A. You can try to obtain the license number off the motorcycles in order to obtain the names and addresses of the offenders, and sue them for trespassing. If that does not work, and you are simply not there when the trespassing occurs, you can place spikes in strategic places on your land. A few flat tires later, they might learn their lesson. Of course, if one of them gets hurt when falling off his dirt bike because he has a flat tire, you might get sued for his personal injury. However since he is trespassing on your land, you would probably prevail.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I hired someone to put decorative curbs at my house. He did the mixing, including a dye to the cement right on my driveway, which is now stained. When I complained to him about it, he first appeared to be responsive. He promised to come and clean it up, but he never showed up. I feel a lawsuit is in order, but he only has a cell phone number on his business card, and when I call him, he acts like he cannot hear me. That is always the end of the conversation. I do not have a physical address on him. What can I do?
A. I suggest you hire a private investigator to get an address behind the cell phone number you already have. You can include the cost of the private investigator as part of your damages in your lawsuit. If the curbs look the way you were expecting them to look, you damages would only be for the stained driveway. Get an estimate from another contractor and find out how much it would cost to clean the driveway.
Q. My son and his friend were playing in my backyard, and my dog nipped the friend. The bite broke the skin, but no stitches were required. What do I do now?
A. Pay for the doctor to look the wound over and to take care of it. As I am sure you know, you are liable for any damage inflicted by your dog to any guests coming onto your property. Be very apologetic with the child’s parents and offer to take care of any expenses associated with the incident. .
Q. We own a 12-acre piece of land with a cabin that we use on the weekend. It is entirely fenced and has “no trespassing” signs around it. Yet, people come and ride their dirt bikes on our land. We have called the police, but the motorcyclists are usually gone by the time the police get there. Howe can we stop them?
A. You can try to obtain the license number off the motorcycles in order to obtain the names and addresses of the offenders, and sue them for trespassing. If that does not work, and you are simply not there when the trespassing occurs, you can place spikes in strategic places on your land. A few flat tires later, they might learn their lesson. Of course, if one of them gets hurt when falling off his dirt bike because he has a flat tire, you might get sued for his personal injury. However since he is trespassing on your land, you would probably prevail.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #58 Return Policies/Noise Nuisance
Title: November 1, 2006
Q. I purchased a pant outfit from a catalog. When I received it, I tried it on and noticed that the top was discolored as though it had been left in the sun for a long time. The color of the top did not match the color of the pants. I returned the outfit the next day via UPS, the same way I received it. I also filled out the return form and mentioned that the top was discolored and not up to the standard I was expecting from the catalog house. I later received an invoice from the company notifying me that I’m the one who damaged the outfit and I was expected to pay for the returned item. I am outraged. What do I do?
A. Make sure you read the company’s return policy. If it says you can return the merchandise if you are not satisfied for any reason, then you will prevail. Even if it does not say you can return it for any reason, you will still prevail. I would write to the customer service department a long letter explaining that you do not appreciate getting called a liar, and never buy anything from this company again. If you keep receiving an invoice, make a complaint to the Attorney General of the state where the catalog company is located, as well as the Better Business Bureau. If the company insists on billing you, let them know you will not pay and will put an energetic defense to any lawsuit filed against.
Q. My neighbor’s kid is learning how to play the drums. He spends every evening and weekend banging on a drum set in their garage which is about 20 feet from my bedroom. If it continues much longer, I will become either deaf or crazy from the noise. I have asked my neighbors to have pity on me and to panel their garage with some sort of sound barrier but to no avail. What can I do?
A. You have the right to quiet enjoyment of your property and the noise coming from next door is a private nuisance. If your neighbors are unreasonable, you should consider filing a lawsuit for nuisance. Maybe you should approach them again and let them know that you are thinking about filing a lawsuit if they do nothing to protect your sanity or your hearing. You need to calmly approach them and explain how serious the nuisance is. If you have other neighbors who are disturbed by the noise, you should pair up with them in filing your lawsuit. . .
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I purchased a pant outfit from a catalog. When I received it, I tried it on and noticed that the top was discolored as though it had been left in the sun for a long time. The color of the top did not match the color of the pants. I returned the outfit the next day via UPS, the same way I received it. I also filled out the return form and mentioned that the top was discolored and not up to the standard I was expecting from the catalog house. I later received an invoice from the company notifying me that I’m the one who damaged the outfit and I was expected to pay for the returned item. I am outraged. What do I do?
A. Make sure you read the company’s return policy. If it says you can return the merchandise if you are not satisfied for any reason, then you will prevail. Even if it does not say you can return it for any reason, you will still prevail. I would write to the customer service department a long letter explaining that you do not appreciate getting called a liar, and never buy anything from this company again. If you keep receiving an invoice, make a complaint to the Attorney General of the state where the catalog company is located, as well as the Better Business Bureau. If the company insists on billing you, let them know you will not pay and will put an energetic defense to any lawsuit filed against.
Q. My neighbor’s kid is learning how to play the drums. He spends every evening and weekend banging on a drum set in their garage which is about 20 feet from my bedroom. If it continues much longer, I will become either deaf or crazy from the noise. I have asked my neighbors to have pity on me and to panel their garage with some sort of sound barrier but to no avail. What can I do?
A. You have the right to quiet enjoyment of your property and the noise coming from next door is a private nuisance. If your neighbors are unreasonable, you should consider filing a lawsuit for nuisance. Maybe you should approach them again and let them know that you are thinking about filing a lawsuit if they do nothing to protect your sanity or your hearing. You need to calmly approach them and explain how serious the nuisance is. If you have other neighbors who are disturbed by the noise, you should pair up with them in filing your lawsuit. . .
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #57 Help Avoid Consumer Debt - Make A Budget
HELP AVOID CONSUMER DEBT - MAKE A BUDGET (Date: 10/13/06)
By: Maxine de Villefranche
As an attorney doing family law, I see the state of total disarray in many people's personal finances during the initial consultation. A common problem is that these people have no idea what they spend each month and don’t realize they’re often spending more than they earn. Many of them have numerous credit cards, and many people filing for divorce, among others, have $50,000 or more in credit card debts.
When you are sick, you pay careful attention to the medicine that the doctor prescribes. When you’re on a diet, you pay attention to the food you eat and weigh yourself every day. Yet most of us don't track how much we spend each month. You may know how much you spend on fixed bills like rent, but chances are that you don’t know to the nearest $100 how much you spend in total.
A budget is essential to taking control of your finances. Maybe there is a place you can tighten your belt. Maybe there isn't. How do you know where to cut back if you don't even know what you're spending?
Try this for one week (or better yet, for a month): you don't need to track every penny, but why not track every dollar you spend during the day? Save your receipts and jot down your daily expenditures. Keep a running tab so you know your month-to-date spending every day. When given a choice, use your debit card, not cash. Keep your debit receipts to make tracking easier and to make your spending more visible.
The biggest enemy of spending control is the ATM. You will be surprised how many "little things" gobble up those $40 withdrawals: cash for Starbucks here, cash for a donut or a muffin there. You then pay with cash as you go out for lunch, and there goes another $10 and it's not even 2 p.m. yet!
Once you make the commitment to track your spending, you can see where you can cut back if you need to. Give yourself an allowance of spending money: one ATM withdrawal of cash per week. Make that $20 or $40 last the whole 7 days. Make the commitment to spend no more cash than absolutely necessary. And continue to track each dollar.
You can't fix the problem until you know what the problem is. Knowing your spending can help you cut back where there is waste. Most importantly, adjusting your spending can help you meet your ultimate goal of saving money to pay off your credit card bills, a down payment for your own home or pay off your home sooner, or for your retirement. Adding $100 to your monthly mortgage payment, or to your car payment will pay either that much sooner. Making a larger payment than just the minimum payment will help you save a lot of money on interest on your credit cards too.
By: Maxine de Villefranche
As an attorney doing family law, I see the state of total disarray in many people's personal finances during the initial consultation. A common problem is that these people have no idea what they spend each month and don’t realize they’re often spending more than they earn. Many of them have numerous credit cards, and many people filing for divorce, among others, have $50,000 or more in credit card debts.
When you are sick, you pay careful attention to the medicine that the doctor prescribes. When you’re on a diet, you pay attention to the food you eat and weigh yourself every day. Yet most of us don't track how much we spend each month. You may know how much you spend on fixed bills like rent, but chances are that you don’t know to the nearest $100 how much you spend in total.
A budget is essential to taking control of your finances. Maybe there is a place you can tighten your belt. Maybe there isn't. How do you know where to cut back if you don't even know what you're spending?
Try this for one week (or better yet, for a month): you don't need to track every penny, but why not track every dollar you spend during the day? Save your receipts and jot down your daily expenditures. Keep a running tab so you know your month-to-date spending every day. When given a choice, use your debit card, not cash. Keep your debit receipts to make tracking easier and to make your spending more visible.
The biggest enemy of spending control is the ATM. You will be surprised how many "little things" gobble up those $40 withdrawals: cash for Starbucks here, cash for a donut or a muffin there. You then pay with cash as you go out for lunch, and there goes another $10 and it's not even 2 p.m. yet!
Once you make the commitment to track your spending, you can see where you can cut back if you need to. Give yourself an allowance of spending money: one ATM withdrawal of cash per week. Make that $20 or $40 last the whole 7 days. Make the commitment to spend no more cash than absolutely necessary. And continue to track each dollar.
You can't fix the problem until you know what the problem is. Knowing your spending can help you cut back where there is waste. Most importantly, adjusting your spending can help you meet your ultimate goal of saving money to pay off your credit card bills, a down payment for your own home or pay off your home sooner, or for your retirement. Adding $100 to your monthly mortgage payment, or to your car payment will pay either that much sooner. Making a larger payment than just the minimum payment will help you save a lot of money on interest on your credit cards too.
Legal Eaze #56 Underage Father/New Management Rules/Fingerprinting Clients
Title: October 11, 2006
Q. My brother who is 17 years old had sex with a woman who is 5 years his senior. She is now pregnant. Is he going to be responsible for child support? Isn’t this adult woman’s actions punishable by law?
A. If the woman gives birth to the child, your brother is the father of that child and yes, he will have to support this child. It is not the child’s fault that he was born. Parents of a child are responsible for supporting their children. On the other hand, sex with a minor is considered a crime, statutory rape to be exact, and this woman should be prosecuted to the extent of the law.
Q. The apartment building I live in has gone through a change of ownership lately. The previous manager resigned and a new manager moved in. Some of my neighbors were told by the new manager they no longer can keep a dog over 15 lbs. and have 30 days to either get rid of the dog, move out voluntarily or be evicted. These people have lived here for a year or more, some as long as 5 years. Others have been told that their satellite dishes installed on the roofs were no longer allowed. Shouldn’t these new rules apply only to new tenants who moved in after the change of ownership?
A. The new owner needs to enter into a new Rental Agreement with all the tenants if he wants to enforce new rules on the “old” tenants. Otherwise he is stepping into the shoes of the previous owner and cannot change the rules already in place. In addition, Under an FCC rule promulgated pursuant to the Telecommunications Act of 1996, landlords cannot prohibit tenants from installing satellite dishes, antennas or other telecommunications devices on the property.
Q. Is it legal for a business to insist on fingerprinting a client for identification? And should the client refuse to be fingerprinted isn’t the business denying him service? Wouldn’t this be a temptation to the technologically savvy unethical employee to use this information to steal the client’s identity?
A. I do not believe there is a law against fingerprinting clients, however, I would certainly refuse to do business with anyone who insist on fingerprinting me before I buy something from them as an extreme invasion of privacy. You have the right not to patronize a merchant who insists on doing so. However, if this has to do with obtaining a deed, a notary must take your fingerprint, a requirement by law. Often, a bank will require a fingerprint on the back of a check being cashed if you are not a bank customer.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. My brother who is 17 years old had sex with a woman who is 5 years his senior. She is now pregnant. Is he going to be responsible for child support? Isn’t this adult woman’s actions punishable by law?
A. If the woman gives birth to the child, your brother is the father of that child and yes, he will have to support this child. It is not the child’s fault that he was born. Parents of a child are responsible for supporting their children. On the other hand, sex with a minor is considered a crime, statutory rape to be exact, and this woman should be prosecuted to the extent of the law.
Q. The apartment building I live in has gone through a change of ownership lately. The previous manager resigned and a new manager moved in. Some of my neighbors were told by the new manager they no longer can keep a dog over 15 lbs. and have 30 days to either get rid of the dog, move out voluntarily or be evicted. These people have lived here for a year or more, some as long as 5 years. Others have been told that their satellite dishes installed on the roofs were no longer allowed. Shouldn’t these new rules apply only to new tenants who moved in after the change of ownership?
A. The new owner needs to enter into a new Rental Agreement with all the tenants if he wants to enforce new rules on the “old” tenants. Otherwise he is stepping into the shoes of the previous owner and cannot change the rules already in place. In addition, Under an FCC rule promulgated pursuant to the Telecommunications Act of 1996, landlords cannot prohibit tenants from installing satellite dishes, antennas or other telecommunications devices on the property.
Q. Is it legal for a business to insist on fingerprinting a client for identification? And should the client refuse to be fingerprinted isn’t the business denying him service? Wouldn’t this be a temptation to the technologically savvy unethical employee to use this information to steal the client’s identity?
A. I do not believe there is a law against fingerprinting clients, however, I would certainly refuse to do business with anyone who insist on fingerprinting me before I buy something from them as an extreme invasion of privacy. You have the right not to patronize a merchant who insists on doing so. However, if this has to do with obtaining a deed, a notary must take your fingerprint, a requirement by law. Often, a bank will require a fingerprint on the back of a check being cashed if you are not a bank customer.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #55 Overtime/Loan Payments/Visitation Modification
Title: September 27, 2006
Q. I am the manager of a restaurant and am a salaried employee. I very often work more than 40 hours a week, yet I do not get paid overtime. Shouldn’t I get overtime pay for the extra hours over 40 hours a week?
A. Not every worker is entitled to overtime pay. There are a few select professions that are not required to pay overtime. Generally speaking however, most hourly employees who are not either independent contractors or professionals requiring advanced degrees are covered by overtime laws. Overtime laws usually do not cover executives who supervise the work of others. Nor do they cover certain administrative employees who do “non-manual” work related to either management policies or general operations of the business. Such “executive” or “administrative” employees must also be paid a set minimum weekly salary in order to be exempt from overtime requirements (versus employees that are paid by the hour). I believe that you fall in the executive or administrator category.
Q. I got involved in online payday loans and got in over my head in hard financial times. One of the loans I obtained required that I pay the loan in full. I informed the company I could not pay in full but offered to make payments until fully paid. The manager refused the partial payments stating the loan needs to be paid in full, otherwise they will garnish my wages. Can they do this despite my offer to make payments?
A. Unfortunately, the agreement that you signed will dictate the company’s collection rights and/or your obligations to repay the loan as you promised in the written agreement, if this agreement is legally enforceable. You should have an attorney review the agreement you entered into to advise you of your rights, if any, under this agreement.
Q. My son travels to Florida every summer for his visitation with his father. He spent 3 weeks there and came back extremely sick. 2 days after he came back, he was hospitalized in the ICU. He turned out to be diabetic and his father explained away our son’s extreme weight loss by stating he was overactive with sports. Does he have to go next summer?
A. You need to file an Order to Show Cause for modification with the Court that ordered the summer visitation with his father. The Court needs to be made aware that your son’s health is being overlooked by his father and that the boy almost died the last time he went to visit his father. This is a very serious concern and the Court may very well change the visitation schedule.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I am the manager of a restaurant and am a salaried employee. I very often work more than 40 hours a week, yet I do not get paid overtime. Shouldn’t I get overtime pay for the extra hours over 40 hours a week?
A. Not every worker is entitled to overtime pay. There are a few select professions that are not required to pay overtime. Generally speaking however, most hourly employees who are not either independent contractors or professionals requiring advanced degrees are covered by overtime laws. Overtime laws usually do not cover executives who supervise the work of others. Nor do they cover certain administrative employees who do “non-manual” work related to either management policies or general operations of the business. Such “executive” or “administrative” employees must also be paid a set minimum weekly salary in order to be exempt from overtime requirements (versus employees that are paid by the hour). I believe that you fall in the executive or administrator category.
Q. I got involved in online payday loans and got in over my head in hard financial times. One of the loans I obtained required that I pay the loan in full. I informed the company I could not pay in full but offered to make payments until fully paid. The manager refused the partial payments stating the loan needs to be paid in full, otherwise they will garnish my wages. Can they do this despite my offer to make payments?
A. Unfortunately, the agreement that you signed will dictate the company’s collection rights and/or your obligations to repay the loan as you promised in the written agreement, if this agreement is legally enforceable. You should have an attorney review the agreement you entered into to advise you of your rights, if any, under this agreement.
Q. My son travels to Florida every summer for his visitation with his father. He spent 3 weeks there and came back extremely sick. 2 days after he came back, he was hospitalized in the ICU. He turned out to be diabetic and his father explained away our son’s extreme weight loss by stating he was overactive with sports. Does he have to go next summer?
A. You need to file an Order to Show Cause for modification with the Court that ordered the summer visitation with his father. The Court needs to be made aware that your son’s health is being overlooked by his father and that the boy almost died the last time he went to visit his father. This is a very serious concern and the Court may very well change the visitation schedule.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #54 Loan Fraud
Title: September 15, 2006
Q. Last year (2005) a family friend came to my grandmother with a business venture. She told my grandmother that if she would let her use her property as collateral that when she sold the house she was buying that she would split the money with her. My grand mother signed a deed that put her name on the property that was being bought, and was told that some other papers she was signing were giving this friend permission to use the property as collateral. Well, the papers my grandmother actually signed were loan papers putting the loan in both their names. Now this family friend hasn't made any payments and the property in question has been sold because the title company said there were no loans on it. Needless to say my grandmother, who's 75, is now being sued by the title company, the loan company, in addition to the “friend” who lied to her to get the loan. What should I or what can I do to help my grandmother?
A. A lawsuit for fraud is the starting point, in the form of a cross-complaint to the suits brought against her, with motions to set aside any fraudulent deeds and loans, and consolidation of all complaints into one action. You have an uphill battle, but it has to be done. I would strongly suggest that you hire an attorney to handle this for your grandmother, as this is not something that a layperson can handle without the help of an attorney.
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. You may contact her via Fax at (661)825-8880 or by e-mail at maxinedev@msn.com
Q. Last year (2005) a family friend came to my grandmother with a business venture. She told my grandmother that if she would let her use her property as collateral that when she sold the house she was buying that she would split the money with her. My grand mother signed a deed that put her name on the property that was being bought, and was told that some other papers she was signing were giving this friend permission to use the property as collateral. Well, the papers my grandmother actually signed were loan papers putting the loan in both their names. Now this family friend hasn't made any payments and the property in question has been sold because the title company said there were no loans on it. Needless to say my grandmother, who's 75, is now being sued by the title company, the loan company, in addition to the “friend” who lied to her to get the loan. What should I or what can I do to help my grandmother?
A. A lawsuit for fraud is the starting point, in the form of a cross-complaint to the suits brought against her, with motions to set aside any fraudulent deeds and loans, and consolidation of all complaints into one action. You have an uphill battle, but it has to be done. I would strongly suggest that you hire an attorney to handle this for your grandmother, as this is not something that a layperson can handle without the help of an attorney.
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. You may contact her via Fax at (661)825-8880 or by e-mail at maxinedev@msn.com
Legal Eaze #53 Elder Abuse
Elder abuse: When you suspect a loved one's mistreatment
(September 12, 2006)
By Maxine de Villefranche, Attorney at Law
Recognize the signs and symptoms of elder abuse and find out how you can help.
Perhaps you suspect your elderly neighbor isn't caring for herself the way she needs to, but you aren't certain. Or maybe you wonder about some bruises you've seen on your aging uncle. You can't get rid of the nagging feeling that something's not right. But is it elder abuse? What should you look for, and what can you do?
Take time to understand what constitutes elder abuse and what signs indicate that a loved one may not be getting the care he or she deserves. Knowing more about elder abuse and who to call for assistance can help you protect your loved ones.
What is elder abuse?
Elder abuse occurs when someone knowingly or unknowingly causes harm or a risk of harm to an older adult. It can take several forms, including:
1. Physical abuse. Physical abuse is the use of physical force, such as hitting, pushing, shaking or burning, with the intention of causing pain or injury.
2. Sexual abuse. Sexual abuse involves any nonconsensual sexual contact, such as inappropriate touching, rape or pornographic photographing.
3. Emotional abuse. Psychological or emotional abuse is the use of tactics, such as harassment, insults, intimidation or threats, which cause mental or emotional anguish or isolation.
4. Financial abuse. Financial abuse or material exploitation involves improperly using an older person's resources for the benefit of another person, for example, by stealing, trickery or inappropriate use of government checks. Inappropriate use of financial power of attorney is another common example.
5. Neglect. Neglect occurs when a caregiver refuses or fails to provide the level of care necessary to avoid physical or mental harm. Examples include inadequate attention to food, water, shelter and personal hygiene.
The abuser is typically a family member, spouse or caregiver. In institutions, such as nursing homes or group homes, professional caregivers may be abusers.
People age 80 and older, especially women, are at a greater risk of experiencing elder abuse. Older adults who are dependent on others for basic care are particularly vulnerable.
Older adults can hurt themselves, too
One of the most common types of elder abuse occurs when older adults unintentionally jeopardize their own safety. Self-neglect can happen if an older adult deprives him- or herself of necessities such as food, water or medication. If the older adult is mentally competent, yet consciously makes decisions that put him- or herself in harm's way, it may be a case of self-neglect. Self-neglect often occurs in older adults who have declining health, who are isolated or depressed, or who abuse drugs or alcohol.
Signs that an older adult is neglecting him- or herself include:
1. Neglecting personal hygiene
2. Wearing soiled or ragged clothes
3. Lacking food or basic utilities
4. Refusing to take medications
Contact resources in your area if you know any older adults who may be neglecting their own needs and putting themselves in danger. Contact your loved one's doctor to report your concerns. Often, helping older adults who neglect themselves involves treating underlying conditions, such as depression, or putting older adults in touch with resources designed to help them get groceries or help them with housework. It's usually possible for the older adult to remain at home, while at the same time improving his or her safety. In some cases a guardian might be appointed to care for the older person.
What should you look for?
If you're concerned an older adult might be abused, knowing the signs and symptoms of abuse can help you determine if a problem exists. These signs and symptoms may include:
1. Physical injury. Examples of questionable injuries include bruises, cuts, burn or rope marks, and broken bones or sprains that can't be explained. Other signs of potential problems include sudden changes in behavior, comments about being battered or the refusal of the caregiver to allow you to visit the older person alone.
2. Lack of physical care. Indications of substandard physical care include dehydration, malnourishment, weight loss and poor hygiene. Bed sores, soiled bedding, unmet medical needs and comments about being mistreated also may indicate a problem. Lack of physical care can happen to older adults living in their homes, as well as those in institutional care, such as a nursing home.
3. Unusual behaviors. Changes in an older person's behavior or emotional state may suggest a problem. Examples include agitation, withdrawal, fear or anxiety, apathy, or reports of being treated improperly.
4. Unaccounted for financial changes. Potential problematic financial changes include missing money or valuables, unexplained financial transactions, unpaid bills despite available funds and sudden transfer of assets, as well as comments about being exploited. Another sign may be older adults who are controlling their finances but don't allow relatives to see their records.
What can you do?
Talking with the suspected abuser about the problem isn't likely to help. Though you might be afraid to get involved or be unsure of who to contact, it's important for you to speak up about suspected elder abuse. Officials and agencies that address this problem do exist. The problem can't be remedied until it's reported.
In domestic situations, as with any form of domestic abuse, call the police if a person is in imminent danger. If you're not aware of immediate danger, but you suspect abuse, check with welfare and social service agencies. Most cities and counties, according to state law, will investigate and protect vulnerable adults from elder abuse through these agencies.
The Adult Protective Services agency — a component of human service agencies in most states — is typically responsible for investigating reports of domestic elder abuse and providing families with help and guidance. Other professionals who may be able to help include doctors or nurses, police officers, lawyers and social workers.
If you suspect elder abuse in an institutional setting, such as a nursing home, report concerns to your state long term care ombudsman. Each state has a long term care ombudsman to investigate and address nursing home complaints.
(September 12, 2006)
By Maxine de Villefranche, Attorney at Law
Recognize the signs and symptoms of elder abuse and find out how you can help.
Perhaps you suspect your elderly neighbor isn't caring for herself the way she needs to, but you aren't certain. Or maybe you wonder about some bruises you've seen on your aging uncle. You can't get rid of the nagging feeling that something's not right. But is it elder abuse? What should you look for, and what can you do?
Take time to understand what constitutes elder abuse and what signs indicate that a loved one may not be getting the care he or she deserves. Knowing more about elder abuse and who to call for assistance can help you protect your loved ones.
What is elder abuse?
Elder abuse occurs when someone knowingly or unknowingly causes harm or a risk of harm to an older adult. It can take several forms, including:
1. Physical abuse. Physical abuse is the use of physical force, such as hitting, pushing, shaking or burning, with the intention of causing pain or injury.
2. Sexual abuse. Sexual abuse involves any nonconsensual sexual contact, such as inappropriate touching, rape or pornographic photographing.
3. Emotional abuse. Psychological or emotional abuse is the use of tactics, such as harassment, insults, intimidation or threats, which cause mental or emotional anguish or isolation.
4. Financial abuse. Financial abuse or material exploitation involves improperly using an older person's resources for the benefit of another person, for example, by stealing, trickery or inappropriate use of government checks. Inappropriate use of financial power of attorney is another common example.
5. Neglect. Neglect occurs when a caregiver refuses or fails to provide the level of care necessary to avoid physical or mental harm. Examples include inadequate attention to food, water, shelter and personal hygiene.
The abuser is typically a family member, spouse or caregiver. In institutions, such as nursing homes or group homes, professional caregivers may be abusers.
People age 80 and older, especially women, are at a greater risk of experiencing elder abuse. Older adults who are dependent on others for basic care are particularly vulnerable.
Older adults can hurt themselves, too
One of the most common types of elder abuse occurs when older adults unintentionally jeopardize their own safety. Self-neglect can happen if an older adult deprives him- or herself of necessities such as food, water or medication. If the older adult is mentally competent, yet consciously makes decisions that put him- or herself in harm's way, it may be a case of self-neglect. Self-neglect often occurs in older adults who have declining health, who are isolated or depressed, or who abuse drugs or alcohol.
Signs that an older adult is neglecting him- or herself include:
1. Neglecting personal hygiene
2. Wearing soiled or ragged clothes
3. Lacking food or basic utilities
4. Refusing to take medications
Contact resources in your area if you know any older adults who may be neglecting their own needs and putting themselves in danger. Contact your loved one's doctor to report your concerns. Often, helping older adults who neglect themselves involves treating underlying conditions, such as depression, or putting older adults in touch with resources designed to help them get groceries or help them with housework. It's usually possible for the older adult to remain at home, while at the same time improving his or her safety. In some cases a guardian might be appointed to care for the older person.
What should you look for?
If you're concerned an older adult might be abused, knowing the signs and symptoms of abuse can help you determine if a problem exists. These signs and symptoms may include:
1. Physical injury. Examples of questionable injuries include bruises, cuts, burn or rope marks, and broken bones or sprains that can't be explained. Other signs of potential problems include sudden changes in behavior, comments about being battered or the refusal of the caregiver to allow you to visit the older person alone.
2. Lack of physical care. Indications of substandard physical care include dehydration, malnourishment, weight loss and poor hygiene. Bed sores, soiled bedding, unmet medical needs and comments about being mistreated also may indicate a problem. Lack of physical care can happen to older adults living in their homes, as well as those in institutional care, such as a nursing home.
3. Unusual behaviors. Changes in an older person's behavior or emotional state may suggest a problem. Examples include agitation, withdrawal, fear or anxiety, apathy, or reports of being treated improperly.
4. Unaccounted for financial changes. Potential problematic financial changes include missing money or valuables, unexplained financial transactions, unpaid bills despite available funds and sudden transfer of assets, as well as comments about being exploited. Another sign may be older adults who are controlling their finances but don't allow relatives to see their records.
What can you do?
Talking with the suspected abuser about the problem isn't likely to help. Though you might be afraid to get involved or be unsure of who to contact, it's important for you to speak up about suspected elder abuse. Officials and agencies that address this problem do exist. The problem can't be remedied until it's reported.
In domestic situations, as with any form of domestic abuse, call the police if a person is in imminent danger. If you're not aware of immediate danger, but you suspect abuse, check with welfare and social service agencies. Most cities and counties, according to state law, will investigate and protect vulnerable adults from elder abuse through these agencies.
The Adult Protective Services agency — a component of human service agencies in most states — is typically responsible for investigating reports of domestic elder abuse and providing families with help and guidance. Other professionals who may be able to help include doctors or nurses, police officers, lawyers and social workers.
If you suspect elder abuse in an institutional setting, such as a nursing home, report concerns to your state long term care ombudsman. Each state has a long term care ombudsman to investigate and address nursing home complaints.
Legal Eaze #52 Inadvertent Adult Materials
Title: August 23, 2006
Q. I heard that there is now a federal law protecting minors from being deceived into viewing sexually explicit material on the Internet. Is that correct?
A. Let’s say that your young but Internet-savy child does an on-line search for “Barney the Dinosaur”. The search engine directs him to a site called www.BarneyTheDinosaueFanClub.com
Your kid clicks on the website, and the front page of the site shows a picture of Barney the Purple Dinosaur with a message reading “Click on Barney’s picture to see all of his latest adventures”.
Your kid clicks on the picture as directed – and is instantly transported to a website featuring hot XXX hardcore sex action of the most depraved sort imaginable.
If a website owner now tries that trick - it could soon land him up to 20 years in prison (assuming that he is in a place that could be subject to U.S. legal jurisdiction).
In July of 2006, Congress passed a law that makes it a federal felony for anyone to use misleading "words" or "images" that are intended to confuse a minor into viewing a sexually explicit website. It is all part of the “Adam Walsh Child Protection Safety Act of 2006” – one of the most extensive rewrites of federal laws concerning child pornography and sex offenders in several years.
The law was named after Adam Walsh – a young child who was tragically abducted and killed in the early 1980’s (His father, John Walsh, went on to host the popular television show “America’s Most Wanted”.)
The law states in part: “Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a minor into viewing material harmful to minors on the Internet shall be fined under this title and imprisoned for not more than 20 years.”
This law defines the phrase “harmful to minors” as “any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context—
(1) predominantly appeals to a prurient interest of minors;
(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) lacks serious literary, artistic, political, or scientific value for minors.”
Civil libertarians worry that the law might be too broadly worded. Could you get into trouble by posting pictures of Barbie dolls engaged in sex acts if your site is designed to appeal to Barbie fans with a sense of humor? The argument would be that the site wasn’t specifically geared for only minors, or that the pictures still hold “serious literary, artistic, political, or scientific value for minors” as the law allows for. It is a natural inclination to think that authorities would use common sense in enforcing this law. But if you have any serious concerns – consult an attorney.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I heard that there is now a federal law protecting minors from being deceived into viewing sexually explicit material on the Internet. Is that correct?
A. Let’s say that your young but Internet-savy child does an on-line search for “Barney the Dinosaur”. The search engine directs him to a site called www.BarneyTheDinosaueFanClub.com
Your kid clicks on the website, and the front page of the site shows a picture of Barney the Purple Dinosaur with a message reading “Click on Barney’s picture to see all of his latest adventures”.
Your kid clicks on the picture as directed – and is instantly transported to a website featuring hot XXX hardcore sex action of the most depraved sort imaginable.
If a website owner now tries that trick - it could soon land him up to 20 years in prison (assuming that he is in a place that could be subject to U.S. legal jurisdiction).
In July of 2006, Congress passed a law that makes it a federal felony for anyone to use misleading "words" or "images" that are intended to confuse a minor into viewing a sexually explicit website. It is all part of the “Adam Walsh Child Protection Safety Act of 2006” – one of the most extensive rewrites of federal laws concerning child pornography and sex offenders in several years.
The law was named after Adam Walsh – a young child who was tragically abducted and killed in the early 1980’s (His father, John Walsh, went on to host the popular television show “America’s Most Wanted”.)
The law states in part: “Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a minor into viewing material harmful to minors on the Internet shall be fined under this title and imprisoned for not more than 20 years.”
This law defines the phrase “harmful to minors” as “any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context—
(1) predominantly appeals to a prurient interest of minors;
(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) lacks serious literary, artistic, political, or scientific value for minors.”
Civil libertarians worry that the law might be too broadly worded. Could you get into trouble by posting pictures of Barbie dolls engaged in sex acts if your site is designed to appeal to Barbie fans with a sense of humor? The argument would be that the site wasn’t specifically geared for only minors, or that the pictures still hold “serious literary, artistic, political, or scientific value for minors” as the law allows for. It is a natural inclination to think that authorities would use common sense in enforcing this law. But if you have any serious concerns – consult an attorney.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #51 Garnishments/Car Service Delay
Title: August 2, 2006
Q. My paychecks are being garnished every month for child support I owed. My boss has expressed his frustration overt that, because extra work has to be done by his bookkeeper. He threatened to fire me if I did not deal with this myself. I do not have a choice about these garnishments because the court ordered it to be done this way. But I do not want to get fired over this. I remember when I was called for jury duty, he made the same threat, stating that he could not afford to have any of his employees out for jury duty. What can I do?
A. Your employer cannot punish you because a court has garnished your wages or is threatening you to do so as part of a court order. In other words, if a court takes money out of your paycheck because it ordered you to pay for past debt, unfulfilled child support or alimony, it is illegal for your boss to fire you or to punish you in any way for the garnishment. Such matters are considered separate from workplace disputes. As for jury duty, you cannot be fired for taking time off of work to serve on a jury or appear as a witness in a case, as long as you give your employer reasonable advance notice. There are also a variety of federal law offering similar protections to you in the workplace (Title VII of the U.S. Civil Rights, Act, for instance). More often than not, California statutes prove to have even broader protections than the federal laws. However, any who feels that they were wrongfully terminated, would still be wise to consider statutes under California and federal law.
Q. I bought a brand new car in January 2006. The air conditioner in the car stopped functioning last week in this heat and I am totally miserable. I called the dealer where I bought the car to make an appointment with the service department. I have only driven the car 8,500 miles so far. Their service department is extremely busy and I can’t get an appointment until the end of next week. What should I do?
A. I would attempt to make an appointment with the service department of another dealer that sells the same kind of car, in order to get your car repaired sooner. You can go to any dealer you want, as long as that dealer sells the kind of vehicle you own. You can also rent a car (that has working air conditioning) and present the rent-a-car bill to your dealer who could not service your car in a timely manner. However, make sure to notify that dealer of your intentions. .
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. My paychecks are being garnished every month for child support I owed. My boss has expressed his frustration overt that, because extra work has to be done by his bookkeeper. He threatened to fire me if I did not deal with this myself. I do not have a choice about these garnishments because the court ordered it to be done this way. But I do not want to get fired over this. I remember when I was called for jury duty, he made the same threat, stating that he could not afford to have any of his employees out for jury duty. What can I do?
A. Your employer cannot punish you because a court has garnished your wages or is threatening you to do so as part of a court order. In other words, if a court takes money out of your paycheck because it ordered you to pay for past debt, unfulfilled child support or alimony, it is illegal for your boss to fire you or to punish you in any way for the garnishment. Such matters are considered separate from workplace disputes. As for jury duty, you cannot be fired for taking time off of work to serve on a jury or appear as a witness in a case, as long as you give your employer reasonable advance notice. There are also a variety of federal law offering similar protections to you in the workplace (Title VII of the U.S. Civil Rights, Act, for instance). More often than not, California statutes prove to have even broader protections than the federal laws. However, any who feels that they were wrongfully terminated, would still be wise to consider statutes under California and federal law.
Q. I bought a brand new car in January 2006. The air conditioner in the car stopped functioning last week in this heat and I am totally miserable. I called the dealer where I bought the car to make an appointment with the service department. I have only driven the car 8,500 miles so far. Their service department is extremely busy and I can’t get an appointment until the end of next week. What should I do?
A. I would attempt to make an appointment with the service department of another dealer that sells the same kind of car, in order to get your car repaired sooner. You can go to any dealer you want, as long as that dealer sells the kind of vehicle you own. You can also rent a car (that has working air conditioning) and present the rent-a-car bill to your dealer who could not service your car in a timely manner. However, make sure to notify that dealer of your intentions. .
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #50 Disturbing Tenant/Weird Laws
Title: July 19, 2006
Q. I am a tenant in an apartment building where I was assaulted by another tenant. I made a complaint to the police. I did not know this guy but when I talked to the landlord about him, he informed me that this guy gets drunk then goes around threatening everybody. He apparently got into a fight with another tenant who obtained a restraining order against him, so the landlord moved him to another apartment about 4 to 5 doors down from me. Now he yells at me or my wife as he goes by our place or just sits in front of our place for hours yelling at the world. Can I sue the landlord for keeping this guy around and can I get punitive damages?
A. You are owed quiet enjoyment of your apartment by the landlord. If the landlord knows this man is harassing other tenants, it is his duty to evict him. Punitive damages may or may not be awarded by a court depending on how malicious and/or despicable the landlord’s conduct is with regards to all of his tenants. Punitive damages are not always easy to be awarded and are always contingent upon the conduct of the defendant. I truly believe that this man may be an escaped mental patient and should be returned to the mental ward. Have you thought of obtaining your very own restraining order against this crazy man?
Weird laws in California:
1. Animals are banned from mating publicly within 1,500 feet of a tavern, school, or place of worship.
2. Bathhouses are against the law.
3. It is a misdemeanor to shoot at any kind of game from a moving vehicle, unless the target is a whale.
4. Women may not drive in a house coat.
In New York:
1. A fine of $25 can be levied for flirting. This old law specifically prohibits men from turning around on any city street and looking “at a woman in that way”. A second conviction for a crime of this magnitude calls the violating male to be forced to wear a “pair of horse-blinders” wherever and whenever he goes outside for stroll.
2. It is against the law to throw a ball at someone’s head for fun.
3. A license must be purchased before hanging clothes on a clothesline.
4. The penalty for jumping off a building is death.
In Florida:
1. Women may be fined for falling asleep under a hair dryer, as can the salon owner.
2. A special law prohibits unmarried women from parachuting on Sunday or she shall risk arrest, fine and/or jailing.
3. If an elephant is left tied to a parking meter, the parking fee has to be paid just as it would for a vehicle.
4. It is illegal to sing in a public place while attired in a swimsuit.
5. Men may not be seen publicly in any kind of strapless gown.
6. Having sexual relations with a porcupine is illegal.
7. It is illegal to skateboard without a license.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I am a tenant in an apartment building where I was assaulted by another tenant. I made a complaint to the police. I did not know this guy but when I talked to the landlord about him, he informed me that this guy gets drunk then goes around threatening everybody. He apparently got into a fight with another tenant who obtained a restraining order against him, so the landlord moved him to another apartment about 4 to 5 doors down from me. Now he yells at me or my wife as he goes by our place or just sits in front of our place for hours yelling at the world. Can I sue the landlord for keeping this guy around and can I get punitive damages?
A. You are owed quiet enjoyment of your apartment by the landlord. If the landlord knows this man is harassing other tenants, it is his duty to evict him. Punitive damages may or may not be awarded by a court depending on how malicious and/or despicable the landlord’s conduct is with regards to all of his tenants. Punitive damages are not always easy to be awarded and are always contingent upon the conduct of the defendant. I truly believe that this man may be an escaped mental patient and should be returned to the mental ward. Have you thought of obtaining your very own restraining order against this crazy man?
Weird laws in California:
1. Animals are banned from mating publicly within 1,500 feet of a tavern, school, or place of worship.
2. Bathhouses are against the law.
3. It is a misdemeanor to shoot at any kind of game from a moving vehicle, unless the target is a whale.
4. Women may not drive in a house coat.
In New York:
1. A fine of $25 can be levied for flirting. This old law specifically prohibits men from turning around on any city street and looking “at a woman in that way”. A second conviction for a crime of this magnitude calls the violating male to be forced to wear a “pair of horse-blinders” wherever and whenever he goes outside for stroll.
2. It is against the law to throw a ball at someone’s head for fun.
3. A license must be purchased before hanging clothes on a clothesline.
4. The penalty for jumping off a building is death.
In Florida:
1. Women may be fined for falling asleep under a hair dryer, as can the salon owner.
2. A special law prohibits unmarried women from parachuting on Sunday or she shall risk arrest, fine and/or jailing.
3. If an elephant is left tied to a parking meter, the parking fee has to be paid just as it would for a vehicle.
4. It is illegal to sing in a public place while attired in a swimsuit.
5. Men may not be seen publicly in any kind of strapless gown.
6. Having sexual relations with a porcupine is illegal.
7. It is illegal to skateboard without a license.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #49 Apartment Property Damage/Informal Custody
Title: June 28, 2006
Q. I live in an apartment and my car was parked in front of the apartment building. The property management hired a weedwacking service and as the man was using his weedwacker, a rock flew up and hit my windshield, breaking it. I had just parked my car and was walking away from it when it happened. I saw the rock hit my windshield. What can I do?
A. Ask your property management to give you the name of the company that was taking care of the weedwacking. They should be insured for this type of damage. If they are not, then your property management should give information about the building’s property insurance for any damage that occurs on the grounds of the apartment building. You then make a claim with the insurance company. You obviously are going to need at least a couple of estimates on the repair.
Q.My husband and I are grandparents to two wonderful boys whom we have had in our care for approximately ten years. We never petitioned the court for their guardianship. My son, their father, who was awarded custody of his two boys, left them with us. Obviously, this is just an informal arrangement. But we are very attached to these boys and treat them like our own children. It is possible that their father could decide to pick them up some day and take them away from us?
A. Yes, it is possible, since you did not formalize your relationship with these boys through the court. However, if the boys are happy with you, doing well in school and their lives are stable, you could certainly dispute their father’s sudden interest in the children, especially if the boys have been in your care for 10 years. The court is most favorable to keeping the status quo, and if these children have been well taken care of for 10 years, it is very likely that you would be awarded permanent guardianship. You need to realize that you might have to fight your son for custody of the children in court and it might be a costly endeavor, but the best interest of the children is what is most important here, and the court will hopefully realize that you have the best of the children at heart.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I live in an apartment and my car was parked in front of the apartment building. The property management hired a weedwacking service and as the man was using his weedwacker, a rock flew up and hit my windshield, breaking it. I had just parked my car and was walking away from it when it happened. I saw the rock hit my windshield. What can I do?
A. Ask your property management to give you the name of the company that was taking care of the weedwacking. They should be insured for this type of damage. If they are not, then your property management should give information about the building’s property insurance for any damage that occurs on the grounds of the apartment building. You then make a claim with the insurance company. You obviously are going to need at least a couple of estimates on the repair.
Q.My husband and I are grandparents to two wonderful boys whom we have had in our care for approximately ten years. We never petitioned the court for their guardianship. My son, their father, who was awarded custody of his two boys, left them with us. Obviously, this is just an informal arrangement. But we are very attached to these boys and treat them like our own children. It is possible that their father could decide to pick them up some day and take them away from us?
A. Yes, it is possible, since you did not formalize your relationship with these boys through the court. However, if the boys are happy with you, doing well in school and their lives are stable, you could certainly dispute their father’s sudden interest in the children, especially if the boys have been in your care for 10 years. The court is most favorable to keeping the status quo, and if these children have been well taken care of for 10 years, it is very likely that you would be awarded permanent guardianship. You need to realize that you might have to fight your son for custody of the children in court and it might be a costly endeavor, but the best interest of the children is what is most important here, and the court will hopefully realize that you have the best of the children at heart.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #48 Child Custody Jurisdiction/Reimbursement
Title: June 14, 2006
Q. My brother and his wife just had a baby girl a few weeks ago. They live in Florida. His wife came to spend some time with her parents here in California and brought the baby with her. The next thing we know, the wife filed for sole custody of the baby in California and does not plan to go back to Florida. Can she do that?
A. A petition for custody needs to be filed in the Court that has jurisdiction in accordance with the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The “home state” means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Obviously the baby is not even six months old yet. Unless “emergency” jurisdiction applies, i.e. there is a genuine “immediate” and “substantial harm” to the child or the mother, the California court will more than likely refuse to make a decision in the case because it does not have jurisdiction over the child. However, if your brother has a violent temper and she fears for her own safety or the safety of the child, then “emergency” jurisdiction would apply and the California court will make a decision either on an ex-parte basis or after a second hearing to allow both parties to prepare their argument in writing.
Q. I bought a carton of Snapple tea bottles from a grocery store (24 bottles were included). A few days later, I picked up a bottle and was getting ready to open it when I noticed some strange green stuff inside the bottle. I grossed me out and I vomited the meal I had just eaten. I returned the bottle to the store and an employee took a report, but nothing was done to reimburse me for the trouble I went through. What can I do?
A. Other than the dinner you lost, were you injured? Did you have to go to the hospital or doctor for mental stress? There is little you can do because your damages are minimal. You could bill the store for the meal you lost. The store where you bought the tea did not manufacture the bottles and it would be up to the manufacturer to reimburse you for the damages you suffered. If I was the owner of the store, I would probably offer you another carton just to appease you. Make sure that the bottle you are about to drink from is still sealed. It is possible that the bottle was “banged” around and the seal was broken. The “green stuff” you saw inside the bottle was probably harmless mold.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. My brother and his wife just had a baby girl a few weeks ago. They live in Florida. His wife came to spend some time with her parents here in California and brought the baby with her. The next thing we know, the wife filed for sole custody of the baby in California and does not plan to go back to Florida. Can she do that?
A. A petition for custody needs to be filed in the Court that has jurisdiction in accordance with the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The “home state” means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Obviously the baby is not even six months old yet. Unless “emergency” jurisdiction applies, i.e. there is a genuine “immediate” and “substantial harm” to the child or the mother, the California court will more than likely refuse to make a decision in the case because it does not have jurisdiction over the child. However, if your brother has a violent temper and she fears for her own safety or the safety of the child, then “emergency” jurisdiction would apply and the California court will make a decision either on an ex-parte basis or after a second hearing to allow both parties to prepare their argument in writing.
Q. I bought a carton of Snapple tea bottles from a grocery store (24 bottles were included). A few days later, I picked up a bottle and was getting ready to open it when I noticed some strange green stuff inside the bottle. I grossed me out and I vomited the meal I had just eaten. I returned the bottle to the store and an employee took a report, but nothing was done to reimburse me for the trouble I went through. What can I do?
A. Other than the dinner you lost, were you injured? Did you have to go to the hospital or doctor for mental stress? There is little you can do because your damages are minimal. You could bill the store for the meal you lost. The store where you bought the tea did not manufacture the bottles and it would be up to the manufacturer to reimburse you for the damages you suffered. If I was the owner of the store, I would probably offer you another carton just to appease you. Make sure that the bottle you are about to drink from is still sealed. It is possible that the bottle was “banged” around and the seal was broken. The “green stuff” you saw inside the bottle was probably harmless mold.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Legal Eaze #47 Sub-Contractor Lien/Not Bound by Attorney-Client Privilege
Title: May 24, 2006
Q. I hired a contractor to turn my two-car garage into a three-car garage. The contractor collected a deposit of 10 percent plus a material deposit and the remainder of the contract was to be paid when the work was completed. After completion of the project by a sub-contractor, I paid the contractor the remainder of the contract price. The sub-contractor later informed me that he had not been paid by the contractor and that he was filing a mechanic’s lien on my house. Can he do that?
A. Not unless (1) the sub-contractor served you with a 2-day preliminary notice before he began work, or sometime during or immediately after his work was completed or (2) the sub-contractor had a direct contract with you. If a contractor (as opposed to a sub-contractor) has a direct contract with you, there is no 20-day preliminary notice requirement. The contractor is allowed to file a lien within 90 days of completion of the project and then has 90 days in which to foreclose on the lien, which can be done in small claims court.
Q. I went to a lawyer for a legal consultation and my girlfriend came with me. I discussed a family law matter with him. My girlfriend knows everything about my marital problems. The attorney warned me that although he was bound by the attorney-client privilege, my girlfriend was not. What did he mean by that?
A It means that anything that is discussed in an attorney’s office is a privileged conversation and the attorney cannot discuss it with anyone else who is not affiliated with his own office. However, your girlfriend is not an attorney and she is not bound to secrecy. She does not have a duty to keep what was discussed in her presence a secret. As a result, if you ever have a fallout with her, she might discuss your private affairs with anyone she chooses to discuss them with and there will be nothing you can do about it. Hence, when you go to your attorney’s office, it is not always a good idea to bring someone with you. I realize that you may feel the need for mental support from a friend, but that defeats the purpose of the attorney-client privilege. Anyone else present in the attorney’s office, other than his staff, is not bound by that privilege.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Q. I hired a contractor to turn my two-car garage into a three-car garage. The contractor collected a deposit of 10 percent plus a material deposit and the remainder of the contract was to be paid when the work was completed. After completion of the project by a sub-contractor, I paid the contractor the remainder of the contract price. The sub-contractor later informed me that he had not been paid by the contractor and that he was filing a mechanic’s lien on my house. Can he do that?
A. Not unless (1) the sub-contractor served you with a 2-day preliminary notice before he began work, or sometime during or immediately after his work was completed or (2) the sub-contractor had a direct contract with you. If a contractor (as opposed to a sub-contractor) has a direct contract with you, there is no 20-day preliminary notice requirement. The contractor is allowed to file a lien within 90 days of completion of the project and then has 90 days in which to foreclose on the lien, which can be done in small claims court.
Q. I went to a lawyer for a legal consultation and my girlfriend came with me. I discussed a family law matter with him. My girlfriend knows everything about my marital problems. The attorney warned me that although he was bound by the attorney-client privilege, my girlfriend was not. What did he mean by that?
A It means that anything that is discussed in an attorney’s office is a privileged conversation and the attorney cannot discuss it with anyone else who is not affiliated with his own office. However, your girlfriend is not an attorney and she is not bound to secrecy. She does not have a duty to keep what was discussed in her presence a secret. As a result, if you ever have a fallout with her, she might discuss your private affairs with anyone she chooses to discuss them with and there will be nothing you can do about it. Hence, when you go to your attorney’s office, it is not always a good idea to bring someone with you. I realize that you may feel the need for mental support from a friend, but that defeats the purpose of the attorney-client privilege. Anyone else present in the attorney’s office, other than his staff, is not bound by that privilege.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Legal Eaze #46 Unlawful Detainer/ Apartment Lease Agreement
Title: May 10, 2006
Q. How long does an unlawful detainer lawsuit take once it has been filed?
A. Once the case has been filed, the entire process from start to finish could take anywhere from 30 to 45 days, depending on whether the tenant files an answer to the Unlawful Detainer Complaint. An answer is due within 5 days from the time the complaint is served on the tenant. If the attorney representing the landlord is on top of everything, a Memorandum to set the case for trial is filed with the court immediately after the answer is received and the court will set the case for trial usually within two to three weeks. Once the case is tried, a judgment will be rendered by the court. If the tenant loses the case, he or she will have a short period of time within which to move out, usually one week. If the tenant does not move out in time, the sheriff will post a notice to move out within one week. If the tenant is still not out one week later, the sheriff will escort the tenant out, giving back possession of the unit the landlord. Unlawful detainer actions have priority because of the urgency of the landlord to get back the unit occupied by the tenant. Every day the tenant is in possession costs the landlord money.
Q. Can I be evicted for having another family member reside in my apartment when the manager is aware of the additional person?
A It depends on your lease agreement. If the lease agreement does not mention how many people are to live in the premises, then it does not matter how many people live there. If the lease agreement specifies how many persons are to reside on the premises, but it is not enforced, just make sure that you obey all rules and regulations and the additional person might not be a bother to the landlord. Although the manager is aware of the additional person, if this person does not cause any problems or conflicts, an eviction should not be feared. However, if the present manager is removed and another manager takes his place, then beware. The safe thing to do is to get formal permission from the landlord to have that additional family member living on your premises. The lease could be reformed, or that family member could simply be added to the existing lease.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Q. How long does an unlawful detainer lawsuit take once it has been filed?
A. Once the case has been filed, the entire process from start to finish could take anywhere from 30 to 45 days, depending on whether the tenant files an answer to the Unlawful Detainer Complaint. An answer is due within 5 days from the time the complaint is served on the tenant. If the attorney representing the landlord is on top of everything, a Memorandum to set the case for trial is filed with the court immediately after the answer is received and the court will set the case for trial usually within two to three weeks. Once the case is tried, a judgment will be rendered by the court. If the tenant loses the case, he or she will have a short period of time within which to move out, usually one week. If the tenant does not move out in time, the sheriff will post a notice to move out within one week. If the tenant is still not out one week later, the sheriff will escort the tenant out, giving back possession of the unit the landlord. Unlawful detainer actions have priority because of the urgency of the landlord to get back the unit occupied by the tenant. Every day the tenant is in possession costs the landlord money.
Q. Can I be evicted for having another family member reside in my apartment when the manager is aware of the additional person?
A It depends on your lease agreement. If the lease agreement does not mention how many people are to live in the premises, then it does not matter how many people live there. If the lease agreement specifies how many persons are to reside on the premises, but it is not enforced, just make sure that you obey all rules and regulations and the additional person might not be a bother to the landlord. Although the manager is aware of the additional person, if this person does not cause any problems or conflicts, an eviction should not be feared. However, if the present manager is removed and another manager takes his place, then beware. The safe thing to do is to get formal permission from the landlord to have that additional family member living on your premises. The lease could be reformed, or that family member could simply be added to the existing lease.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Legal Eaze #45 Vacant Lot/Lien
Title: April 5, 2006
Q. I am one of six owners of a vacant lot. Five of the six are ready to sell. How should we proceed to make this happen?
A. If the sixth party is adamant not to sell his interest, you may need to file an action for partition. A partition is the division among several persons of lands that belong to them as co-owners, either by physically dividing the property into as many portions as there are shares to be distributed among the respective owners, or by selling the property and distribution the proceeds among the owners according to their interest. In the absence of a waiver, a tenant in common or joint tenants has an absolute right to sever his or her interests from those of the cotenants. Partition may be effected wither by voluntary agreement of the co-owners or by judgment in an action undertaken for that purpose. The object is to enable each party to obtain title to and use of some definite portion of the property in severalty. There is no transfer of title; rather, property to which the parties already have title is divided among them. Thus partition transforms the right to common possession of the entire parcel into a right of exclusive possession of some portion of the property held in severalty. Methods of partition are as follows: (1) physical division of the property (2) sale of the property and division of the proceeds (3) partition by appraisal under which any of the parties may acquire the interests of the others at their value as determined in a court-ordered appraisal.
Q. I put my son on the title to my house as joint tenant because I wanted my house to go to him when I die. He got into a car accident and had no insurance. The other driver obtained a judgment against my son because he caused the accident and I fear that a lien is being placed on my residence. What can I do?
A You can do nothing. Adding your children to the title has serious consequences, such as the one you find yourself in. Your son could have inherited the house through a Revocable Living Trust where title to the house transfers to your son at your death and not before. Children sometimes get into trouble and if they are on title, any of their creditors can lien your house, because they own it too. Let it be a lesson to you and remove your son from title as soon as possible, if he assents to it. If he does not want his name to be removed from title, you are stuck.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-
Q. I am one of six owners of a vacant lot. Five of the six are ready to sell. How should we proceed to make this happen?
A. If the sixth party is adamant not to sell his interest, you may need to file an action for partition. A partition is the division among several persons of lands that belong to them as co-owners, either by physically dividing the property into as many portions as there are shares to be distributed among the respective owners, or by selling the property and distribution the proceeds among the owners according to their interest. In the absence of a waiver, a tenant in common or joint tenants has an absolute right to sever his or her interests from those of the cotenants. Partition may be effected wither by voluntary agreement of the co-owners or by judgment in an action undertaken for that purpose. The object is to enable each party to obtain title to and use of some definite portion of the property in severalty. There is no transfer of title; rather, property to which the parties already have title is divided among them. Thus partition transforms the right to common possession of the entire parcel into a right of exclusive possession of some portion of the property held in severalty. Methods of partition are as follows: (1) physical division of the property (2) sale of the property and division of the proceeds (3) partition by appraisal under which any of the parties may acquire the interests of the others at their value as determined in a court-ordered appraisal.
Q. I put my son on the title to my house as joint tenant because I wanted my house to go to him when I die. He got into a car accident and had no insurance. The other driver obtained a judgment against my son because he caused the accident and I fear that a lien is being placed on my residence. What can I do?
A You can do nothing. Adding your children to the title has serious consequences, such as the one you find yourself in. Your son could have inherited the house through a Revocable Living Trust where title to the house transfers to your son at your death and not before. Children sometimes get into trouble and if they are on title, any of their creditors can lien your house, because they own it too. Let it be a lesson to you and remove your son from title as soon as possible, if he assents to it. If he does not want his name to be removed from title, you are stuck.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-
Legal Eaze #44 Daughter Drivers License/ Defamation
Title: April 19, 2006
Q. My 16-year old daughter just got her driver’s license. Can she drive her siblings to school?
A. Vehicle Code Section 12814.6 just took effect on Jan. 1, 2006. It reads as follows: A driver’s license issued to a person at least 16 years of age but under 18 years of age shall be issued a “provisional” driver’s license, and it is subject to all of the following restrictions: During the first 12 months after issuance of a provisional license, the licensee may not do any of the following under accompanied and supervised by a license driver who is the licensee’s parent or guardian, a licensed driver who is 25 years of age of older, or a licensed or certified driving instructor. (a) Drive between the hours of 11 pm and 5 am. (b) transport passengers who are under 20 years of age. This means that if her siblings are under the age of 20 years old, she cannot have them as passengers.
Q. An ex-girlfriend of mine has spread nasty rumors about why we split up. She said to others that I left her because she was pregnant and that she had to have an abortion because I would not help her after the birth. I am sterile and cannot make any woman pregnant. I left her because I did not love her anymore. What can I do about this?
A Defamation is a false statement that is told about another person that harms that person’s reputation in the social or business community. To be held legally liable for defamation requires specific elements to be proven in court. Practically speaking, if anyone could be successfully sued just because they had some false and embarrassing statements said about them then many forms of media and political campaigning would have been sued out of existence some time ago. Defamation describes both “libel” and “slander”. Slander usually refers to defamation that is only spoken between people and libel specifically refers to defamation that is printed or written. Slander is typically more difficult to prove because there is no recording. For you to sue, the following requirements must be met: (1) it needs to be “published” or communicated in some form to a third party. (2) The statement must identify the specific individual who is claiming the defamation. (3) The statement must be false. (4) A plaintiff must also prove an appropriate level of fault on the part of the defendant who made the defamatory statements. This depends on whether the plaintiff is a public figure or a private figure. (5) Lastly, the plaintiff must have suffered some damages which can be remedied by the courts.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Q. My 16-year old daughter just got her driver’s license. Can she drive her siblings to school?
A. Vehicle Code Section 12814.6 just took effect on Jan. 1, 2006. It reads as follows: A driver’s license issued to a person at least 16 years of age but under 18 years of age shall be issued a “provisional” driver’s license, and it is subject to all of the following restrictions: During the first 12 months after issuance of a provisional license, the licensee may not do any of the following under accompanied and supervised by a license driver who is the licensee’s parent or guardian, a licensed driver who is 25 years of age of older, or a licensed or certified driving instructor. (a) Drive between the hours of 11 pm and 5 am. (b) transport passengers who are under 20 years of age. This means that if her siblings are under the age of 20 years old, she cannot have them as passengers.
Q. An ex-girlfriend of mine has spread nasty rumors about why we split up. She said to others that I left her because she was pregnant and that she had to have an abortion because I would not help her after the birth. I am sterile and cannot make any woman pregnant. I left her because I did not love her anymore. What can I do about this?
A Defamation is a false statement that is told about another person that harms that person’s reputation in the social or business community. To be held legally liable for defamation requires specific elements to be proven in court. Practically speaking, if anyone could be successfully sued just because they had some false and embarrassing statements said about them then many forms of media and political campaigning would have been sued out of existence some time ago. Defamation describes both “libel” and “slander”. Slander usually refers to defamation that is only spoken between people and libel specifically refers to defamation that is printed or written. Slander is typically more difficult to prove because there is no recording. For you to sue, the following requirements must be met: (1) it needs to be “published” or communicated in some form to a third party. (2) The statement must identify the specific individual who is claiming the defamation. (3) The statement must be false. (4) A plaintiff must also prove an appropriate level of fault on the part of the defendant who made the defamatory statements. This depends on whether the plaintiff is a public figure or a private figure. (5) Lastly, the plaintiff must have suffered some damages which can be remedied by the courts.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Legal Eaze # 41 Legal Separation/Small Claims Court
Title: March 22, 2006
Q. What is a legal separation?
A. When parties are uncertain as to whether or not they want to terminate/dissolve their marriage, they can file a proceeding for “legal separation” instead of “dissolution of marriage”. Marital rights and financial responsibilities may be decided by the family law court without dissolving the marriage. The parties can obtain a Judgment of Legal Separation but that does not terminate their marital status, in other words, they are still husband and wife even though legally they have divided all of the community property estate and have resolved child support and spousal support. Legal separation is an alternative to divorce and is generally sought out by the parties when there is breakdown of the marriage. It is sometimes used for religious or personal reasons, such as in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a spouse has a preexisting medical condition for which new coverage would not be obtainable.
Q. How do I file a Small Claims Court case?
A Most state courthouses have a Small Claims court Division. However, you must sue a defendant in the proper court. Generally, you must sue in the city where the defendant lives, or where they agreed to the disputed contract with you, or where the action took place that led to your injury. Businesses can also be sued in any city where they do business. The advantages of suing in Small Claims Court are 1) it's quick 2) it's cheap 3) it's informal 4) there are no lawyers. The disadvantages are 1) if you are the plaintiff and you are not happy with the Court's decision, you cannot appeal 2) no lawyers: if you are unable to present your case persuasively, you may lose. It sometimes helps to have a high-priced mouthpiece used to represent a party. You file your claim and serve the defendant. Have it served by someone other than you. Anyone over the age of 18 can do. Certified mail is sometimes used. The court clerk can do it for a small fee. But if the defendant knows it's a lawsuit, he/she may not sign it. Once served, you must attend the trial hearing. Make sure you have all your photographs and/or documents pertaining to the dispute. Now that you are in court, be clear and concise because the Judge does not have all to listen to you. The Plaintiff goes first, then the defendant. The Judge may ask each of you some questions, then will make a decision.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
Q. What is a legal separation?
A. When parties are uncertain as to whether or not they want to terminate/dissolve their marriage, they can file a proceeding for “legal separation” instead of “dissolution of marriage”. Marital rights and financial responsibilities may be decided by the family law court without dissolving the marriage. The parties can obtain a Judgment of Legal Separation but that does not terminate their marital status, in other words, they are still husband and wife even though legally they have divided all of the community property estate and have resolved child support and spousal support. Legal separation is an alternative to divorce and is generally sought out by the parties when there is breakdown of the marriage. It is sometimes used for religious or personal reasons, such as in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a spouse has a preexisting medical condition for which new coverage would not be obtainable.
Q. How do I file a Small Claims Court case?
A Most state courthouses have a Small Claims court Division. However, you must sue a defendant in the proper court. Generally, you must sue in the city where the defendant lives, or where they agreed to the disputed contract with you, or where the action took place that led to your injury. Businesses can also be sued in any city where they do business. The advantages of suing in Small Claims Court are 1) it's quick 2) it's cheap 3) it's informal 4) there are no lawyers. The disadvantages are 1) if you are the plaintiff and you are not happy with the Court's decision, you cannot appeal 2) no lawyers: if you are unable to present your case persuasively, you may lose. It sometimes helps to have a high-priced mouthpiece used to represent a party. You file your claim and serve the defendant. Have it served by someone other than you. Anyone over the age of 18 can do. Certified mail is sometimes used. The court clerk can do it for a small fee. But if the defendant knows it's a lawsuit, he/she may not sign it. Once served, you must attend the trial hearing. Make sure you have all your photographs and/or documents pertaining to the dispute. Now that you are in court, be clear and concise because the Judge does not have all to listen to you. The Plaintiff goes first, then the defendant. The Judge may ask each of you some questions, then will make a decision.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.
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