Title: August 27, 2008
Q: I sold my car to a guy on a Friday night. He wrecked the car two days later and called me for help. He was driving it without insurance and title had not transferred over to him yet. He gave all of my information to the person who hit him. I agreed to help him by making a claim with my own insurance company to help him fix the car. The car was considered a total loss. Now this guy is suing me for his loss. How can I prepare myself for the Small Claims Court hearing?
A: If you were still insured at the time of the incident and there is a claim/lawsuit against you, you should submit the claim/lawsuit to your own insurance company. One of the important duties of an insurance company is to defend their insured in a legal action where their insured and his/her driver are likely to be liable. Otherwise, you may want to consult with a civil litigator long before the hearing, since following some of his/her suggestions may take some time to put into place.
Q: While fighting a custody battle with my ex-wife, I was accused of numerous allegations such as child abuse, spousal abuse, philanderer, etc. While reading a section of California Civil Law, I read that by law, no one is allowed to defame another without evidence. Since no evidence was offered, do I have a civil lawsuit against the Superior Court since the Judge and clerks did not stop her from saying all these lies?
A. It is highly unlikely that you would be successful in such lawsuit. Judges are absolutely immune from suit for acts or omissions committed in their judicial capacity. As for the clerks in the Courthouse, they have no power to stop a person from saying whatever he/she wants in the courtroom or courthouse.
Q: I found finger and/or toenail clippings in my Del Monte chili. What can I do?
A. Throw it away and never buy Del Monte products again. Or call Del Monte company and complain. They’ll probably send you a flat of Del Monte chili cans to replace the first one. Go back to the store where you bought and demand your money back. If you thinking “Who can I sue to get damages?” you will have to prove what damages you suffered as a result of this find. If you did not suffer extensively from “gag-teritis”, it is unlikely that your lawsuit would be successful.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail your questions or comments to http://www.generalaw.com She will answer your questions to the best of her abilities.
Showing posts with label Small Claims Court. Show all posts
Showing posts with label Small Claims Court. Show all posts
Tuesday, March 24, 2009
Legal Eaze #95 Collecting From Defendant/Single Spouse Bankruptcy/Oral Contracts
Title: August 6, 2008
Q: I sued someone in Small Claims Court and I won. The Defendant appealed and lost the appeal. When can I start collecting from the Defendant?
A: Now seems to be a good time.
Q: Can only one spouse file for Bankruptcy?
A: It is not required that both spouses file for Bankruptcy. Only the filing spouse will be discharged of any debts. You must also realize that the non-filing spouse’s income will be considered in any tests of “income vs. expenses”.
Q. Is a verbal agreement on a $30,000 boat enforceable?
A. The law refers to unwritten agreements as “oral” contracts, not “verbal”. There are several limitations on the enforceability of oral contracts. One of them is the “Statute of Frauds” which is actually a set of statutes. One part of the Statute of Frauds package is found in the Uniform Commercial Code and covers the sale of goods by oral contract. Section 2201 of the Commercial Code states as follows: “Except as otherwise provided in this section, a contract for sale of goods for more than $500 is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in the writing”. Other paragraphs to UCC Section 2301 that make modifications and exceptions to the basic principle and there are other applicable laws, such as in the Harbors and Navigation Code. An important exception is that if the other party admits in a Court pleading that the contract exists, he is bound by it as though he signed it. Another problem with oral contracts is that it is difficult to prove the terms of such contract in Court. The defendant may argue that he had a different “boat” in mind, or a different price or payment terms, etc. Generally speaking, I would say that the agreement cannot be enforced unless there is an exception to the Statute of Frauds that covers it, and it is possible that there is such an exception.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Q: I sued someone in Small Claims Court and I won. The Defendant appealed and lost the appeal. When can I start collecting from the Defendant?
A: Now seems to be a good time.
Q: Can only one spouse file for Bankruptcy?
A: It is not required that both spouses file for Bankruptcy. Only the filing spouse will be discharged of any debts. You must also realize that the non-filing spouse’s income will be considered in any tests of “income vs. expenses”.
Q. Is a verbal agreement on a $30,000 boat enforceable?
A. The law refers to unwritten agreements as “oral” contracts, not “verbal”. There are several limitations on the enforceability of oral contracts. One of them is the “Statute of Frauds” which is actually a set of statutes. One part of the Statute of Frauds package is found in the Uniform Commercial Code and covers the sale of goods by oral contract. Section 2201 of the Commercial Code states as follows: “Except as otherwise provided in this section, a contract for sale of goods for more than $500 is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in the writing”. Other paragraphs to UCC Section 2301 that make modifications and exceptions to the basic principle and there are other applicable laws, such as in the Harbors and Navigation Code. An important exception is that if the other party admits in a Court pleading that the contract exists, he is bound by it as though he signed it. Another problem with oral contracts is that it is difficult to prove the terms of such contract in Court. The defendant may argue that he had a different “boat” in mind, or a different price or payment terms, etc. Generally speaking, I would say that the agreement cannot be enforced unless there is an exception to the Statute of Frauds that covers it, and it is possible that there is such an exception.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Legal Eaze #88 Medical Marijuana Use/Small Claims Court/Filing Taxes
Title: March 5, 2008
This is a re-visitation of my last column with regards to the question about how one can smoke medical marijuana in one’s apartment without incurring the wrath of the landlord or neighbors. I received a very instructive e-mail from an enlightened reader who suggested that a person with a prescription for medical marijuana find another method of getting it into his/her system, i.e. nebulizer, cookies, brownies, honey, breath strips and even ointments would not only be excellent alternate methods, but in fact healthier. A reputed marijuana dispensary would probably carry all of the above-mentioned products.
Q: What should I know in order to win my Small Claims Court case?
A: Get to Court on time, or even a little early. Have your case and evidence organized. The story of your case should be told in a chronological order, and your argument should be short and concise. Have your documentation in triplicate (one for the judge, one for opposing party and the last one for you to refer to). Use a highlighter to draw attention to relevant portions of your documents. Dress and behave appropriately. Practice your argument (practice makes perfect). Bring a witness willing to testify on your behalf. A live witness is better than a signed statement by that witness. It is difficult to cross-examine a written statement. Wait until the Judge tells you it’s your turn to speak. Do not interrupt the other party. You will be given an opportunity to respond, just be patient. Be reasonable. Judges have to listen to many people who think they are right all day long. Being reasonable will make you stand out, and eventually might win the judge’s favor, and by the same token, your case.
Q: I am hesitant to file my taxes because I owe money and I can’t pay it right now. Should I withhold from filing my taxes until I have the money to pay?
A. No, file your tax return or extension on time, even if you do not have the money to pay the taxes due. The penalty for failure to file your return on time is 5% of the amount owed for each month the return is late to a maximum of 25%. Save yourself a significant amount of money by simply filing your return on time. You can negotiate a payment plan to pay your taxes over several months, or make an Offer in Compromise. This is when you pay a lump sum to the IRS to resolve all outstanding taxes owed. This occurs when you are simply unable to pay back taxes. Such Offer can be made for a percentage of what you owe. Procrastination can only result in penalties and interest being assessed against you.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
This is a re-visitation of my last column with regards to the question about how one can smoke medical marijuana in one’s apartment without incurring the wrath of the landlord or neighbors. I received a very instructive e-mail from an enlightened reader who suggested that a person with a prescription for medical marijuana find another method of getting it into his/her system, i.e. nebulizer, cookies, brownies, honey, breath strips and even ointments would not only be excellent alternate methods, but in fact healthier. A reputed marijuana dispensary would probably carry all of the above-mentioned products.
Q: What should I know in order to win my Small Claims Court case?
A: Get to Court on time, or even a little early. Have your case and evidence organized. The story of your case should be told in a chronological order, and your argument should be short and concise. Have your documentation in triplicate (one for the judge, one for opposing party and the last one for you to refer to). Use a highlighter to draw attention to relevant portions of your documents. Dress and behave appropriately. Practice your argument (practice makes perfect). Bring a witness willing to testify on your behalf. A live witness is better than a signed statement by that witness. It is difficult to cross-examine a written statement. Wait until the Judge tells you it’s your turn to speak. Do not interrupt the other party. You will be given an opportunity to respond, just be patient. Be reasonable. Judges have to listen to many people who think they are right all day long. Being reasonable will make you stand out, and eventually might win the judge’s favor, and by the same token, your case.
Q: I am hesitant to file my taxes because I owe money and I can’t pay it right now. Should I withhold from filing my taxes until I have the money to pay?
A. No, file your tax return or extension on time, even if you do not have the money to pay the taxes due. The penalty for failure to file your return on time is 5% of the amount owed for each month the return is late to a maximum of 25%. Save yourself a significant amount of money by simply filing your return on time. You can negotiate a payment plan to pay your taxes over several months, or make an Offer in Compromise. This is when you pay a lump sum to the IRS to resolve all outstanding taxes owed. This occurs when you are simply unable to pay back taxes. Such Offer can be made for a percentage of what you owe. Procrastination can only result in penalties and interest being assessed against you.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Legal Eaze #80 Community Property and Divorce Jurisdiction/Insufficient Funds
Title: November 5, 2007
Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Monday, March 23, 2009
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.
Thursday, March 12, 2009
Legal Eaze #34 Wife on Drugs/Neighbor Kids Burned Down Shed
Title: November 23, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I have been married for 18 years and have three children. My wife has not worked since we got married. Lately, I have noticed that she is up all night and sleeps a good portion of the day. She leaves the house sometimes in the evenings and does not tell anyone where she goes. The children have been late to school because she falls asleep. Two months ago, she crashed the car because she fell asleep at the wheel. She had two of our children in the back of the car and one of them was pretty banged up in the accident. She gets calls 24 hours a day from very rude people who hang up when I answer the phone. What should I do?
A. I fear your wife may be on drugs. Her “stay-up all night and sleep all day” routine is very much that of a person addicted to “crystal meth” which has become the scourge of Kern County. Before another dreadful accident occurs, I would strongly suggest you file for legal separation and get temporary custody of your children until she seeks drug rehabilitation. Her “sleep at the wheel” episodes could be deadly to your children. There is a strong possibility that a judge would grant temporary custody of your children to you if he or she believes your children are in serious danger.
Q. Last summer, on July 4, my neighbor’s kids were playing with fireworks despite the existing County ban on such dangerous toys. One of the “firebombs” they used exploded and was projected right into a woodshed located on the back of our property. Half of the shed burned down and damaged most of the items stored in it, such as tools, barbecue implements and other things. Our neighbors promised to pay for the damage which amounts to around $8,000, including a new shed. They have not paid a cent yet. What can we do to get our money?
A. You will have to sue them. If you file a Small Claims Court action, you can only obtain damages up to $7,500 (that’s a one time amount, then afterwards only $5,000 can be sued for). If you want to recover the full $8000, you will have to file a lawsuit in Superior Court (limited jurisdiction). Such a lawsuit could take up to a year or longer because it entails far more than a Small Claims Court action, which is usually over and done with within two months. Make sure that you take photographs of the burned out shed and make a list of the damaged items that were stored inside as well as the price you would have to pay to replace these items..
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I have been married for 18 years and have three children. My wife has not worked since we got married. Lately, I have noticed that she is up all night and sleeps a good portion of the day. She leaves the house sometimes in the evenings and does not tell anyone where she goes. The children have been late to school because she falls asleep. Two months ago, she crashed the car because she fell asleep at the wheel. She had two of our children in the back of the car and one of them was pretty banged up in the accident. She gets calls 24 hours a day from very rude people who hang up when I answer the phone. What should I do?
A. I fear your wife may be on drugs. Her “stay-up all night and sleep all day” routine is very much that of a person addicted to “crystal meth” which has become the scourge of Kern County. Before another dreadful accident occurs, I would strongly suggest you file for legal separation and get temporary custody of your children until she seeks drug rehabilitation. Her “sleep at the wheel” episodes could be deadly to your children. There is a strong possibility that a judge would grant temporary custody of your children to you if he or she believes your children are in serious danger.
Q. Last summer, on July 4, my neighbor’s kids were playing with fireworks despite the existing County ban on such dangerous toys. One of the “firebombs” they used exploded and was projected right into a woodshed located on the back of our property. Half of the shed burned down and damaged most of the items stored in it, such as tools, barbecue implements and other things. Our neighbors promised to pay for the damage which amounts to around $8,000, including a new shed. They have not paid a cent yet. What can we do to get our money?
A. You will have to sue them. If you file a Small Claims Court action, you can only obtain damages up to $7,500 (that’s a one time amount, then afterwards only $5,000 can be sued for). If you want to recover the full $8000, you will have to file a lawsuit in Superior Court (limited jurisdiction). Such a lawsuit could take up to a year or longer because it entails far more than a Small Claims Court action, which is usually over and done with within two months. Make sure that you take photographs of the burned out shed and make a list of the damaged items that were stored inside as well as the price you would have to pay to replace these items..
Friday, February 27, 2009
Legal Eaze #26 Gossip/ Rental Occupant
Title: July 13, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I have lived in Tehachapi for 27 years. People I barely know have spread hate gossip about me shortly after I moved here. I could not afford to move away so I installed a video security system on my property. On several occasions my system was vandalized. On one occasion, I even have one of the youth who committed the vandalism on camera. Despite knowing who the culprits are, law enforcement officials will not help me obtain reimbursement for the cameras I have had to buy over and over again. Having to replace my cameras has been a costly ordeal for me. I am disabled and elderly and having trouble with the financial burden as well as the harassment suffered at the hands of my neighbors. Do you have any suggestions as to what I can do?
A. The police cannot help you recorder money you have lost in replacing your cameras. The only way available to you is to sue the one fellow you know has vandalized your video security system. If he is a minor, then you would have to sue his parents. If the amount claimed is below $5,000, you can sue in small claims court, the fastest and most cost-efficient way. As for the harassment, you are being the victim of, you can file a civil temporary restraining order (TRO) against the neighbors who are committing the harassment. You have to be specific as to the conduct you claim is harassing to you. If the court sees it your way, you will obtain the TRO but if the conduct you are complaining of does not rise to the standard requirements for the court to issue the TRO, you are out of luck.
Q. I have a rental occupied by a tenant who is causing a lot of trouble and noise. The neighbors are constantly calling the police on him and complained to me that he is disturbing their peace. He pays his rent on time and has been there a long, so what should I do?
A. I realize you probably like to keep him as a tenant, but if your neighbors decide to sue for breach of the “covenant of quiet enjoyment and disturbing their peace”, they might add you as a defendant because you are keeping your tenant in possession of your rental, and you are aware of the problems he has caused. I hope you have a lease. Read the lease carefully, and if you have a cause that says” no illegal activities allowed”, I suggest you file an Unlawful Detainer action against on that ground.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I have lived in Tehachapi for 27 years. People I barely know have spread hate gossip about me shortly after I moved here. I could not afford to move away so I installed a video security system on my property. On several occasions my system was vandalized. On one occasion, I even have one of the youth who committed the vandalism on camera. Despite knowing who the culprits are, law enforcement officials will not help me obtain reimbursement for the cameras I have had to buy over and over again. Having to replace my cameras has been a costly ordeal for me. I am disabled and elderly and having trouble with the financial burden as well as the harassment suffered at the hands of my neighbors. Do you have any suggestions as to what I can do?
A. The police cannot help you recorder money you have lost in replacing your cameras. The only way available to you is to sue the one fellow you know has vandalized your video security system. If he is a minor, then you would have to sue his parents. If the amount claimed is below $5,000, you can sue in small claims court, the fastest and most cost-efficient way. As for the harassment, you are being the victim of, you can file a civil temporary restraining order (TRO) against the neighbors who are committing the harassment. You have to be specific as to the conduct you claim is harassing to you. If the court sees it your way, you will obtain the TRO but if the conduct you are complaining of does not rise to the standard requirements for the court to issue the TRO, you are out of luck.
Q. I have a rental occupied by a tenant who is causing a lot of trouble and noise. The neighbors are constantly calling the police on him and complained to me that he is disturbing their peace. He pays his rent on time and has been there a long, so what should I do?
A. I realize you probably like to keep him as a tenant, but if your neighbors decide to sue for breach of the “covenant of quiet enjoyment and disturbing their peace”, they might add you as a defendant because you are keeping your tenant in possession of your rental, and you are aware of the problems he has caused. I hope you have a lease. Read the lease carefully, and if you have a cause that says” no illegal activities allowed”, I suggest you file an Unlawful Detainer action against on that ground.
Sunday, January 4, 2009
Legal Eaze #15 Fireplace/ Community Property
Originally Printed: February 23, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
Saturday, January 3, 2009
Legal Eaze #9 Common Law Marriage/ Propery Rental Shed, Verbal Agreement Loan
Originally Printed: November 10, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been living with my boyfriend for the last seven years. We hold ourselves as being married to the outside world, but we never actually got married. Is there such a thing as common law marriage in California?
A. No, California is not a common law marriage state. This means unless you have a marriage license, you are not married. However, had you been living for a number of years in another state that recognizes common law marriage, the State of California would have to honor the other state’s law. But if you have been living in California with your boyfriend for the last seven years, he is still only that, a boyfriend.
Q. I have a large shed which was unfortunately built half-way on my neighbor’s property. When the shed was built, approximately 12 years ago, I paid $2000 to my neighbor to give me an easement for the 75 square feet my shed occupies on his property. My neighbor has sold his property and the new owner wants me to move my shed back onto my property or he will destroy the portion that occupies his property,. What do I do?
A. Hopefully your easement was properly recorded with the county recorder. If you new neighbor causes you problems, you should seek an injunction to stop him from destroying your property. If he proceeds with his threats, you have recourse in filing a lawsuit for your damages. If you damages are not more than $7,500, you should use the Small Claims Court, which is much cheaper and faster.
Q. I learned of a verbal agreement Law in California. I loaned a substantial amount of money to my brother-in-law, but there’s nothing in writing. He promised to pay it back within two weeks, a promise he did not keep. It’s now been two months and he refuses to return my phone calls. Does this law pertain to this type of transaction?
A. I am not sure what law you are talking about, maybe Parol Evidence. You will need to sue your brother-in-law. However, before you do, you must show that you used money you loaned to him from your own funds. Your evidence must trace the money to funds you had in your possession, such as a bank account. If you had a witness present when the transaction took place, he can testify on your behalf. Otherwise, you may have to subpoena your brother’ in law’s bank records to prove he obtained the money.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been living with my boyfriend for the last seven years. We hold ourselves as being married to the outside world, but we never actually got married. Is there such a thing as common law marriage in California?
A. No, California is not a common law marriage state. This means unless you have a marriage license, you are not married. However, had you been living for a number of years in another state that recognizes common law marriage, the State of California would have to honor the other state’s law. But if you have been living in California with your boyfriend for the last seven years, he is still only that, a boyfriend.
Q. I have a large shed which was unfortunately built half-way on my neighbor’s property. When the shed was built, approximately 12 years ago, I paid $2000 to my neighbor to give me an easement for the 75 square feet my shed occupies on his property. My neighbor has sold his property and the new owner wants me to move my shed back onto my property or he will destroy the portion that occupies his property,. What do I do?
A. Hopefully your easement was properly recorded with the county recorder. If you new neighbor causes you problems, you should seek an injunction to stop him from destroying your property. If he proceeds with his threats, you have recourse in filing a lawsuit for your damages. If you damages are not more than $7,500, you should use the Small Claims Court, which is much cheaper and faster.
Q. I learned of a verbal agreement Law in California. I loaned a substantial amount of money to my brother-in-law, but there’s nothing in writing. He promised to pay it back within two weeks, a promise he did not keep. It’s now been two months and he refuses to return my phone calls. Does this law pertain to this type of transaction?
A. I am not sure what law you are talking about, maybe Parol Evidence. You will need to sue your brother-in-law. However, before you do, you must show that you used money you loaned to him from your own funds. Your evidence must trace the money to funds you had in your possession, such as a bank account. If you had a witness present when the transaction took place, he can testify on your behalf. Otherwise, you may have to subpoena your brother’ in law’s bank records to prove he obtained the money.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
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