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 car accident. Show all posts
Showing posts with label car accident. Show all posts
Tuesday, March 24, 2009
Legal Eaze #90 Rental Car Wreck/Pour-Over Will/Checking Credit Report/Power of Attorney
Title: April 16, 2008
Q. I rented a car recently. Because I was working when the car was due for return, I asked my brother to return it for me. My brother wrecked the car on the way to the rental car office. Now, I owe a lot of money. What do I do?
A. It depends on the rental contract you signed. If you had to name the authorized drivers when you entered into the rental contract, and your brother was not one of them, yet you let him drive the car back to return it, then it is your responsibility to pay for the damages. If you had insurance on the rental car, then let the insurance pay. If you had no insurance to protect you from this kind of occurrence, then shame on you.
Q. If I have a living trust prepared for me, do I still need a will?
A. Yes, it is called a “pour-over will” and is usually part of a Trust package. The pour-over will is a catch-all document, that will “catch” any assets you forgot or failed to transfer to the trust. Sometimes, an asset worth a substantial amount of money has not been transferred, and if the asset is worth over $100,000, the threshold amount to necessitate that a Probate case be opened in Court, hence it is a good idea to have a Pour-over will drafted so as to make your wishes known with regards to your un-transferred assets.
Q. Will checking my own credit report appear on the credit report as an inquiry for credit?
A. No. New credit applications will appear as an inquiry, but you have the right to verify all credit report entries to ensure they are accurate. Your own verification will not be used as an inquiry for credit. In fact, most credit card companies check your credit report every month. These checks are not reported as credit inquiries. Only new applications for credit are counted.
Q. When does a Power of Attorney for Medical Care go into effect, and how long it is effective?
A. It depends on how the POA was drafted. Most of them become effective when one or two physicians declare you incompetent. Some of them become effective on the date they are signed. If you do not wish a POA to be effective upon signature, then you need to make sure the POA contains a clause that only makes it effective upon your incapacity for making medical decisions about yourself, and are nul and void upon your recovery.
Maxine de Villefranche is an attorney and civil general practitioner with 15 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 rented a car recently. Because I was working when the car was due for return, I asked my brother to return it for me. My brother wrecked the car on the way to the rental car office. Now, I owe a lot of money. What do I do?
A. It depends on the rental contract you signed. If you had to name the authorized drivers when you entered into the rental contract, and your brother was not one of them, yet you let him drive the car back to return it, then it is your responsibility to pay for the damages. If you had insurance on the rental car, then let the insurance pay. If you had no insurance to protect you from this kind of occurrence, then shame on you.
Q. If I have a living trust prepared for me, do I still need a will?
A. Yes, it is called a “pour-over will” and is usually part of a Trust package. The pour-over will is a catch-all document, that will “catch” any assets you forgot or failed to transfer to the trust. Sometimes, an asset worth a substantial amount of money has not been transferred, and if the asset is worth over $100,000, the threshold amount to necessitate that a Probate case be opened in Court, hence it is a good idea to have a Pour-over will drafted so as to make your wishes known with regards to your un-transferred assets.
Q. Will checking my own credit report appear on the credit report as an inquiry for credit?
A. No. New credit applications will appear as an inquiry, but you have the right to verify all credit report entries to ensure they are accurate. Your own verification will not be used as an inquiry for credit. In fact, most credit card companies check your credit report every month. These checks are not reported as credit inquiries. Only new applications for credit are counted.
Q. When does a Power of Attorney for Medical Care go into effect, and how long it is effective?
A. It depends on how the POA was drafted. Most of them become effective when one or two physicians declare you incompetent. Some of them become effective on the date they are signed. If you do not wish a POA to be effective upon signature, then you need to make sure the POA contains a clause that only makes it effective upon your incapacity for making medical decisions about yourself, and are nul and void upon your recovery.
Maxine de Villefranche is an attorney and civil general practitioner with 15 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 #87 Medical Marijuana/Cell Phone Driving
Title: February 20, 2008
Q. I have a physician’s prescription for the use of medical marijuana to ease the back pain I constantly experience after undergoing several back surgeries. I live in an apartment and I fear that the management will eventually evict me for smoking it in my apartment. Already my immediate neighbors have complained that they can smell marijuana right through our common walls. What can I do to protect myself against a potential eviction?
A. Honestly, I cannot answer your question because the Courts have not yet addressed your situation. The Compassionate Use Act of 1996 (California law addressing the lawful use of medical marijuana) has been narrowly interpreted to protect the lawful use of medical marijuana only against criminal prosecution from the state. The problem is that the federal government still considers the possession and cultivation of marijuana to be illegal under all circumstances. This means you can still be arrested and prosecuted by federal authorities acting within the state. A state court has addressed the situation wherein a computer technician who failed a drug test administered by his employer, despite the fact that he presented a copy of his prescription with the failed drug test results. He claimed that he smoked on his own time and that it helped him better perform on the job. He was nevertheless fired. The Court sided with the employer. In your case, it could go either way, but if a lawful user cannot smoke in his/her own home, then where can he/she? If your landlord attempts to evict you, you might become the test case on this issue.
Q. Is it legal for me to use my cell phone while I am driving?
A. In California, it still is, although not for long. As of July 2008, you will no longer be permitted to use a hand-held type of cell phone while driving. You will still be permitted to use a hands free “speakerphone” type set up for cell phone calls as long as you have both hands on the steering wheel. There have been thousands of accidents due to cell phone usage while driving all over the country. As a result, various jurisdictions took a position that no use of hand-held cell phones while driving is safe use.
Maxine de Villefranche is an attorney and civil general practitioner with 15 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 have a physician’s prescription for the use of medical marijuana to ease the back pain I constantly experience after undergoing several back surgeries. I live in an apartment and I fear that the management will eventually evict me for smoking it in my apartment. Already my immediate neighbors have complained that they can smell marijuana right through our common walls. What can I do to protect myself against a potential eviction?
A. Honestly, I cannot answer your question because the Courts have not yet addressed your situation. The Compassionate Use Act of 1996 (California law addressing the lawful use of medical marijuana) has been narrowly interpreted to protect the lawful use of medical marijuana only against criminal prosecution from the state. The problem is that the federal government still considers the possession and cultivation of marijuana to be illegal under all circumstances. This means you can still be arrested and prosecuted by federal authorities acting within the state. A state court has addressed the situation wherein a computer technician who failed a drug test administered by his employer, despite the fact that he presented a copy of his prescription with the failed drug test results. He claimed that he smoked on his own time and that it helped him better perform on the job. He was nevertheless fired. The Court sided with the employer. In your case, it could go either way, but if a lawful user cannot smoke in his/her own home, then where can he/she? If your landlord attempts to evict you, you might become the test case on this issue.
Q. Is it legal for me to use my cell phone while I am driving?
A. In California, it still is, although not for long. As of July 2008, you will no longer be permitted to use a hand-held type of cell phone while driving. You will still be permitted to use a hands free “speakerphone” type set up for cell phone calls as long as you have both hands on the steering wheel. There have been thousands of accidents due to cell phone usage while driving all over the country. As a result, various jurisdictions took a position that no use of hand-held cell phones while driving is safe use.
Maxine de Villefranche is an attorney and civil general practitioner with 15 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 #86 Damage Responsibility/Owner In Absentia
Title: February 6, 2008
Q. I was driving on a rural road and I hit a patch of ice, ending up in someone’s fence. I damaged the fence so much that the cattle in the field could easily get out through the hole in the fence and spill out onto the road. What if someone hits the cattle, am I responsible for the ensuing damage?
A. Yes, you are responsible if the fence is not repaired as soon as possible and the cattle does get out and cause an accident. You will also be responsible for lost cattle, for the repair of the fence and anything else that happens as a result of your mishap. Those are the reasons why you must carry insurance. Of course, aside from your insurance company, you must also notify the property owner that you damaged his fence so that he can take the steps necessary to reign in his cattle. You must ensure that you do everything in your power to repair the damage you caused as soon as possible so as to not compound the consequences of your actions. The less consequences will cost less.
Q. My neighbor has a very big tree right between our houses. With all the snow we’ve had in the past week, a branch from the tree broke and fell on my garage. Not only is the roof of my garage damaged, I can’t use my garage at all right now because the garage door won’t open and close due to the damaged roof. The roof is hanging down, stopping the door from moving up or down. My neighbor does not live in that house during the winter. He lives somewhere in Los Angeles but I don’t have his phone number and I don’t know how to reach him. What do I do?
A. Now you understand why one should always get along with the neighbors and know how to reach them should something bad happens. First, call your insurance company. They will take the steps necessary to find out who owns the house next door, and get in touch with the owner, wherever he/she lives. Your insurance will subrogate the claim, i.e. make a claim against your neighbor’s insurance because it is your neighbor’s responsibility to take care of his property all year round, not just during the summer. It is difficult to deal with an owner in absentia, but not impossible. Good luck!
Maxine de Villefranche is an attorney and civil general practitioner with 15 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 a rural road and I hit a patch of ice, ending up in someone’s fence. I damaged the fence so much that the cattle in the field could easily get out through the hole in the fence and spill out onto the road. What if someone hits the cattle, am I responsible for the ensuing damage?
A. Yes, you are responsible if the fence is not repaired as soon as possible and the cattle does get out and cause an accident. You will also be responsible for lost cattle, for the repair of the fence and anything else that happens as a result of your mishap. Those are the reasons why you must carry insurance. Of course, aside from your insurance company, you must also notify the property owner that you damaged his fence so that he can take the steps necessary to reign in his cattle. You must ensure that you do everything in your power to repair the damage you caused as soon as possible so as to not compound the consequences of your actions. The less consequences will cost less.
Q. My neighbor has a very big tree right between our houses. With all the snow we’ve had in the past week, a branch from the tree broke and fell on my garage. Not only is the roof of my garage damaged, I can’t use my garage at all right now because the garage door won’t open and close due to the damaged roof. The roof is hanging down, stopping the door from moving up or down. My neighbor does not live in that house during the winter. He lives somewhere in Los Angeles but I don’t have his phone number and I don’t know how to reach him. What do I do?
A. Now you understand why one should always get along with the neighbors and know how to reach them should something bad happens. First, call your insurance company. They will take the steps necessary to find out who owns the house next door, and get in touch with the owner, wherever he/she lives. Your insurance will subrogate the claim, i.e. make a claim against your neighbor’s insurance because it is your neighbor’s responsibility to take care of his property all year round, not just during the summer. It is difficult to deal with an owner in absentia, but not impossible. Good luck!
Maxine de Villefranche is an attorney and civil general practitioner with 15 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 #81 Animal Abuse/Hitting Pedestrians
Title: November 21, 2007
Q. I have a neighbor who leaves his three dogs alone in his house for days at a time. I don’t believe these dogs are fed or given sufficient water during the time that he is gone. The dogs are very skinny, their ribs are showing and the house smells very bad during the summer when the windows are open. I feel terrible about these animals not being taken care of properly. What can I do?
A. Lately, Kern County has seen more than its share of animal abuse cases. You can call the Animal Regulation inspector and this owner will be cited, if indeed, his animals are abused. Not feeding your animals and not providing sufficient water is a form of abuse. Obviously, the dogs are relieving themselves in the house because they have no place else to go, hence the bad smell emanating from the house. However, if the dogs have no food and water, the house should not smell so bad since they would not be relieving themselves because they would have nothing to relieve themselves of. Kern County’s Dept. of Animal Regulation, despite its officers’ over the top reaction in certain cases, is a fairly efficient organization. They respond quickly to complaints or reports of abuse. If necessary, your neighbor’s dogs will be taken away from him if the abuse continues. It will be investigated thoroughly, you can be sure of that. Thank you for your concerns about helpless animals.
Q. I live in Stallion Springs and I take the 202 to go home every night around 6:30 PM. Now that it is dark so early, I see people walking along the 202 in the dark, with dark clothes on. What if I hit someone and I did not see that person until the accident happens. What will happen?
A. When you are driving a car, you must be ready for any and all conditions on the road. You might bear some responsibility for the accident depending on the conditions at the scene of the accident. Obviously an investigation would need to be conducted by the police to ascertain whether the pedestrian was at fault. A pedestrian has a duty of due care and must take precautions to avoid an accident. There are numerous statutes and municipal ordinances that provide guidance with regards to this. Violation of a statute or ordinance is evidence of negligence in virtually every jurisdiction. If the law is in your favor, the more power to you.
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 have a neighbor who leaves his three dogs alone in his house for days at a time. I don’t believe these dogs are fed or given sufficient water during the time that he is gone. The dogs are very skinny, their ribs are showing and the house smells very bad during the summer when the windows are open. I feel terrible about these animals not being taken care of properly. What can I do?
A. Lately, Kern County has seen more than its share of animal abuse cases. You can call the Animal Regulation inspector and this owner will be cited, if indeed, his animals are abused. Not feeding your animals and not providing sufficient water is a form of abuse. Obviously, the dogs are relieving themselves in the house because they have no place else to go, hence the bad smell emanating from the house. However, if the dogs have no food and water, the house should not smell so bad since they would not be relieving themselves because they would have nothing to relieve themselves of. Kern County’s Dept. of Animal Regulation, despite its officers’ over the top reaction in certain cases, is a fairly efficient organization. They respond quickly to complaints or reports of abuse. If necessary, your neighbor’s dogs will be taken away from him if the abuse continues. It will be investigated thoroughly, you can be sure of that. Thank you for your concerns about helpless animals.
Q. I live in Stallion Springs and I take the 202 to go home every night around 6:30 PM. Now that it is dark so early, I see people walking along the 202 in the dark, with dark clothes on. What if I hit someone and I did not see that person until the accident happens. What will happen?
A. When you are driving a car, you must be ready for any and all conditions on the road. You might bear some responsibility for the accident depending on the conditions at the scene of the accident. Obviously an investigation would need to be conducted by the police to ascertain whether the pedestrian was at fault. A pedestrian has a duty of due care and must take precautions to avoid an accident. There are numerous statutes and municipal ordinances that provide guidance with regards to this. Violation of a statute or ordinance is evidence of negligence in virtually every jurisdiction. If the law is in your favor, the more power to you.
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 #69 Hit and Run/Will
Title: May 23, 2007
Q. I attended a court hearing and parked my car on the street in front of the Courthouse because there was simply no parking available in the parking lot. When I came out of the hearing, my bumper had been torn from my car, the whole side of the car had been scraped and no one in sight that witnessed the accident. What am I supposed to do now?
A. The first thing you must do is to call the police and report the “hit and run” accident. Second, you have to call your insurance company and report the claim. Third, you have to arrange to get your car repaired. Fourth, hopefully your insurance will cover a rental car so that you have a vehicle to get to work and continue on with your life. If your insurance does not cover the rental car, you will have to pay for it out of your own pocket. Obviously, you do not know who hit your car, and unless you find a witness to the accident, you will never find out. Your own insurance will cover your loss. You will have to pay the deductible.
Q. I am young, poor and single. Why should I have a will?
A. If you are single and die without a will, all of your assets will generally go to your next of kin. If you do not have any children, and your parents are still alive, that means they will get your diary, the one in which you wrote all of your dirty secrets when you were a kid, your love letters, porn stash, naked photos or private sex videos of you that your ex-girlfriend took, items that you would rather have your parents know nothing about. You need to name an “executor”, someone you trust to dispose of the private things you would prefer be destroyed or go to a specific person. If you have a dog or a cat, your will can designate who will take care of your animals. It is important to specify how your pet will be taken care of and by whom. If you get married and have children after you write your will, you need to update it. One should always update his/her will when a major event occurs, or if you experience a significant change in your financial situation. You can also exclude anyone of your choosing from receiving anything under your will. Consider that a will, at the very least, is the insurance that your assets will go where you want them to go. I also advise anyone who owns real estate to have a revocable living trust.
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 attended a court hearing and parked my car on the street in front of the Courthouse because there was simply no parking available in the parking lot. When I came out of the hearing, my bumper had been torn from my car, the whole side of the car had been scraped and no one in sight that witnessed the accident. What am I supposed to do now?
A. The first thing you must do is to call the police and report the “hit and run” accident. Second, you have to call your insurance company and report the claim. Third, you have to arrange to get your car repaired. Fourth, hopefully your insurance will cover a rental car so that you have a vehicle to get to work and continue on with your life. If your insurance does not cover the rental car, you will have to pay for it out of your own pocket. Obviously, you do not know who hit your car, and unless you find a witness to the accident, you will never find out. Your own insurance will cover your loss. You will have to pay the deductible.
Q. I am young, poor and single. Why should I have a will?
A. If you are single and die without a will, all of your assets will generally go to your next of kin. If you do not have any children, and your parents are still alive, that means they will get your diary, the one in which you wrote all of your dirty secrets when you were a kid, your love letters, porn stash, naked photos or private sex videos of you that your ex-girlfriend took, items that you would rather have your parents know nothing about. You need to name an “executor”, someone you trust to dispose of the private things you would prefer be destroyed or go to a specific person. If you have a dog or a cat, your will can designate who will take care of your animals. It is important to specify how your pet will be taken care of and by whom. If you get married and have children after you write your will, you need to update it. One should always update his/her will when a major event occurs, or if you experience a significant change in your financial situation. You can also exclude anyone of your choosing from receiving anything under your will. Consider that a will, at the very least, is the insurance that your assets will go where you want them to go. I also advise anyone who owns real estate to have a revocable living trust.
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 #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 #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-
Thursday, March 12, 2009
Legal Eaze #37 Hepatitis from Restaurant, School Bus Accident
Title: December 7, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I heard that several people caught Hepatitis A from patronizing a local restaurant. A member of my family went there not long ago. I am very concerned for my family’s health. What is the restaurant’s liability for making people sick from contaminated food?
A. If getting Hepatitis A can be traced to contaminated food from this restaurant, the owner(s) of the restaurant will be liable for any damages sustained as a result of catching this dreadful disease. Infected individuals can unknowingly infect others two weeks prior to feeling ill themselves. So you are justified in being concerned. Damages the restaurant’s owners can be sued for include medical care, income loss, pain and suffering, mental anguish, loss of consortium, etc. Hepatitis A is a serious disease and kills approximately 100 people in this country every year. Tracing of the origins of the disease must be confirmed however before filing any lawsuits. So, you must be sure that the disease was contracted due to contaminated food or unsanitary conditions at this restaurant.
Q. My son rides on a school bus everyday. Because the bus driver has ill feelings towards my son, he must sit in the front row everyday. I was informed by him that because he is in the front row, he can see everything in front of the bus and what the driver is doing while driving the bus. The driver is constantly watching the rear of the bus through her back view mirror instead of watching where she is driving the bus. Not long ago, she almost hit a child who was right in front of the bus. I am fearful that this driver is going to cause an accident pretty soon while she has several children as passengers. What can be done about this?
A. First and foremost, I would let her supervisor know that her driving is dangerous. It is indeed the duty of a school bus driver to ensure that the kids in her care behave. But, her first duty is to ensure their safety. If supervision of the children becomes her primary focus, then she needs to have a driver who will focus on driving the bus. By notifying her supervisor, the school district will become aware of the dangers the children are facing while in this bus driver’s care. If an accident does occur, the school district will become liable through the “respondeat superior” theory which means that the employer becomes liable for damages incurred as a result of their employee’s negligence while she is working.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I heard that several people caught Hepatitis A from patronizing a local restaurant. A member of my family went there not long ago. I am very concerned for my family’s health. What is the restaurant’s liability for making people sick from contaminated food?
A. If getting Hepatitis A can be traced to contaminated food from this restaurant, the owner(s) of the restaurant will be liable for any damages sustained as a result of catching this dreadful disease. Infected individuals can unknowingly infect others two weeks prior to feeling ill themselves. So you are justified in being concerned. Damages the restaurant’s owners can be sued for include medical care, income loss, pain and suffering, mental anguish, loss of consortium, etc. Hepatitis A is a serious disease and kills approximately 100 people in this country every year. Tracing of the origins of the disease must be confirmed however before filing any lawsuits. So, you must be sure that the disease was contracted due to contaminated food or unsanitary conditions at this restaurant.
Q. My son rides on a school bus everyday. Because the bus driver has ill feelings towards my son, he must sit in the front row everyday. I was informed by him that because he is in the front row, he can see everything in front of the bus and what the driver is doing while driving the bus. The driver is constantly watching the rear of the bus through her back view mirror instead of watching where she is driving the bus. Not long ago, she almost hit a child who was right in front of the bus. I am fearful that this driver is going to cause an accident pretty soon while she has several children as passengers. What can be done about this?
A. First and foremost, I would let her supervisor know that her driving is dangerous. It is indeed the duty of a school bus driver to ensure that the kids in her care behave. But, her first duty is to ensure their safety. If supervision of the children becomes her primary focus, then she needs to have a driver who will focus on driving the bus. By notifying her supervisor, the school district will become aware of the dangers the children are facing while in this bus driver’s care. If an accident does occur, the school district will become liable through the “respondeat superior” theory which means that the employer becomes liable for damages incurred as a result of their employee’s negligence while she is working.
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..
Sunday, January 4, 2009
Legal Eaze #13 Road Rage
Originally Printed: January 12, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. This is about road rage. I was on my way home at 9 p.m. and came to a stop light at Tucker and Valley Boulevard. A big Ram 3500 truck was following me very closely and actually hit me in the back as I was waiting to make a right turn on Valley Boulevard. I moved the car into the first parking lot available while the truck was still behind me. I got out of the car to check and make sure there was no damage, but there was a lot of damage. There was a huge dent right in the middle of my trunk where his front grill imprinted itself. As I approached the driver of the truck who had not yet opened his window, I shouted I needed to see his driver’s license and his insurance card. He then opened his window and started screaming at me on the top of his lungs, calling me foul names and saying that I had no business driving so slowly on city streets. I was totally taken by surprise as I got off the 58 and was driving at a speed considered safe while driving in sleet and rain. I became scared because he appeared to be a big man totally out of control as he started to open his door. I thought he was going to attack me. As he was still screaming at me, I ran back to my car and drove away. Now I have a huge dent in the trunk of my car, and am angry about what happened. What do I do?
A. You failed to tell me whether you wrote down his license number. Tucker and Valley Blvd., is a pretty busy corner, wasn’t there anyone around? Do you have a cell phone? If you do, that was the time to use it and call the police immediately. This man was at fault. He apparently scared you out of getting the information you were entitled to. I am not sure why so many people feel invulnerable when they get into their big truck or SUV, and are literally ready to kill or drive over anyone who does not drive fast enough. First, you need to report this to the police, then report it to your insurance company. They will investigate the incident. If you did not write down the license plate number, you may be out of luck. If there is a next time, do not run away. Just sit in your car, call the police and write down the license plate number and take note of any characteristics the offending vehicle may have.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. This is about road rage. I was on my way home at 9 p.m. and came to a stop light at Tucker and Valley Boulevard. A big Ram 3500 truck was following me very closely and actually hit me in the back as I was waiting to make a right turn on Valley Boulevard. I moved the car into the first parking lot available while the truck was still behind me. I got out of the car to check and make sure there was no damage, but there was a lot of damage. There was a huge dent right in the middle of my trunk where his front grill imprinted itself. As I approached the driver of the truck who had not yet opened his window, I shouted I needed to see his driver’s license and his insurance card. He then opened his window and started screaming at me on the top of his lungs, calling me foul names and saying that I had no business driving so slowly on city streets. I was totally taken by surprise as I got off the 58 and was driving at a speed considered safe while driving in sleet and rain. I became scared because he appeared to be a big man totally out of control as he started to open his door. I thought he was going to attack me. As he was still screaming at me, I ran back to my car and drove away. Now I have a huge dent in the trunk of my car, and am angry about what happened. What do I do?
A. You failed to tell me whether you wrote down his license number. Tucker and Valley Blvd., is a pretty busy corner, wasn’t there anyone around? Do you have a cell phone? If you do, that was the time to use it and call the police immediately. This man was at fault. He apparently scared you out of getting the information you were entitled to. I am not sure why so many people feel invulnerable when they get into their big truck or SUV, and are literally ready to kill or drive over anyone who does not drive fast enough. First, you need to report this to the police, then report it to your insurance company. They will investigate the incident. If you did not write down the license plate number, you may be out of luck. If there is a next time, do not run away. Just sit in your car, call the police and write down the license plate number and take note of any characteristics the offending vehicle may have.
Saturday, January 3, 2009
Legal Eaze #11 Care for Elderly Parents/ Car Dealership
Originally Printed: December 15, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My parents are quite elderly. My father is already in a wheelchair from diabetes and arthritis, while my mother suffers from congestive heart failure. They live together on their 20-acre property and the closest neighbor is a couple of miles away. I fear for their health and safety and need to convince them this is not the safest way to live at their age. How can I convince them to change their lifestyle?
A. Do your parents still have all their mental faculties? If so, you need to speak with each one separately and convince each one to sign a Power of Attorney for financial decisions and Power for Attorney for healthcare. One way would be to ask each one: “Should anything happen to the other, how would you take the decisions that need to be taken in the absence of the other?” Listen to the response and if it does not make sense, formulate and make your argument using that response. Sometimes, elderly people can be very obstinate and not realize that their lifestyle can endanger their spouse. Your love for your parents should dictate how you need to approach them and prepare them to accept and sign Powers of Attorney. Such POA can be “springing” in other words are activated only if your parent’s mental ability is lacking according to a physician, or if one or both parents are physically incapacitated and unable to care for the other. POA’s wording can be very flexible.
Q. I purchased a used vehicle from a dealer that had a three-month warranty. The day after I took it off the lot, the brakes failed and I hit the back of another car that was stopped at a red light. I was raining pretty hard that day. I went back to the dealer and complained that my brakes failed and had a car accident. The dealer gave me the runaround and refused to do anything about the brakes, not to mention the $2,500 of damages to the other car. What can I do?
A. There are several issues here. First it was raining the day of the accident. How fast were you going and when did you start applying your brakes? Rain can render the pavement very slick, especially if it was the first rain of the season. Second how do you know that your brakes failed? It is against the law for a dealer to sell an unsafe used vehicle and that includes bad or no brakes. The accident was surely investigated by the police and the police report would certainly give you an idea of who was at fault and caused the accident.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My parents are quite elderly. My father is already in a wheelchair from diabetes and arthritis, while my mother suffers from congestive heart failure. They live together on their 20-acre property and the closest neighbor is a couple of miles away. I fear for their health and safety and need to convince them this is not the safest way to live at their age. How can I convince them to change their lifestyle?
A. Do your parents still have all their mental faculties? If so, you need to speak with each one separately and convince each one to sign a Power of Attorney for financial decisions and Power for Attorney for healthcare. One way would be to ask each one: “Should anything happen to the other, how would you take the decisions that need to be taken in the absence of the other?” Listen to the response and if it does not make sense, formulate and make your argument using that response. Sometimes, elderly people can be very obstinate and not realize that their lifestyle can endanger their spouse. Your love for your parents should dictate how you need to approach them and prepare them to accept and sign Powers of Attorney. Such POA can be “springing” in other words are activated only if your parent’s mental ability is lacking according to a physician, or if one or both parents are physically incapacitated and unable to care for the other. POA’s wording can be very flexible.
Q. I purchased a used vehicle from a dealer that had a three-month warranty. The day after I took it off the lot, the brakes failed and I hit the back of another car that was stopped at a red light. I was raining pretty hard that day. I went back to the dealer and complained that my brakes failed and had a car accident. The dealer gave me the runaround and refused to do anything about the brakes, not to mention the $2,500 of damages to the other car. What can I do?
A. There are several issues here. First it was raining the day of the accident. How fast were you going and when did you start applying your brakes? Rain can render the pavement very slick, especially if it was the first rain of the season. Second how do you know that your brakes failed? It is against the law for a dealer to sell an unsafe used vehicle and that includes bad or no brakes. The accident was surely investigated by the police and the police report would certainly give you an idea of who was at fault and caused the accident.
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