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 judge. Show all posts
Showing posts with label judge. Show all posts
Tuesday, March 24, 2009
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.
Monday, March 23, 2009
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-
Wednesday, December 31, 2008
Legal Ease #1 Unemployment/Child Support/Identity Theft
Originally Printed: June 23, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I am unemployed and cannot pay my rent. My landlord wants to kick me out of my apartment. What can I do?
A. Unfortunately, there is little you can do other than to find another job as quickly as possible. You may attempt to pacify your landlord by asking for his/her patience while you are seeking employment or get a loan from family or friends to pay for your rent. If you are served with a “Three-Day Notice to Vacate”, disregard the notice and wait until your landlord files an unlawful detainer action against you to get you out. But, you may be faced with a judgment for rent and damages, which may include attorney’s fees, not to mention the fact that your credit report will reflect this judgment..
Q. I have been paying child support to my ex-wife for several years. The child support award was based on my previous income. I only earn half of what I used to earn because I was injured and cannot work the same job anymore. How can I lower my child support?
A. A Motion to the Court to modify your child support amount must be made as soon as your circumstances change, otherwise you will be charged for arrearages in child support, in addition to interest at 10 percent per year on the arrearages. Judges are powerless in showing compassion in their orders and must follow the law. The modification will be retroactive to the date the motion was filed with the court. Time is of essence, and this motion must be made quickly.
Q. I have been victimized by identity theft and I don’t know how to stop a creditor from collecting on a debt that I did not incur. What can I do?
A. The first thing you must do is to write to the creditor and let him know that you dispute the debt. This letter should be sent via certified or registered mail. Then you must write to the three credit agencies, Equifax, Experian and Trans-Union and inform them of the dispute with the creditor. Lastly, but not the least, file a complaint with the police department of your community and make an ID Theft Complaint to the Federal Trade Commission (www.consumer.gov) The FTC maintains a database of identity theft cases used by law enforcement agencies. Filing a complaint also helps such agencies learn more about identity theft and the problems victims are having.
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 moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I am unemployed and cannot pay my rent. My landlord wants to kick me out of my apartment. What can I do?
A. Unfortunately, there is little you can do other than to find another job as quickly as possible. You may attempt to pacify your landlord by asking for his/her patience while you are seeking employment or get a loan from family or friends to pay for your rent. If you are served with a “Three-Day Notice to Vacate”, disregard the notice and wait until your landlord files an unlawful detainer action against you to get you out. But, you may be faced with a judgment for rent and damages, which may include attorney’s fees, not to mention the fact that your credit report will reflect this judgment..
Q. I have been paying child support to my ex-wife for several years. The child support award was based on my previous income. I only earn half of what I used to earn because I was injured and cannot work the same job anymore. How can I lower my child support?
A. A Motion to the Court to modify your child support amount must be made as soon as your circumstances change, otherwise you will be charged for arrearages in child support, in addition to interest at 10 percent per year on the arrearages. Judges are powerless in showing compassion in their orders and must follow the law. The modification will be retroactive to the date the motion was filed with the court. Time is of essence, and this motion must be made quickly.
Q. I have been victimized by identity theft and I don’t know how to stop a creditor from collecting on a debt that I did not incur. What can I do?
A. The first thing you must do is to write to the creditor and let him know that you dispute the debt. This letter should be sent via certified or registered mail. Then you must write to the three credit agencies, Equifax, Experian and Trans-Union and inform them of the dispute with the creditor. Lastly, but not the least, file a complaint with the police department of your community and make an ID Theft Complaint to the Federal Trade Commission (www.consumer.gov) The FTC maintains a database of identity theft cases used by law enforcement agencies. Filing a complaint also helps such agencies learn more about identity theft and the problems victims are having.
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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