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.

Legal Eaze #25 Schizophrenia Again/Paternity

Title: June 29, 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.

A very nice lady wrote me a letter about the schizophrenic young man I talked about in my last “Legal Eaze” column. She informed me that there are very few available hospital beds for the mentally ill, and they are only available for the most seriously mentally ill, i.e. must be s serious danger to self, to others or gravely disabled, in other words cannot feed, shelter and dress themselves.

She explained that she has a son who has been ill with schizophrenia for 28 years and it has been a long and difficult road in attempting to provide the help and the care her son requires. She suggested that the only legal solution available to desperate parents is to obtain a restraining order against a mentally ill adult child. Obviously, this would entail homelessness or ending up in the criminal justice system. Our jails and prisons are filled with mentally-ill inmates, who in the past were cared for in state hospitals. Unfortunately, these state hospitals have pretty much been all closed, leaving the mental patients to fend for themselves. However, she mentioned Luann Baldwin, MSW, a family advocate with Kern County Mental Health Dept., who can be reached at (661)868-6109. Also mentioned is a group called NAMI (Nat’l Alliance for the Mentally Ill), which meets in Tehachapi once a month. This is a local, state and national organization providing support, education and advocacy for consumers and family members. For more information about this organization, call (661)822-5391. I apologize for previously misinforming my readers.
Q. I have been sued for paternity by a woman I dated last year after she broke up with her boyfriend of many years. She told me almost from the beginning that she was pregnant by this man. Now, she has sued me for child support. I am not the father of this child and I do not want to pay child support for a child that is not mine. What can I do?
A. You need to respond to the Paternity lawsuit within 30 days from service of process by explaining that you are not the father of the child and that the woman who is suing you admitted to you that she was impregnated by another man. Specify that you want a DNA test to prove that you are not the father. These DNA tests are very accurate and if you are telling the truth, you will be exonerated. Good luck.

Legal Eaze #24 medicated son/ bankruptcy

Title: June 15, 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.

Q. Our son resides with us. He is 22 years old and he suffers from schizophrenia. He has refused to take his medication on numerous occasions which is causing him to become aggressive, loud and obnoxious. He is a pretty big guy and my wife is sometimes fearful of him when she is alone with him in the house. He has never harmed her but sometimes I feel like it is only a matter of time before he does. I go to work every day and am away from our home from 7 a.m. through 7 p.m. five days a week. I don’t want my wife to feel like I am abandoning her and I don’t want her to be hurt by our son. What should we do?
A. You son need to be committed to a mental institution. What are you waiting for to do so? Are you waiting for your wife to be injured by your son? If your son refuses to take his medication, and that is the only thing that keeps him from acting out, then he is “an accident” waiting to happen. Until he realizes that taking his medication is what will keep him out of the hospital, he needs to be kept under control at all times. The medical staff at a hospital or a mental institution has the know-how to control a schizophrenic. You may also need to file a Petition for Conservatorship with the court in order to have the right to make medical decisions for your son. You may also need to manage his financial affairs, if he has any to manage, and becoming his conservator will give you that power.
Q. My credit card bills have become unmanageable. I am only working part-time now and I cannot keep a roof over my head and feed my family while continuing to pay for all our credit cards. My wife is eight months pregnant and cannot work anymore until she gives birth to our third child. What should I do?
A. File for bankruptcy, if you not done so already. I would advise you to hurry because the new bankruptcy laws will take effect in October 2005. Soon, it will be far more difficult for credit card debt to be discharged. In fact, many will be forced to file a Chapter 13, which entails repaying debt over time. Financial management classes will also be mandatory. The new bankruptcy laws will be disastrous for people who reached financial bottom through illness. Unfortunately, Congress members listed too closely to the credit card industry’s complaints. One can only expect that debtor’s prison will be reinstated next.

Legal Eaze #23 Used Car/Foreign Marriage

Title: June 1, 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.

Q. I purchased a car from the Salvation Army. The salesman said they did not have this year’s tag on it because the car license was due for renewal. He also told me there was something wrong with the brakes, but otherwise the car was fine. Today, I attempted to drive the car off the lot and a big puff of smoke came out the back. I got out of the car and a puddle of oil was behind the car. My brother, who was in the car with me, told me I shouldn’t drive this car because it is unsafe. I told the salesman I wanted my money back, but he refused and told me the Salvation Army was going to have to tow the car to my house. What can I do?
A. I suspect you bought this car “as is”, although you have mentioned nothing about the contents of your sales contract. I do not believe that the Salvation Army is considered to be a “car dealer”. Car dealers are bound by law not to sell cars that are unsafe to drive, which includes brakes that are not in good working order. When you are considering the purchase of a used vehicle with an “as is” sign on it, you should always be extremely careful and have the car checked by a mechanic before you buy it. I gather that you failed to do so. I am sorry that you had to learn such an expensive lesson. Read your sales contract and see if you have an escape clause in it which would allow you to return the car andyou’re your money back.
Q. Last year, I got married on foreign soil while on vacation. I wonder if my marriage is legal here in California and if not, should I re-marry under California law?
A. Failed to tell me in which country you got married and whether or not the marriage is considered valid in that country. Were you or your “husband” ever a citizen of this country? Typically, foreign marriages are valid if you meet the residency requirement of that country, among various other requirements. Each country has different requirements in order for a marriage to be valid. If both of you resided in California before and after the foreign marriage, it might be a good idea to at least have a civil ceremony here in California. If there are any questions in your mind that you are not married, then your “marriage” may not be valid and/or legal in this state.

Monday, January 5, 2009

Legal Eaze #22 Guardianship/ Refund

Originally Printed: May 18, 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.

Q. My daughter ran away with her drug-dealing boyfriend about a month ago. She left her 16-month-old baby with my husband and I and we have no idea of her whereabouts. It is incredible that we are left with total responsibility for her little boy. However, we want to make sure that she does not come back to pick up this child, only to have him around drugs and bunch of drug addicts. What should we do?
A. This theme comes back on a regular basis. You need to file a Petition for Guardianship with the County court in order to become guardians of this child. An investigation will be conducted by a court-appointed probate investigator to ascertain who would be first choice to become substitute parent(s) to the child. The Court often appoints grandparents as guardians of children left behind by drug-addicted parents. Once you are found to be fit as guardians, the Court will not allow a drug-addicted mother to again be responsible for her child until she cleans up her act. A guardianship is often temporary, until at least one parent of the child undergoes drug rehabilitation and can safely take responsibility for his/her child, but it also sometimes becomes a permanent arrangement. Drugs have become the scourge of today’s society and have affected hundreds of thousands of children across the world. They are the true victims. You are very brave to be willing to take care of this little boy and hopefully, your daughter will be thankful for what you have done for her son.
Q. I have a satellite dish to connect to the Internet, which promised immediate access, but is actually slower than dial-up. I constantly have to call in because have problems with connectivity. They charge an arm and a lef for the service, with which I am totally dissatisfied. I had to pay $700 for the dish. I want money back. Can I?
A. It is doubtful but it depends if you had a warranty and how long ago you had it installed on your property. Your story sounds so familiar. In fact, I went back to a dial-up connection because I was tired of paying $65 a month for this so-called “really fast connection”. Satellite dish is highly affected by the weather unfortunately, and of course customers are never told about these problems ahead of time. You best bet is to give your satellite company notice that you want to stop their “bad” service and find another way to connect to the Internet. Good luck!

Legal Eaze #21 Pregnant/ Collections Agency

Originally Printed: May 4, 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.

Q. I am 16 years old and pregnant. My boyfriend is 18 years old. My parents like him and do not want to press charges against him. My parents and I are worried that the hospital staff at the hospital I go to when it is time to give birth will call the police on my boyfriend. Can the hospital staff do that? Or it is up to my parents?
A. My understanding of criminal law is that no one goes forward with a criminal filing unless there is a complaining victim. Mandated reporting is for child abuse only, not for impregnation of a minor, even if in violation of statutory rape laws. Please note that I am a “civil” general practitioner and only handle minor criminal matters. You would be best served by asking an attorney who handles criminal matters of all kinds.
Q. There is a man from a collection agency who keeps calling me with regards to an old debt dating back over 10 years ago. I have told him to leave me alone but he keeps bothering me at home. Somehow, he found out my boyfriend’s telephone number and he calls me there as well. It is legal for this collection agency to keep calling me like this?
A. I believe the Statute of Limitations on the debt may have expired. This collection agency can no longer collect on the debt. If you had a written contract with regards to this debt, the Statute of Limitations expired four years after you entered the contract, or four years after you made the last payment on the debt, whichever comes later. If you did not have a written contract, then two years is the applicable Statute of Limitations period. The collection agency may be liable for unfair debt collection practices and it would behoove you to take down the name, address and telephone number of this collection agency so that you can obtain court redress at a later date. It would be difficult for you to sue a collection agency if you do not know its name and contact information.

Legal Eaze #20 Mobile Home/ House Renting

Originally Printed: April 6, 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.

Q. Last year, I had a brand new mobile home installed on my 2.5 acre parcel of land. Unfortunately, some of the piers installed under the house have cracked and are crumbling. I am afraid the others will do the same and the house will collapse. I believe the constant rain of the past two months may have been a contributing factor to this phenomena. What can I do?
A. You are short on details as to any warranties given to you by the manufacturer or the installer of the mobile home. Installation of a mobile home should come with a warranty of some kind, especially with respect to materials used and their compatibility with their end use. You need to look to the relationship between the manufacturer of your mobile home and the company that installed it on your land. Are they one and the same? How much experience did the installer have installing mobile homes, and with this particular type of mobile home? Is the land the mobile home installed on stable, or has the rain undermined or caused the soil to collapse under the house?
Q. I have been renting a house for the last 15 years. It is now time to repaint and to have the carpeting changed, as the existing carpet is torn and ragged and the paint is peeling in several areas. I have asked the owner of the house to do so but he refuses to spend any money. My rent is $1,300 a month and should not be ashamed of the conditions in which I am living. What should I do?
A. If no painting has been done in 15 years and the condition of the carpet is such that it presents a danger to you, the owner owes you new carpeting and a new painting job. If after you have given him a 30-day notice, he still refuses to do anything, you can proceed with doing the work necessary and deduct it from the rent. If the work costs more than $1,300, then do it over a longer period of time so as to get all of your money back from the rent. No one should be required to live with peeling paint and torn carpeting. Rent of $1,300 a month is a substantial sum and you are entitled to habitable quarters for that kind of money.