60-day notice to vacate premises
The law in California changed in January of 2007. Before that if a landlord wished to evict a tenant without cause, he or she could give a thirty-day notice. Now, if your tenant is a month-to-month tenant, you must give them 60 days notice to vacate. However, if the tenant has been in the unit for less than a year, you can give them a 30-day notice. There are exceptions to the 60-day requirement if the property owner is in the process of selling the property. However, there are requirements that must exist before this can happen.
The great thing about the sixty-day notice is that you need not give any reason to terminate the tenancy. But it must be in line with California law.
Protecting tenants when landlord is foreclosed on
Buried in a housing law signed this week by President Barack Obama are protections that will help thousands of renters stay in their homes — at least for awhile — after their landlord has been foreclosed on.
The law allows tenants to remain in their foreclosed rentals through the end of their lease and then 90 days after that before being forced to vacate by the lender. Renters without leases will have 90 days, a significant improvement over what most received before: almost no notice at all.
“Until this law was enacted, there had been no national protections for any of these households,” said Linda Couch, deputy director at the National Low Income Housing Coalition. “This gives renters time to adjust their lives.”
-msnbc.com
An ounce of prevention…
There are many people who fantasize about the “good old days” when you could seal a deal with handshake and walk away knowing you had the word of another person to do what they said they were going to do. While I do not doubt that our society has become less honest, this is probably in part a fantasy. The fact is, in Merry Old England hundreds of years ago there were people who lied, cheated, and stole from other business people. While you personally may have never been involved in such a problem, perhaps you should count yourself lucky.
A lawyer can solve your business problem once it has gone bad. Whenever a business owner comes into my office with a problem it is almost always the kind of problem careful planning and a small business attorney could have prevented. Your contracts and all the procedures in your business are like good nutrition to the human body: play your cards right and more than likely you will not have a problem.
When things go bad, that is where the litigator comes in. The litigator (often called a “trial attorney”) is a different type of attorney. If you were a country, they would be the army. Their purpose is to either frighten the other side into submission, beat them in battle, or minimize the damage and the terms of surrender. Having a good, honest lawyer will make all the difference in the world.
Handling lawsuits by oneself is actually fairly common in the US, and it isn’t always a bad idea. However, when someone comes into my office with a lawsuit they have already handled themselves, I rarely will take such a case. You could liken it to someone trying to fix their car by themselves without really having any training. For whatever reason (I blame television) people are under the impression that they understand the law. They think they can go in and simply argue the facts and the judge will see the light. This is, to be blunt, a really stupid point of view. The law is not like that at all. There are rules of evidence, rules of procedure, local court rules, rules for each individual area of law which may overlap. The California Code is a wall of books with hundreds and hundreds of volumes.
The term “Civil Litigation” is a misnomer. In fact, Probate, Family Law, Unlawful Detainers, etc. are all a type of civil litigation, each of which has it’s own specialty. Let’s say you have the good luck of obtaining a judgment in a court case. How do you collect it? Collecting judgments alone is a whole specialty unto itself.
The important thing about the law is knowing what you do not know. Hopefully your lawyer understands that. If your lawyer never has any doubt about any question you have, be wary. It is unlikely that this is true.
If you are a business person, consult a small business attorney. Otherwise, you may end up in my office and while that may be good for my business, it probably is not good for yours.
Evicting a tenant in California
If you are a landlord in California, you may believe that you can handle the matter yourself. After all, if they didn’t pay rent, don’t they have to go? Well, it depends.
It is far too complicated to explain all the subtle nuances, but I will do that later.
Here is how the process often works:
1. Tenant doesn’t pay rent.
2. Landlord gives gives three-day notice to quit or pay rent.
3. Tenant still doesn’t pay rent.
4. Landlord throws up his hands and goes looking for the next step. Usually this involves haggling with the tenant, trying to work it out, and this often succeeds. What happens when dealing with the tenant simply doesn’t work? Often they go down to the courthouse and ask the file clerks, who tell you to talk to a lawyer or refer you to legal aid.
5. The Landlord, like most of us, doesn’t have a pile of money sitting around. So he or she often tries to do it themselves. They buy books from Nolo Press on how to do their own Eviction, they search the internet for information, or the best option, they go to the local Legal Aid society.
6. Sometimes they find out their tenant has been there first, and that creates a conflict for Legal Aid. They cannot represent you both, so you are out of luck.
7. The next thing that happens is you file a Complaint for Unlawful Detainer. This has many of the rules like any other lawsuit, except that it is a “Summary proceeding”, meaning that it all happens very fast. It’s like a lawsuit speeded up.
8. Your complaint, which is based on your notice, must be absolutely perfect. There are a thousand nitpicky little rules that can frustrate you and make your complaint invalid. If your tenant lawyers up, they will first attack the notice. It is usually at this point that landlords realize they are in over their head.
9. Your complaint should be personally served on the tenant. At that point, they have five days to “answer” (that is a technical term for a type of pleading) the complaint. After that, you can take their default judgment and get a writ of possession. You take that to the Sheriff, who will evict your tenant in a few weeks.
10. In other words, even with an attorney your client will likely be in their for at least another month. If they lawyer up, they can be in their for months and this can turn into a giant black hole which your money is going down.
11. My legal advice here? Don’t do it yourself and don’t try to be cheap. Landlords do a surprisingly good job of helping themselves, but when things go bad, you need a professional.
Parental Alienation Syndrome and “brainwashing” children
In representing both fathers and mothers in family law cases, charges of child abuse can often present themselves. Child abuse is not uncommon in the United States. The third leading cause of death for children ages 5-14 is homicide. Because the victims are so innocent and the perpetrators are almost always a caregiver, the crime deserves harsh punishment. It is crucial in a family law case for parents to immediately report any child abuse to the authorities so that this extraordinarily evil act can be dealt with to the full extent possible.
Because the crime is so severe, false charges of child abuse are also an especially evil act. When the police, courts and CPS get involved in a case because a parent wants to use them as a tool to avenge themselves against another parent, it wastes precious time. Real victims of abuse are neglected while the individual fabricating these allegations goes on with their life. It is a level of selfishness that is hard for many of us to imagine, but it does happen.
Parental Alienation Syndrome is a controversial theory which holds that one parent, termed the “alienating” parent, effectively brainwashes the children against the other parent. Regardless of whether the American Psychological Association regards the research as scientific or not, the concept appears by many people to absolutely real. If you hear children saying things that only adults would say, or responding inappropriately to discipline, there may be a parent using the child selfishly to obtain the upper hand in a divorce. If your child says “you always are putting me down” when you tell him to put away his toys, this may be the result of one parent disparaging another.
Here’s an article on the subject.
Real estate fraud
Mill Valley real estate broker facing jail after admitting to embezzlement
By ASSOCIATED PRESS
Published: Wednesday, August 26, 2009 at 9:21 a.m.
Last Modified: Wednesday, August 26, 2009 at 9:21 a.m.
SAN RAFAEL — A Marin County real estate broker is facing up to eight years in jail after admitting to swindling nearly $1.4 million from six people in a series of financial scams.
Marin County prosecutors say Kirtikumar Menon pleaded guilty to eight felony counts Monday, including embezzlement from elders, forgery and other charges
According to prosecutors, he swindled his victims through a series of complex real estate and financial deals handled by his Mill Valley-based Argentum Real Estate and Mortgage Inc.
While operating the business, Menon also worked as an auditor in the Marin County Auditor-Controller’s Office.
He was fired from the department shortly after his arrest in February. Officials say he had no access to county funds.
The 41-year-old Menon is due to be Sept. 23.
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Fraud in real estate transactions is extraordinarily common because the transactions involve mountains of paper and a lot of mumbo-jumbo that ordinary people usually don’t understand. In fact, a lot of the people using that mumbo-jumbo don’t understand it either, they just rely upon their inability to make sense to convince you that they know what they are talking about and you do not.
If you suspect that you have been the victim of some kind of fraud relating to real property, a good place to start is the County Recorder where your property is located.
As an attorney, I find myself often doing detective work. I research the background of individuals involved in my cases. I check their criminal records, I look and see what property they own, and quite often I find irregularities.
Arrested by the police?
If you have been arrested by the police, more than likely you are going to have a lot of questions. That is why it is important to understand the process. A misdemeanor is a crime that is punishable by a sentence of less than a year in prison. A felony is a crime that is punishable by more than one year. Misdemeanors commonly end up with the defendant, if convicted, serving probation or a short jail term depending upon the crime and whether there is a previous criminal record.
1. The first step is your arraignment. An arraignment is your first court date, where your rights are explained to you and the charges which have been filed against you are presented to the court. The best thing to do, if you don’t have a lawyer, is explain to the court that you would like to get one. They will more than likely give you time for that. You should be aware that the District Attorney will likely ask for the harshest penalty possible when charging the crime.
2. You attorney will more than likely enter a plea of not guilty, waive time, and set the matter for another hearing while he or she explores the facts of the case and determines whether or not you can mount a real defense to the crime. By waiving time that means you are giving up your right to a speedy trial so your lawyer can investigate the facts.
3. Next, many attorneys file pre-trial motions, such as a Motion to Suppress Evidence under Evidence Code 1538.5. If there has been a violation of your rights, then evidence may have been illegally obtained and then cannot be used against you at trial. This may lead to the dismissal of the charges.
4. Finally comes the trial. The District Attorney presents his case and evidence against you, and you will be tried by either a judge or a jury. Many times if there is a weakness in the case, there will be a deal before trial or an outright dismissal. Unlike television, it tends to be far less dramatic and far more technical, with a layperson not understanding a lot of what is happening.
If you are convicted of a criminal offense, the results can be devastating. It may make it difficult for you to get certain jobs, may effect your credibility if you ever testify in court on behalf of another person, or even effect your business as often people doing business will check on such things.
Even if you feel like your certain to be convicted, it is doubtful that you have the information and knowledge to make that determination. If you were sick you wouldn’t diagnose and treat yourself. Why would you handle your own criminal case?
The fact is that an attorney can at the very least give you the peace of mind knowing that you had your case examined and that you did everything you could to fight it. There is no shortage of people why come into my office with previous cases that might have had a different outcome if they had an attorney from the start.
Starbucks settles regarding gift card ripoff
New Source: JusticeNewsFlash.com
Starbucks Coffee Company agrees to settle lawsuit with three California District Attorney’s Offices.
Government lawyers with several California District Attorneys Offices settle consumer fraud case with Starbucks Coffee Company.
Monterey County, CA–Monterey, Shasta, and Sonoma County District Attorneys’ Offices have agreed to a settle a lawsuit filed on behalf of jilted Starbucks customers with the Seattle based coffee company, Starbucks, for $225,000 as reported by TheCalifornian.com. According to reports, Starbucks, the largest coffee house company in the world headquartered in Pike Place Market in Seattle, violated a California law when they refused to refund customer’s gift card refund requests in Monterey, Shasta, and Sonoma Counties.
-Wallace Francis
The coffee powerhouse was investigated after Starbucks customers began complaining in April 2008 that company stores were refusing to provide cash refunds on gift cards with balances under $10 dollars when consumers requested the balance return. California legal investigators for several county government lawyer’s offices discovered Starbucks employees were demanding customers make a purchase to receive the cash back refund on the balances of their gift cards. The settlement agreement between Starbucks and the District Attorneys Offices will be divided and company leaders admit no wrong doing in the legal agreement. The coffee company will place signs in stores educating customers regarding their rights regarding gift card redemptions, conduct employee training, and place special cash register buttons to allow for redemption of the under $10 gift card balances.
California government lawyer news by legal news reporter Heather L. Ryan. News Source: JusticeNewsFlash.com – Press Release Distribution
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Gift card purchases are an area of consumer law that is rife with problems. Most people do not know that in California, gift cards and gift certificates cannot expire. Companies from other states rely upon this claim to pocket millions of dollars from unsuspecting customers, but it is illegal. If a company tells you that your gift card has expired, write them a letter telling them in California this is illegal and may subject them to litigation.
Choosing a lawyer
When a person chooses a lawyer many times they do so the same way they choose a lot of services. Convenience is important, as is price, and a multitude of other variables come in to play. A more sophisticated consumer may search the web and do research on which questions to ask a lawyer.
Usually clients launch right into their story. They often want to get things off their chest, and the lawyer is more like a therapist at that point. However, clients often do not know which facts are important and which facts are not. That is why your lawyer will almost certainly interrupt you and ask specific questions, which you need to have specific answers to.
The single most important question is this: what do you want the lawyer to do for you?
Your attorney is there to solve your problem. The question is, can he or she do it and are they the right person for the job?
Another important thing to examine is whether they know what they are talking about. Lawyers are experts at talking. They can sell water by the river and most people won’t know the difference. Often, they will hide this lack of knowledge behind a lot of jargon or simply refer to their decades of experience. The problem is, they may be a lousy lawyer, and a lousy lawyer with decades of experience. They may even have been disciplined by the state bar for ripping off clients or failing to do their job. Did you know that most attorneys who commit malpractice have more than ten years experience?
Personality is important. If you aren’t connecting with your lawyer, what makes you think the the police, the judge, the jury, and all the other people involved in the case will? As ridiculous as it sounds, it matters how you feel about your lawyer.
Does your lawyer have time for your case? Does he or she even know who you are or what your case is about when you call? Do they know what is going on? Do they return your calls?
The single most common complaint about lawyers is that they do not return telephone calls. Ask yourself if you want to pay $300 an hour to someone who won’t return your calls.
Probably the best way to choose a lawyer is to get a referral from a friend or better yet, another lawyer who can recommend you someone.
Persons convicted of domestic violence lose child custody
California Family Code Section 3044
3044. “(a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence.”
That means that if you are convicted of domestic violence, then the odds are stacked against you and more than likely you will lose total custody of your child. Someone who violently attacks a partner deserves to lose custody, and despite the harsh penalties, violence against partners continues.
Of course, not everyone who is accused of domestic violence is guilty of it. Fabricated allegations of child abuse and domestic violence are a common method for a partner to gain the upper hand in a contested divorce. This, of course, hurts people are really are victims of domestic violence because it takes valuable police time and court time to sort out the false charges from the real ones.
Many times, the accuser can actually be the assailant in the crime because a person defending themselves can leave bruises or marks while the perpetrator of the crime was unable to do so. Without an attorney who has the time to understand your case, investigate the crime, and bring forward all the evidence, a victim can not only end up with a criminal record, but lose all parental rights.
