 Practical Legal Pointers
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Practical Legal Pointers
Is Your Legal Claim for Less than $25,000 ?
Part I
By Joann Deutch, Attorney © 2010
If so, then your civil case will be handled in the Los Angeles Superior Court of Limited Jurisdiction. The Limited Jurisdiction part is the kicker. A few years ago the California Court system was revamped. The goal was to make it easier to get Justice – technically - to expedite cases. If your case is under $7,500 you can use the Small Claims systems and represent yourself. If you’re a company, or from out-of-town the Small Claims system won’t work for you. You or your company have to rely on the Limited Jurisdiction division of the Superior Court system. Can you navigate this system without a lawyer? Probably not. So you ask yourself what’s the point? Well, the system is designed to keep both attorneys from wasting time and money in the “gamesmanship” that runs up legal fees. The Practical Legal Pointers: deal with some of the “Procedures” allowed in this special court system. By “Procedures” I mean the formal steps that we, as attorneys, need to be mindful of. A misstep can lead to disastrous results. Attorneys call these “Sanctions”. “How will the Court punish one side for breaking the rules?” Sometimes the Attorney or the client will have to pay money as a punishment, sometimes part of a case will be thrown out. One of the most useful special rules for California Limited Jurisdiction cases is California Code of Civil Procedure Section 94. Lawyers call it “The Rule of 35”. The 35 reminds them that they can only make a total of 35 queries from the first 3 items in the following list:
1. Interrogatories - no subparts - The term probably stems from interrogation, or the third degree, where pain was inflicted to get an answer – just a lovely concept don’t you think? 2. Demands to Produce documents or things 3. Requests for Admissions - no subparts
The next part of the list is: 1. One oral / written deposition [ with some technical restrictions] 2. One subpoena duces tecum [ Latin for - cough up the paperwork] 3. One request for Physical and/or Mental exam 4. One request asking for the identity of expert witnesses
In cases that involve more money lawyers tend to go a little crazy with the Discovery process - all of which costs a bundle of money. Notice the legal language that says “no subparts”. That refers to lawyers having played games in the past with the limitations. They would regularly argue that 1 question with 6 subparts is still one question. The Courts said “ Nope”. What’s the point of all of this you ask? Well a lawyer never wants to ask a question that they don’t know the answer to. While you, as the client, are SURE you know what they other side will say, we know better. Often times 2 people see the same thing, but remember it differently, they can attribute different meanings to words and actions. Scientific studies say that every time you recall a memory you change it somewhat. Not that you mean to, that’s just what the human brain does. That’s why I always preach, write it down. Write it down as it is happening. Write it down right after the accident, write it down right after the argument about who’s supposed to do what, or why the other person didn’t do what they promised. Judges recognize that written records of an event can hold more truthfulness and objectivity than your recollection. That’s why there are Exceptions to the Rules of Evidence. – But that’s a whole other discussion. Good Luck!
Joann Deutch is an attorney with offices in Studio City (818) 753-9922 - http://JoannDeutch.net Printed June 28, 2010 in the Government Center Gazette& Van Nuys News Press
Interns are Not Free Labor
By Joann Deutch, Attorney © 2010
Given the difficult state of the economy for young people, many more of them are seeking to hone their skills by taking positions as unpaid interns. At first glance the employer may be overjoyed at the prospect of more hands on deck to help in the business. BUT you need to be aware that the laws have seen some revisions and redefinitions which could potentially create extraordinary burdens for those who unwittingly hire unpaid interns. While you may feel you are doing a good deed for your friend’s child, here are facts that you need to be aware of. What’s the big deal you ask? If the interns are determined to be employees, then the employer will face sanctions including back pay, payroll expenses, worker’s comp premiums, and a possible $10,000 fine. It’s not how you define the intern, it’s how the California Department of industrial Relations defines the work relationship and experience that you’ve offered the intern. In April, the Acting Chief Counsel issued an Opinion Letter that explained what circumstances need to be in place in order to have an intern who is not an “employee”. Remember only an employee is protected by the Fair Labor Standards Act [ike minimum wages, etc]
Practical Legal Pointers Trainees/Students/Interns are not considered employees if they meet all six of these tests:
1. The training is similar to that which would be given in a vocational school even the students is using company machinery, etc. Interns can only occasionally and incidentally perform work done byemployees. 2. The more loosely supervised the student; the more likely an employment relationship exists. The training must be for the benefit of the trainees or students; 3. Students do not displace regular employees, and work under their close supervision; 4. Many employers try to form an alliance with an educational institution whereby the student gets credit for the internship. This helps, but does not seal the deal. The employer can derive no immediate advantage [saving money on salaries, etc.], and on occasion the employer's operations may be actually impeded. 5. The students are not necessarily entitled to a job at the conclusion of the training period 6. Both parties understand that the trainees or students are not entitled to wages for the time spent in training. It is best to get this in writing from the student and the educational institution you areaffiliating with.
And while you may believe that interns will not file claims against the company that graciously trained them, there is a Private Attorney General Act that allows individuals, even if they were not harmed, to file a lawsuit. You can expect that unions will be taking advantage of this opportunity to protect their membership.
Good Luck! Joann Deutch is an
attorney with offices in Studio City (818) 753-9922 http://JoannDeutch.net
Printed May 31, 2010 in the Government Center Gazette& Van Nuys News Press Your Sidewalk is a Mess!
By Joann R. Deutch, Attorney © 2010 You’d think to call 3-1-1- to get
the City to fix it right? Have you noticed that heaved sidewalks have been patched with gravel and tar? Not a very
attractive solution, but it gives the pedestrian plenty of notice that there is “trouble on the sidewalk ahead.
Well, no more. You’re on your own now! Fixing the City’s sidewalks had been an issue under discussion
by the City Council since 2005. On Monday the City Council voted out a solution. Why should
you care? The City has been generous in helping citizens repair and patch our sidewalks, and its taken the brunt of the
consequences of the “slip and fall” litigation. However, the obligation to repair sidewalks legally falls
on John Q. Citizen. Yup, under The State of California Improvement Act of 1911 all cities can require property owners
to repair the sidewalks abutting their property. In Los Angeles there was only one exception - property
owners did not have to repair sidewalk damage caused by city owned trees. On Monday April 19, 2010 our City Council
took care of the entire ball of wax. They voted out a new Ordinance. It no longer matters who or what caused
the damage to the sidewalk. It is the “duty” of the abutting property owner to fix the sidewalk and keep
them in good repair. Here’s what the City has planned:
But
remember you still have the legal liability of there is an accident. The City claims it can justify
its decision. They’ve spent $95 million on sidewalk repairs in the last 10 years. There are 4,600 more miles
of sidewalk that need to be fixed at a projected cost of $1.2 billion +. “That’s money taken away from
street repairs” they claim. But apparently in today’s sue happy Los Angeles, the “trip and fall”
litigation has also put a serious dent in the City’s budget. Originally suggestions were floated to fund these repairs
by hiking ambulance fees; developing a fee for on-scene paramedic treatment; an annual fee for emergency medical service;
higher brush clearance fees; burglar alarm fees; parking meter fees; or higher parking citations and the trash collection
fees. Seems to me that they have already tapped all those fees to fund other City services. The City is
not laying any new sidewalks. If you want sidewalks in your neighborhood, the City reminds you that the maintenance
liability is yours. Once built, the abutting owner has the responsibility to repair them in the event of earthquakes, etc.
Furthermore you will be liable for pedestrian accidents that could take place on your sidewalk if it becomes uplifted, cracked,
or broken in the years to come. And if you want to repair your sidewalk remember this is not the Wild
West. You’ll have to get a Class “A “Permit [more fees] from the Bureau of Engineering to replace your
sidewalk. But if the sidewalk damage is due to tree roots, it gets better. You have to call the Bureau of Street Services’
Urban Forestry Division. They’ll decide if they will issue a permit to remove the tree. Their policy favors
preserving all parkway trees. They won’t let you yank it out unless it is dead or cannot be trimmed or root
pruned to be made safe. Plan to get a Class “B” permit for this job. [Call 3-1-1]. Just so that you know, in 2005
when the sidewalk repair motion was first proposed, it was estimated that in the first year of this program 460 miles of
sidewalks would be repaired. Local wages would increase
by $102 million, creating 2,600 new jobs that would pay $39,000. Joann Deutch is an attorney with offices in Studio City (818) 753-9922
http://JoannDeutch.net Special Language for Contracts By Joann R. Deutch, Attorney © 2010 Sure
you’ve probably looked at lots of contracts, but do you read every single word? More importantly do you know
what every single word means? Let me take the mystery out of some clauses - that’s what
we lawyers call them – not mere paragraphs. Here’s an example: “Any claim, dispute or
other matter in question [1] arising out of [2] or related to [3] this Agreement shall be subject to mediation [4] as a
condition precedent [5] to arbitration or the institution of legal or equitable proceedings [6] by either party.
Any mediation shall be in accordance with the Rules of the American Arbitration Association [7], effective as of the date
of this Agreement.” The numbers point out the Special Contract Provisions: I’ll explain. [1] [2] [3] Without these provisions, the Court would only allow a lawsuit to decide a dispute over “what does the language of the contract really mean”. You could sue for breach of contract, but you won’t have the Mediation requirement. However, with this specialized language in place any dispute about the meaning of the contract, or the duty of the parties is now subject to the rules that the contract has set out. For example, if one side does not fulfill its obligations this legal dispute will also be covered by the terms of the contract. [3] This provision means that you can’t sue the other side in Court until you’ve made an attempt at Mediating the dispute. You’ll need an impartial person sitting in the room for this one, but the Mediator will not have the power to force a resolution on an unwilling party. [4] [5] The term Condition Precedent has a particular application in a legal setting. Iff you don’t do something you will give up certain rights. Here it means if you don’t participate in Mediation, you are forbidden from seeking Arbitration, or filing a lawsuit. This provision also tells you that there are special rules that will control how the Mediation will be conducted. [7] And finally this phrase means that whatever
the rules are when you sign this contract will be the ones that will govern the Mediation. So if you don’t Mediate
for years after you’ve signed the deal, and there are new rules, the old rules are the ones you’re going to
proceed under. As you can see my explanation is longer than the contract clause itself. You understand
that often each word has special meaning, and you need to be aware. While I’m on the topic of
settling disputes without litigation I’d be remiss if I didn’t point out that Arbitration, which is what people
are more familiar with is yet another way to settle a dispute without litigation. In Arbitration you can decide beforehand
that the Arbitrator’s decision will be “Final and Binding”. If you agree to that, the case is over.
Period. You’re done. If there is no such language it means that either side can appeal the decision of the Arbitrator
to a Judge. Good Luck! Joann Deutch is an attorney with offices in Studio City (818) 753-9922 http://JoannDeutch.net
Are
Attorneys Fees Standing in the Way of Getting Justice? By Joann R. Deutch, Attorney © 2010 How many times have you said to yourself “I’m gonna sue!” Exactly how many times have you actually done it? Why? - the legal fees are holding you back from hiring an attorney. Sometimes you have to ask what happened to the backbone of the American way of life – you know - “Justice for All”. Why not you? Attorney’s Fees get in the way of you being able to hire an attorney to “right
the wrong” that has been done to you. I’m not going to get into all the attorney jokes – everyone
loves to hate attorneys until they need one. Practical Legal Pointers: I’m going to play Devil’s Advocate here for a minute. Sure you’re mad at the other person. They stiffed you. Now you have to decide if you want to pay good money to chase the money you’re owed. What lawyers hear all the time is “I’ll be glad to pay you out of the money we get from the other side”. What you’re asking for is a “Contingency” fee arrangement. You are telling the lawyer that you are not confident enough about the outcome or probability of recovering money, but you want the lawyer to take your odds that there might be a payday at the end. So for broken contracts and agreements you have a tough sell on your hands. Attorneys do regularly take “Contingency” fees for cases where there is an insurance company involved. Why? Because there is a greater probability of recovery. Those legal fees range from 33% to 60% of the amount recovered. Why so steep a price? Because the lawyer doesn’t earn any money until the end. If you’ve been involved in one of these cases you know there are papers to present to the Court, depositions, and a lot of work that is invisible to you – even though you get tons of papers from your attorney which you promptly throw away. What are the other types of cases where the attorney doesn’t expect you to pay the fees? Worker’s Compensation, Disability, Discrimination cases that are before a government agency. Why is that? Because there are “Attorney’s Fees” provisions built into the law. That means that the attorney will get paid a flat fee by the agency once you are paid. That brings me to attorney’s fees in general. If you have a written agreement chances are there is an “Attorney’s Fee Provision”. In this case, the side that wins is entitled to “reasonable” attorneys fees. That’s not the same as “all of your attorneys fees”. Yup - there’s fine print. The Court decides what’s reasonable, and you may get stuck paying the difference. So my advice if you’re drafting an important agreement, pay the attorney in the beginning to get it right. Look for a provision that says, “The prevailing party is entitled to actual attorney’s fees.” An attorney will ask you to pay up front, and the amount awarded by the Court will come back to you. There is a general law that the “prevailing party” is awarded attorneys fees, but it’s at the discretion of the Court. It’s not money in the bank. I know, we’re a tough crowd. We are selling invisible services which are difficult to value. What if you kinda told the story “sort of” to the attorney. In Court it turned out that the part you left out was important, and you loose. In a contingency arrangements your attorney would take it in the shorts. Tends to make us skittish. Good Luck! Joann Deutch is an attorney with offices in Studio City (818) 753-9922 http://JoannDeutch.net
Don’t be a Jerk at Work
By
Joann R. Deutch, Attorney © 2010 People do stupid stuff at work all the time. Usually thinking “The Boss Will Never Know”. Why does that stuff make your boss so wild? He knows what you don’t. The legal theory is called Respondeat Superior and the boss knows all about it. If an employee uses bad judgment, this legal theory places the financial responsibility on
the shoulders of the company. Example? You drive a company car and decide to take a detour to go home and get a clean
shirt. And you have an accident. Ordinarily you would be on a mission for yourself, but because you had the
company car they are going to take the heat. If you had called your boss to ask permission would he have said “Okay?”
Practical Legal Pointers This is where we lawyers get involved. The issue will be whether you were acting “in the scope of your employment” – was it part of your job? The law will look at the following questions:
This brings you to why there are so many company rules on picky little stuff which you want to ignore. The law looks at you as the agent of your employer. All those rules are the company’s way of controlling the definition of “actions which fall within the scope of employment”. Why? Because the company has insurance to protect itself and doesn’t want its bone head employees creating liabilities for them that can cost them a lot of money. The legal theory of Respondeat Superior extends liability to the company for the actions of its employees if they might be expected to happen in the business- if you need to do something to get the job done. But say the accident was because the employee had road rage. That could turn out to be the employee’s responsibility. When you break these rules you might find yourself responsible for the consequences. These days small businesses can’t afford to take the chance that an employee will mess up. If
you were hurt in the accident are you covered by Worker’s Comp? Maybe not because you were not doing your company’s
business. Don’t get yourself in this kind of jam. Respect the rules at work. Good Luck! Joann Deutch is an attorney with offices in Studio City (818) 753-9922 http://JoannDeutch.net
You Didn’t Show Up for Your Court Date – Now Whaddya Do?
By Joann Deutch, Attorney © 2010
Once you get a traffic ticket even for an infraction, many people are under the mistaken belief that if you manage not to show up on the day your ticket is set for a hearing, that the next time you show up, the officer who issued you the ticket will not show up in Court and you can "beat" the ticket. You are so wrong, and man ‘o man will it cost you! Here are your Practical Legal Pointers -- When the cop makes you sign the traffic ticket, he tells you that you are not pleading guilty to the ticket, but you are promising to come to Court on that specific day. That first appearance is not a trial. The cop who issued the citation is never there. It’s an arraignment hearing. It’s you and the Judge. You can plead Guilty, Not Guilty or Nolo Contendre [Nolo] – Latin for your don’t disagree, but you’re not pleading guilty – but know that for purposes of legal stuff it’s treated like a guilty plea. If you think you’re all smart and stuff and decide it’s better not to appear, an additional charge will be added to your ticket for Failure to Appear under Vehicle Code 40508A. There are only 3 acceptable reasons for not appearing: 1. You were in the hospital 2. You were in the military on active duty 3. You were in jail Anything short of these reasons is not a "showing of good cause". If you are not going to appear on your original arraignment date it’s best to come to the Court any day before that hearing date and talk with the clerk. If you don’t get a written piece of paper that changes your appearance date, you can count on having a problem, so insist that the clerk give you paperwork, or plan to change your plans. Now you have the fine for your original violation and another fine for the Failure to Appear, and the possibility of a special assessment of $ 300.00. It gets worse. You can have a Bench Warrant issued against you. If you get stopped for any reason, you’ll have to post bail to be released. This mess you’ve gotten yourself into can get even worse. The fine can be turned over to "collections". Your license can be revoked, your car can be impounded; there are sanctions upon sanctions; penalties; fines and assessments, worse than anything the IRS has dreamed up. Traffic tickets by themselves are not too expensive, but the assessments that go with them make them very difficult to pay. But waiting and trying to "game the system" doesn’t help. If you plead Guilty you pay the fine and assessments, go to Traffic School, or do Community Service. Plead Not Guilty and you pay the same amount in bail so you can even get to a trial, it’s like having to "ante up". Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
Help! The IRS Is After Me !
By Joann Deutch, Attorney © 2010
Trouble with the IRS? It’s not my fault ! Your spouse made a mess of it. Your paycheck, less tax liens - is next to nothing. The money in your checking account has been snatched by the taxman. How did this happen? When you and your spouse file a Joint Tax Return, the tax obligation is a called Joint and Several liability. Whaddya do? Practical Legal Pointers - You might be able to get off the hook. Even if you did sign the return. Here’s how. The IRS has a not-well-known category called “Innocent Spouse”. If you qualify, even though you and your spouse have come up short on paying taxes, you can be excused the liability. The entire tax obligation will be your spouse’s.
Here’s what you need to prove to the IRS: “1. You filed a joint return. 2. There is an understated tax on the return that is due to erroneous items of your spouse. 3. You can show that when you signed the joint return you did not know, and had no reason to know, that the understated tax existed .
4. Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understated tax.”
To figure out if you qualify you need to know about the definitions for the terms the IRS is using. What’s an Understated Tax? 1. It’s when you and your spouse didn’t report all of your income OR, 2. Your spouse claimed deductions that were stretch of the imagination. The IRS gives the following example: “Your spouse claimed $4,000 for security costs related to a home office. It was actually veterinary and food costs for your family’s two dogs.” Here’s another common example: In Hollywood people try to deduct their wardrobes all the time. An actual case said NO WAY: A male model who attempted to deduct his entire designer wardrobe on the grounds that he needed to look great every time. [In fact if clothes are suitable for everyday where, they are not deductible.] 3. You need to prove to the IRS that you didn’t know about the incorrect tax information your spouse filed. And you can’t play stupid. If you should have known - then you’ll be liable. An example: Your spouse won $25,000 in Vegas. You didn’t even know your spouse went to Vegas. The money never went into any bank account you saw, and there was no flashy spending that was different from what your spouse usually did. And the last set of factors that the IRS considers in evaluating whether to grant you Innocent Spouse status: Did you receive a significant benefit either directly or indirectly, from the understated tax? If your spouse cheated on your taxes and you’re driving a new car with the savings, forget it! Will you suffer a significant economic hardship if relief is not granted? Did your spouse/former spouse desert you? Were you and your spouse divorced or separated? Was your spouse/former spouse an abuser? – either emotionally or physically, such that you were unlikely to challenge their authority. These lists are not exhaustive. They give you an idea of the issues. Log on to : www.irs. gov . Click on “Individuals,” “Tax Information for Innocent Spouses”. Good luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
Fair Debt Collecting – Protect Yourself
By Joann Deutch, Attorney © 2010
Times are hard. You just received your first nerve-jangling call from a debt collector. You can probably count on it not being your last. We’ve all heard some pretty wild stories about the behavior of these folks. The good news is that there are rules about what these callers [or letters] can say. The Fair Debt Collection Practices Act spells out your rights. For The Practical Legal Pointers you need to know what your rights are. My best advice - take notes. You can bet that the person calling is taking notes [it will be company policy]. What you can’t count on is that those notes will say the same thing you understood from each conversation. 1. The collector is obligated to identify themselves [every time they call], and give you the name of the company they are working with. The first thing to do is ask for an address and phone number. Don’t be surprised if they hang up on you. Make notes anyway. a. They can use an alias. But, they must be the only person at that employer who uses thatalias. You’re entitled to be able to identify the person who actually called you through the company records. Their sense of humor? Someone will always be a “Mr. Green” - as in your money is green. 2. Within 5 days of that first call, expect to get a letter about the debt. It should notify you that you have the right to dispute the bill. Don’t miss your deadlines. I know everyone always wants to deal with these things by phone, but trust me, you want to do this in writing. You want a copy of your letter. You want to have at least “Delivery Confirmation” from the post office. Your letter gets you the following breathing room - a. “Upon receipt of the debtor’s notice of a dispute or request to verify the existence or amount of a debt, or obtain information relating to it, the debt collection agency must stop efforts to collect the debt until it obtains the required verification and provides it to the debtor.” b. And from there it is the “..[o]bligation of debt collection agency to report dispute to credit reporting agency. … the debt collection agency must notify any credit reporting agency to which it has reported adverse credit information that the debtor has registered a dispute, so that the credit reporting agency can investigate the dispute.” 3. And the following is a list of a few things the debt collector can not threaten you with: take action that it does not actually intend to take take action that it cannot lawfully take garnish wages without a court order seize Social Security benefits seize property without a court order arrest anyone unless the action is lawful and is in fact contemplated assign the debt to a third person, accompanied by a false representation that the assignment this would cut off a defense file suit if it does not intend to do so The penalty for violating any of these things is between $100 and $1,000. You need to file a Small Claims complaint and make your pitch to the Judge. If the collection agency has been total jerks and done lots of things that are wrong, I say try to get penalties for each thing they did that was not allowed. Yup. You’ll need those notes. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
FAQs about Child Support
By Joann Deutch, Attorney © 2010
I’m goanna call this a Quick Reference Guide for Child Support in California. If you’re not caught in the quicksand, you surely know someone who is. So what’s the most important question? “How much Child Support can I get? How much Child Support do I need to pay?” The Practical Legal Pointers - Know what you’re up against. Here’s what the Child Support Formula is based on – Your Income. Here are the facts behind the formula. What the Court considers “Your Income” Wages Tips Commission Bonuses Self-employed Earnings Unemployment payments Disability & Worker’s Comp Interest Dividends Rental Income Disability & Social Security Income Payments due you - car accident payments/lottery winnings, etc. It’s not just the money you report on your tax returns. It’s supposed to be everything -doesn’t matter if it’s reported or taxed. The second part in the formula is where the Court determines your “Disposable Income” – The Court says you can deduct the items listed below from the total from the list above. This final number gets plugged into the formula to determine Child Support Taxes Mandatory Union Dues Health Premiums Child Support actually paid (for other children) Cost of raising children from another marriage What’s missing? Like - your mortgage payment; your car payment; your car insurance. That’s going to hurt. You can work this formula for yourself by logging on to:https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator. Yup - The truth is definitely ugly. But these are the basics facts. This explains much of the wrangling over how much time the non-paying parent wants/needs to spend with the kids in order to reduce Child Support payments. So what’s left to argue over? Other than the fact that the Child Support is either not enough to live on, or too much to pay? There is a guidebook that you can read to learn about some of the most common exceptions to this formula. Search for the California Guide Child Support Calculator User Guide. The Guide talks about exceptions like: Your “Disposable Income” will be modified by catastrophic illness The child support continues until the kids are 18. Beyond that if they are still in school Disability income only considers the employers contribution – not what you’ve already paid out of your check. You’ll have to pony it up on investments even if they are tax free Do you really need to pay an attorney fees equal to the cost of sending your kid to college? Well there is some fine print that might change the outcome where lawyer fees are necessary. The classic example is where one parent runs a company and/or “the real income” is a slippery number. A lawyer is going to try to establish “Disposable Income” from information about what I call “The Money Spent Theory”. Instead of looking at tax returns which everyone tries to fudge, I’d want to look at what cars does he/she have; the mortgage note; does the family travel; what are the monthly credit card bills; what other possessions does the family have that represent income spent? If you can spend it, someone has earned it. This is a plain and simple way of getting at what the spouse actually has to spend. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net He Should Pay the Whole Bill
By Joann Deutch, Attorney © 2010
You’ve been in a car accident. The person has insurance. You think – okay - I’m covered. You’re steaming mad. The insurance company is only going to pay 75% of your medical bills, and the repair to your car. “This stinks”. How’d you get here? Practical Legal Pointers - The car accident falls under the category of “Legal Tort” – not the dessert torte. When the lawyers are asking you questions, this is what we are hunting for: 1. Did the other person owe you a Duty of Care ? 2. Did that person breach that Duty of Care ? 3. Were you injured ?
And the one that’s the kicker – 4. Was the other person’s breach what caused the accident ? The tricky part about Number 4 is whether the accident and injury were directly caused by the other person’s actions and choices. Courts have developed a balancing act between the parties which we call the "But For” rule. The snotty Latin term is the "Sine Qua Non" rule – going back to Olde English law. The language makes it a little easier to understand - “But For” what the other person did would there have been an accident? Easy enough. We’re done right? So why are courtrooms filed with cases about whose fault it was? Well, that’s because right on the heels of the “But For” rule is the “Proximate Cause” rule. That one’s a beast. That’s were the Judge and/or insurance adjustor wants to throw back some of the responsibility for the accident on you. That’s how the other person gets off not paying for the whole bill. So I thought I’d give you a peek into the Jury Room. Here is what the Judge is likely to tell the jurors. “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]” California Civil Jury Instruction. 430 Here’s how you need to think your way though this. An act caused the accident. Was any of it under your control? Say you got hit, but you were drinking a Coke at the time. It might/might not have made any difference in the accident. The job of the other person’s attorney/insurance adjuster is to try to make all these little things seem like they make a difference as to whether the accident would have happened at all, or could you have done something to change the outcome? Lots of bad things could have happened but the question is, “Can you tie a string between the act that caused the accident and the accident?” The string must remain uncut. If you’re saying “but”, “but”, “but”, you’re probably in trouble. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
A peek into the jury room...
3.1-4 Proximate Cause - Substantial Factor Revised to January 1, 2008 Negligence is a substantial factor in bringing about an injury if it contributes materially to the production of the injury. <Read the next section only where one or more of the parties requests it and one or more of the theories of causation upon which the case has been presented fairly requires that it be given to ensure that the jurors are not misled.> Negligence contributes materially to the production of an injury if its causative effects remain in active operation until the moment of injury, or at least until the setting in motion of the final active injurious force which immediately produces or precedes the injury. By this definition, negligence which makes only a remote, a trivial or an inconsequential contribution to the production of an injury is not a substantial factor in bringing about the injury, and thus is not a proximate cause of the injury. Authority which considers whether the injury would not have occurred but for the defendant's negligent act. The Prima-Facie Case for Negligence (NB!: This is the basic framework; you will need to populate it with more rules) I. Duty: Duty issues are legal determinations for the judge only: [1]. ∂ owes a legal duty to π; [a]. Always yes, unless a special no-duty rule says otherwise. [2]. to comport with the standard of care prescribed by law [a]. To act as a reasonable and prudent person would under the same or similar circumstances to avoid or minimize a risk of harm; [i]. Sometimes this standard is modified—more or less. [ii]. Other times the standard is not modified but the evidence which may be admitted to satisfy the standard is broadened. [b]. Sometimes the standard is prescribed by statute or regulation, i.e., negligence per se. II. Breach: Breach issues are for the jury, unless there is no triable issue of fact [e.g., think of summary judgment]. Once the judge decides on the proper “standard of care” for the case, see supra, the jury must determine whether the ∂ has failed to conform to the applicable standard of care. Stated another way, the jury must decided whether the ∂ has breached his or her “duty of care” or was actually “negligent.” For example: [1]. ∂ has created an unreasonable risk of harm in light of the applicable standard; or [a]. Various tools can be used to help the jury evaluate whether this is the case. [2]. In a negligence per se case, ∂ has violated the applicable statute or regulation [without a legally recognized excuse].1 1 ∂ bears the burden to prove that any violation was excused. III. Legally Cognizable Harm: Harm is a mixed question of fact and law. Whether the π has actually suffered any “harm” is an issue for the jury, unless there is no triable issue of fact. But whether the “harm” suffered is legally cognizable—that is to say one the law will recognize—is an issue for the judge only. [1]. Traditionally, the π must suffer actual injury, harm, or damage to self or property. [2]. Some exceptions exist where the rule is relaxed a bit and other harms become cognizable. IV. Cause in Fact: Actual-cause issues are for the jury, unless there is no triable issue of fact. [1]. In the vast majority of cases, the π must show that but for ∂’s breach [i.e., negligence] π would not have been harmed in the manner complained of by π. [2]. In some limited circumstances or jurisdictions, the π may instead show that ∂’s breach [i.e., negligence] was a substantial factor in causing π’s harm. V. Proximate Cause (Scope of Risk): Scope-of-risk issues are for the jury, unless there is no triable issue of fact. [1]. Type of harm suffered by π falls within the scope of the risk the ∂ negligently created— i.e., a reasonable person would have foreseen harm of the same general type; and Special Rules: [a]. An intervening act or force (even an intentionally tortious or criminal one) can fall within the scope of the risk the ∂ negligently created so long as the intervening act or force, or one of the same general type, is foreseeable. [b]. The precise manner in which the harm occurs need not be foreseeable. [c]. The extent of the harm suffered by π need not be foreseeable. [2]. π falls within the class of persons risked by ∂’s negligence—i.e., a reasonable person would have foreseen harm of the same general type to a class of persons to which π belongs. Both Chris and Burt suffered An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved. -------------------------------------------------------------------------------- proximate cause n. a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to prevail (win) in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff (person filing the lawsuit). Sometimes there is an intervening cause which comes between the original negligence of the defendant and the injured plaintiff, which will either reduce the amount of responsibility or, if this intervening cause is the substantial reason for the injury, then the defendant will not be liable at all. In criminal law, the defendant's act must have been the proximate cause of the death of a victim to prove murder or manslaughter. (See: negligence, intervening cause).
Getting
the Hang of Bank Lingo
By Joann Deutch, Attorney © 2010
These days banks use language that is really a secret code. So you need to take a minute to be sure that whenever you are dealing with your bank you really know what you are signing up for. By paying attention you can get a better deal. Here’s what the bank will tell you. “This is how we calculate interest.” I’m still laughing. Yeah right. I’m all over this.
Here’s what you really want to know - Practical Legal Pointers When you open a checking account at some banks you can get an “interest bearing account” – one that pays you interest on the money that’s left hanging around in the account. Back-in-the-day, the interest was worth it, these days it’s chicken feed. So what can you do? Pay attention to terms like APY – the amount of interest you’ll earn in a year on the money you’ve deposited. Sometimes you’ll see APR. So what’s the difference? This one is the interest you’ll earn in a year when the bank pays you “interest on your interest”. BUT, there’s always a catch. You need to look at the “compounding period”. Is it daily, monthly, quarterly, or what? The shorter the compounding period, the more interest you make. For example of you deposit $100, and interest is compounded quarterly [3 times a year] you’d have earned $10.07 for doing nothing. That’s why everyone tells you to put away your nickels and dimes for retirement. Now watch what your credit card company does to you. You charged a new pocketbook for $100. You’re going to pay it off on your credit card over 5 years @ 27% interest. Your pocketbook has cost you $385.55. For that price it better be a designer bag. Holy smokes! How badly do you really want that bag? So now that I have your attention, you need to know you can make money off the banks, not to the same tune that they are ripping you off on your credit cards - but still - better than stuffing cash in the mattress. When times get better banks usually pay about 5% interest on your “deposit account” There are several deposit account choices, so be sure you know what the restrictions are on each one. A Money Market Account is a savings account that has s minimum amount you need to keep in the bank. It also has a length of time you need to keep the minimum in there - sometimes as little as 3 to 6 months. The good thing is that you can make some withdrawals. The longer the period, the more interest the bank will pay you. Then there is the higher paying Certificate of Deposit, or CD. Here you get interest for the length of time [term] you put your money in the bank. No you can’t withdraw any without paying a penalty - which usually the amount the interest you’ve earned. Now that you are a savvy consumer. you know you need to shop banks for interest rates and terms. You know to check how often they are compounding interest. And now you know why you need to PAY CASH whenever you can, or pay off more than the minimum every month. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
Legit Reasons to Evict You
By Joann Deutch, Attorney © 2010
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
How to Protect the Equity in Your House
By Joann Deutch, Attorney © 2010
Times are hard and getting harder. If you own your own home there are ways to protect some of the cash you have invested in your house against your creditors. First - let me explain some of the technical terms. The cash you have in your house is the difference between what you owe – on the house - and what its worth. In business terms, that’s called your “equity”. Ask yourself, “If I sell my house, how much $$$ will I be able to put in my pocket after the deal ?” Next - you protect your equity by knowing about and filing a “Homestead Exemption” form. So what’s with this “Homestead Exemption” ? It’s a way to protect some of the equity in your home from falling into the hands of your creditors. If you’re dealing with a creditor who wants his money, you may feel forced to sell your home. That’s when no one is likely to tell you that you can protect some of the equity in your home, even if this creditor will get stiffed. Here are the Practical Legal Pointers to help you out. The Homestead Exemption is a law in California. It protects you from having your very last dollar you invested in your home stripped away from you. Why do I say you need to file this form? Most people will tell you that you don’t need to file this form. I’m a “belt and suspender” kind of attorney and I believe you should go the extra mile for important stuff. Filing it makes you stop and think about your situation before you are in crisis mode. If you know that some of your cash equity in your home is protected by law from your creditors, should you go out and refinance your home to pay off this debt? Maybe not. Maybe you should stand firm against the creditor, and here’s why. The California Homestead Act says that if you have cash equity in your house, even if the creditor sells your house, you can keep some of your cash equity. There are requirements: If you are single you can protect $50,000 If you are married, you can protect $75,000 [if you and your wife are separated only 1 of you can claim a Homestead Exemption] If you’re over 65 you can protect $150,000 If you’re over 55 and disabled, you can protect $150,000 And as usual, there are BUTS - This can be a condo or a house You need to have been living in this home at the time the creditor filed the lien. This means that if you have more than 1 house, you need to choose the one you live in, and file that Homestead Exemption against that property You have to STAY in the house through to the bitter end You can only protect money that’s equity. So your if mortgage is more than your house is worth - well, you’re out of luck, you have no equity. That’s where you might find yourself if you act too hastily in refinancing Let me give you a “for instance” – Your house is worth $450,000. You have a $300,000 mortgage. You just lost a lawsuit and have a judgment against you for $250,000.The creditor is making arrangements to force the sale of your home. With a Homestead Exemption the bank gets all its money back and there is $150,000 left over. Who gets that money? If you’re a senior, you get it all. If not, you and your wife get $75,000, and the creditor get’s what’s left - $75,000. You still owe the debtor $175,000, but he can’t get it from the sale of your house. You have a $75,000 cushion to start over. If you didn’t know about this Exemption, chances are the creditor would have taken the entire $150,000 - leaving you out in the cold. The Homestead Exemption is a pre-printed form. You can buy it at any small office supply store. I recommend A ‘n B Stationery @ 12338 Ventura Blvd. Studio City, CA 91604 - (818) 760-0244. They have free parking in the back. You need to have it recorded with the County Recorder. The recording fee is $9 for the first page. Get a Money Order. Bring it to 14340 Sylvan St. in Van Nuys weekdays between 8:30 AM – 11:00AM and 1:00 PM - 3:30 PM. And what do I always say? Keep a copy for yourself. Ask the Recorder to put a stamp on your copy. You can leave a self addressed stamped envelop with a copy and they will mail you back your documents with official filing information on it. [6 weeks later] Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
You Have to Break Your Lease
By Joann Deutch, Attorney © 2010
Ok, so you signed a lease and now you have to shut down your business. You have 2 years left on your commercial lease. What should you do? Legally you’re on the hook for the entire amount of the rent due for the rest of the term of the lease. That’s a lot of moola. You shouldn’t try to sneak around the landlord. So the first thing to do it to see if the landlord will let you break the lease. You’ll undoubtedly have to pay a compromise amount to the landlord. Of course the landlord doesn’t want the unit to be empty. At the same time he doesn’t want to have to chase you for the money. No dice? The landlord wants way more than you want to pay. Remember you submitted a form for a credit check so the landlord knows were to find you and your money. What are the Practical Legal Pointers here ? – You have to understand the distinction between a sublet and an assignment. In a sublet, even though someone else [the sub tenant] is now in possession of your rental property, you - the original lessee - are still responsible to the landlord for the terms of your lease. While you may think this means only the rent, in fact you need to keep the lights on. You need to continue to have insurance. You need to remember if that some idiot trips in the store while it’s a sublet, the person who tripped will consider you the landlord. The bottom line? You need to keep an eye on the sub-tenant – you are not completely off the hook. In an assignment, the new tenant has a direct relationship with the landlord. What do I always say? Get it in writing. Your landlord and the new tenant have entered into a deal, and you are off the hook. Why would the landlord do that? Because the new tenant has a good solid credit rating, and the landlord is satisfied that he will get his rent [so he can pay the mortgage] Sometimes there’s a hitch in the process. You’re reading your lease, and you find language that looks like this: ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or sublet all or any portion of the Premises without on each occasion obtaining the prior written consent of Landlord, which consent will not be unreasonably withheld. Notwithstanding any assignment or subletting, Tenant will remain liable for the payment of rent and the performance of all terms and conditions of this Lease. Any attempt to assign or sublet without Landlord's consent shall be void and shall entitle Landlord to terminate this Lease.” This sounds like trouble right? Not so. Look carefully and you’ll find that there is language that says: “consent will not be unreasonably withheld.” This means that if you find a tenant who has acceptable credit, etc. the landlord must accept the tenant you are offering him. Why? Because in the law, there is a rule that if one side of a contract is going to break it, the other side needs to accept reasonable behavior by the breaching party if that will reduce the damages – lawyers call it mitigation of damages. So here, the landlord will be getting a tenant that is as credit-worthy as you were when you took on the lease. The new tenant is happy, he’s signing a 2 year lease instead of the more traditional 5 year lease. And you’re happy. Often the tenant, in desperation, will stick anyone in the space to help pay the rent. Be careful if you do. Know that you’re on the hook for your sub tenant’s bad behavior. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
Independent Contractor - To Be or Not to Be?
By Joann Deutch, Attorney © 2010
Most people think “Oh goodie, I won’t have to pay taxes.” Sure the company can classify you as an Independent Contractor. What you might not know is that there are some serious risks. From the business owner’s point of view it looks like a great deal. Pay the worker without the paperwork and deductions that accompany a regular paycheck, saving about 30%. The salary is reported on I.R.S. form 1099 at the end of the year. The company might even save a bundle on Worker’s Comp premiums. The I.R.S. says, “Generally, you must withhold income taxes, withhold and pay Social Security and Medicare taxes, and pay unemployment tax on wages paid to an employee. You do not generally have to withhold or pay any taxes on payments to independent contractors.” There’s always a BUT. If it were that easy, there’d be no employees. Call the worker what you want, but when he gets hurt, you’ll have to deal with the Department of Labor, Worker’s Compensation Board or the legal system. So here we are at the Practical Legal Pointers: The employer’s decision to classify the worker as an Independent Contractor doesn’t protect the employer from liability to and for the employee. The government agency, and the Courts will evaluate the following facts about the worker and his job duties and decide for themselves whether the classification is proper. Here is what everyone is going to look at: “Facts that provide evidence of the degree of control and independence …: Behavior: Does the company control or have the right to control what the worker does and how the worker does his or her job? Financial: Are the business aspects of the worker’s job controlled by the payer? (how worker is paid; are expenses are reimbursed, who provides tools/supplies, etc.) Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?” If the worker doesn’t have the kind of independence that these benchmarks require, then he will be classified by the government agency and the Court as an employee. Now you got big trouble. The worker is not listed on your insurance. Your Worker’s Comp carrier refuses to provide you with coverage. Your company will be exposed for the liability. “If an individual has been misclassified as an independent contractor and the employer has not provided workers’ compensation coverage for the individual, the employer can be held liable for civil tort liability not only to the individual, but also to third parties who are injured as a result of negligent acts engaged in by the misclassified individual in the course and scope of employment.” Labor Code Sec. 3602; 3706) Of course when it rains it pours. On top of being financially responsible for this worker who’s no longer such a great bargain, you’ll be hit with the fact that now you owe all those back taxes and deductions, your part of social security, and the part usually paid by the employer, along with a whopping 10% penalty. “If individuals classified as independent contractors are found to be employees, the employer will be assessed amounts due for unemployment insurance contributions, disability insurance contributions; state income tax withholding [unless an employer can show the income was reported and all taxes due were paid by the employee] Employers who fail to pay contributions for unemployment or state disability insurance benefits without good cause, will pay a penalty of 10%.” Unemployment Insurance Code Sec.1112 So don’t take shortcuts when it comes to employees. If you’re not sure whether the worker can be classified as an Independent Contractor the IRS has a form you can fill out and file with your query. Form SS – 8: Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding. It may take as long as 6 months to hear from the IRS. In the meantime pay the worker on the regular payroll, and then file for a refund of the deductions paid after the worker’s status is confirmed. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
You’ve Been Robbed!
By Joann Deutch, Attorney © 2010
It may not have been by a dude with a gun, but identity theft is just as overwhelming. When I learned that anyone can go to a post office and submit a change of address for your mail I was shocked. How easy can it be to commit identity theft? Can’t happen to me? Got a store discount card or a credit or debit card? Think again, it can happen to you. This can be the beginning of a major ordeal for you. This is more serious than someone stealing your credit card and charging a few hundred dollars to your card before your bank calls you. With your mail, the identify thieves will open new accounts, get credit cards where the statements never even come to you. This gets to be serious stuff. Practical Legal Pointers: The first thing to do, and don’t be lazy - is to call and place a fraud alert on each AND every one of your cards. The bank may want to re-issue cards, which means you’re going to be without them for a few days. After the Fraud Alert is placed, expect that whenever you make a transaction over a few hundred dollars the card will be declined, forcing you to call your credit card issuer and answer some extra security questions. They once asked me about an address that I had so long ago I’d forgotten all about it. Three days later it hit. Oh yeah. I lived there 30 years ago. These numbers used to be impossible to get a hold of. So, here they are. You’ve heard me say before, keep a written record. Call them, AND send a email. Keep a copy of the email, or the letter.
Equifax: 1-800-525-6285 P.O. Box 740241 Atlanta, GA 30374- 0241 www.equifax.com Experian: 1-888-EXPERIAN (397-3742) P.O. Box 9532 Allen, TX 75013
TransUnion: 1-800-680-7289 Fraud Victim Assistance Division P.O. Box 6790 Fullerton, CA 92834-6790
As far as you’re concerned these companies hold your future in their hands. They issue credit reports. Your interest rates are set by bank and credit card issuers based on the information these companies compile on all of us.
Having placed a fraud alert in your file, you're entitled to order free copies of your credit report. www.annualcreditreport.com or call (877) 322-8228. Unusually when you order a credit report it costs you money, and it lowers your credit rating. So don’t be willy-nilly about it.
You need to be an ACE detective here and look over all this information RIGHT AWAY. Be sure your names, address, age, phone number are correct. Check each record. If they are not familiar to you, and, if you ask, only the last four digits of your SSN will appear on your credit reports. Once you get your credit reports, review them carefully. Look for everything that you do not recognize.
Here is a Sample for Every Record on Your Credit Report that is Wrong:
Date
Name Address City, State, Zip Code Account Number
Name of Creditor Billing Inquiries Their Address City, State, Zip Code
Dear Sir or Madam:
I am writing to dispute a fraudulent (charge or debit) on my account in the amount of $______. I am a victim of identity theft, and I did not make this (charge or debit). I am requesting that the (charge be removed or the debit reinstated), that any finance and other charges related to the fraudulent amount be credited, as well, and that I receive an accurate statement. Enclosed are copies of (describe any enclosed information, such as a police report) supporting my position. Please investigate this matter and correct the fraudulent (charge or debit) as soon as possible.
Sincerely, Your name Enclosures: (List what you are enclosing)
Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
Lawyer’s Secret
By Joann Deutch, Attorney © 2010
This is for those of you who run a business, even if it’s at your dining room table. Is your paperwork a total mess? Does it own the dining room table? Do you toss paperwork when you don’t want to deal with it? You are your own worst enemy. You need to stop it. I’m not a clutter organizer, but as an attorney I can tell you that these habits can cost you plenty of money. My Practical Legal Pointers answer the question: "Why should I take the time to do this?" I know, you want to be out on that service call, making money. Keeping a paper trail can seem like a waste of your valuable time until you need it to back you up your version of the events. Here’s why it’s critical. You’ve heard the term "Hearsay’, or "Hearsay Evidence". What you need to know is that no one has to believe hearsay. Why? Mostly because it really means - "I heard him say it." The general rule is that people’s memories of what others say is not reliable. Our legal system wants to be able to ask this "him person" questions to clarify what he really meant. Lawyers have a secret way around the "Hearsay Rule". It’s called the "Business Records Exception". Here is when your pile of papers make a big difference. The exception is based on the fact that you and your business keep records in some sort of orderly fashion. It used to be that people carried Day Runners and jotted things down in them. Now you can put the same information into your Blackberry. I advise my clients to make notes on the back of invoices and bills about conversations. Always have a date and the name of the person you spoke with. You have to make these notes either while you are talking with the person, or shortly thereafter. If you make the notes after you know there is going to be a dispute, they don’t have the some credibility as they would have if they were made on the spot – in fact they probably have no credibility. These notes also serve the purpose of what attorneys call "Refreshing Your Recollection" about one of probably many conversations. When you write things down you actually store it in a different part of your brain. This gives you a better chance of recalling the details of each conversation. I can’t tell you how many times people testify to a series of conversations, running several conversations into one narrative. If you can’t remember the details, your "Business Record" will stand in for your testimony. The facts in your notes are given great weight in a courtroom hearing. Even if you’re not running a business, note taking is a valuable strategy to employ. For example, the I.R.S. says if they gave you wrong information, BUT you keep proper records, penalties would not be imposed on you. BUT you have the burden of providing the name of the I.R.S. employee you spoke with. I.R.S. penalties are brutal, so it’s worth it to keep track. In everyday life you can employ the same strategy. Write on the pre-printed form at the auto mechanic’s. Jot down notes or phrases on what you talked about - what they promised to do for you for this "Estimate". When you’re talking to your cell phone company about your bill, or services they are giving you, write it on the paperwork. If you don’t you’re sure to get "Who told you that. We don’t do that". You can calmly reply, "Suzanne [employee number] told me that on Monday April 27, 2009 at 5:15 PM, I have the notes." This puts you in the cat bird seat. Write it on a napkin, write it on a match book. It doesn’t matter. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
Do You Have Adverse Possession?
By Joann Deutch, Attorney © 2010
Does this mean you took something? Not in this case, but as usual with lawyer-talk it means something very specific. When a lawyer talks about Adverse Possession, we are talking about who’s going to be able to legally snatch some of your property. Sure you bought your house, and you may think you own it. The question is do you own it all or does someone else own part of it? You say to yourself, "That’s not possible". Surprise ! Adverse Possession comes into play every time you build a fence, or plant a row of trees along your property line. Most people don’t get property surveys to help them locate their property lines when they make these changes. Surveys are pretty expensive. There might be a big walnut tree on the property line. Do you put the fence in front or behind the tree? Even more common is when you move into a house and don’t know who put that fence up, or when that tree was planted. Whose fence is it? Whose property is it on, and who has to pay to fix it? Whose tree is it? If the roots are spreading, who has to pay to get them cut back? 3 inches of your garage is on your neighbor’s property. You got trouble in paradise. The concept of Adverse Possession is something every lawyer had to study in law school. It’s an old English concept. If for an uninterrupted 21 years a person [or people] have claimed and used property, they get title to that land. In California the concept was applied as far back as the original Spanish Land Grants and the big ranchos. You’ve probably heard of the term "squatter’s rights". You’re on the right track. Most lawyers don’t know that in modern cities, including Los Angeles, you’re unlikely to win a legal battle over that foot or few inches of your property that your neighbor’s fence or row of trees take up. Here the rule is that you have to have had the property officially surveyed and you have to have paid taxes on the property that you want to claim under the theory of Adverse Possession for 21 years. By the way the 21 years can be "tacked’ back to include prior owners. This however does not solve the entire problem. Your neighbor is saying your fence is on their property. They want you to tear it down and build a new one on your property. Or worse, they are claiming that your row of trees is on their property and they want you to pay to rip it down. And here you thought you were just being a good neighbor by trimming them and keeping everything nice and neat. The people who owned the house before you put up the trees or the fence. No one pulled a permit for the fence, and you can’t tell who put them in. What do you do? Practical Legal Pointers: You need to hustle to your curbstone. Look at the lip, near the street. You should see a small piece of metal the size of a small coin. It will have a nail of some sort through the middle. That is your Survey Button. Sometimes the metal has vanished and all you can see is a roundish dent in the cement on your curbstone. Your Survey Button marks the end of your property. You need to jump with in with, "Not my tree - Not my fence. It’s on your property, you take care of it". Wag your finger at the Survey Button like you mean it. The next thing you do is call both your homeowners insurance, and your Title Company. Title Insurance policies are very important. You buy them when you buy your house. BUT they are not all the same. There are CLTA [California Land Title Association] and ALTA [American Land Title Association] policies The CLTA title insurance coverage remains in place until you sell your house. The ALTA is a lender’s policy which only lasts while you have a loan balance outstanding on your mortgage. It’s always better to be prepared for the worst. A lawsuit Just what you needed, right? The claims would be called "Quiet Title" actions. A court will be asked to establish a party’s title to property for things like: - Boundary disputes - Surveying errors - Adverse possession - Fraudulent conveyances - Tax taking matters The good news is the Title Insurance Company pays for the lawyers who will defend you. [You can ask if they will pay your favorite lawyer to represent you]. And they pay for the loss of value to your property if you have to give up some of your yard, etc. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
How Savvy a Business Person are You?
By Joann Deutch, Attorney © 2010
Do you have friends and acquaintances that want to mooch off you? It’s one thing to help someone out when they have no money - but what happens when they "make it big and leave you behind?" Kinda pisses you off. Let me give you a "for instance". Your friend who is struggling to set up a business asks you to help with a website. From there you get stuck doing a logo that turns out to be masterful stroke of genius. The business takes off, and you never get paid for your contributions. Your artwork is plastered all over the website and now it’s on billboards and your friend is rolling in dough. So what happened? It’s your fault. You forgot to take care of the details. You forgot to protect your brain work. You need to do this even when you are dealing in what seems to be a casual situation. Remember your friend is trying to launch a business – so this business, don’t confuse it with friendship. Your ideas are your "intellectual property". They’re yours until you give ‘em away; and you do just that whenever you don’t make it your business to protect them. The law calls them "proprietary rights". Just like a piece of real estate. You own it. - You need to protect it. What are the Practical Legal Pointers here? I’ll give you some simple copyright concepts to use to protect yourself from being burned. First, know that "Your work is copyright protected the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device." according to the U. S. Copyright Office - FAQ section of their website. www.copyright.gov . Second, the process for actually filing a copyright isn’t difficult. The U.S. Copyright Office has all the forms online. You can fill them out and with a filing fee of $35.00 you’re done. There is something called "a poor man’s copyright". That’s when you mail yourself a copy of your own work. I recommend you put it in an envelop, take it to the post office and have them stamp it with a date. When you get the mail DO NOT OPEN IT. The whole point is to prove the date that you created the original work. File the sealed envelop in a place where you can find it. It’s not as good as an actual copyright, but better than nothing. When show biz people go around shopping a story or a script they go to all meetings armed with a "Confidentiality Agreement" which says – "this is my idea, you can’t use it". Why? It lets everyone know that one side intends to protect their "intellectual property", so "don’t even think about using it without coughing up some dough." You can do the same thing with all the work you do "as a favor". First you need to be clear it’s not a favor, you’re just being polite. You’re betting that the business will make it and when they do you want your piece. I suggest that you create a simple Licensing Agreement in the form of a letter. What’s the letter need to say? Describe the intellectual property, and give it a name - Exhibit A, so everyone’s on the same page. Add language that says exactly that what your intellectual property can be used for. You need to spell it out – you’re covering all the drafts of the final Exhibit A; brochures, mailers, website, etc., along with language that says it can only be used on the items on your list. If they want to use it for other things, they need to ask you, and it needs to be in writing. Then, and this is the big one – you need to say that the use is "Royalty/License free" for say 3 months, or however long you think it’s reasonable for your friend to launch their business. THEN you must say that Royalty/License Fees will be due beginning on ___ date. Setting a price beforehand is best. If not, I recommend that you add: "If the parties can not agree on a fee for Royalties/ Licensing, then the right to use your intellectual property [ Exhibit A] is revoked immediately." I recommend that before you hand over this Exhibit A that you send along this Letter Agreement and get it signed. Or say something like: "Please sign and return this letter/email, and I will forward to you this Exhibit A.", or "Please return this email as consent to my terms, along with your request for Exhibit A." You must do this before you start the back and forth on drafts or developing the work. What can I say? Step up to the plate and take care of your business. Don’t be afraid to assert your rights. No one’s gonna do it for you. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
How To Make A Contract Stick
By Joann Deutch, Attorney © 2010
Joann
Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net
Your Legal Right as an Employee to Breaks
By Joann Deutch, Attorney © 2010
It’s always great to have a good job, but sometimes you feel like your boss is taking advantage of you. What are your Rights? What should you do? I’m going to give you lots of details here, so read carefully. There is lots of stuff you need to know, and lots of BUTS. Many of you have jobs with small companies, or work for an individual. In these difficult times, you hate to "rock the boat" and make demands on your boss. Where does this leave you? Start with knowing what the laws say your boss should do for you. Getting right to the Practical Legal Pointers let’s start with your lunch break. If you work more than 5 hours in a day you’re entitled to a 30 minute, uninterrupted lunch break. Note that I’ve said entitled, not permitted. That means your boss is not doing you a favor by letting you take a lunch break. BUT there is an exception. If you work only 6 hours a day, you and your boss can agree that you’re not going to take a lunch. Why would you do this? Well because you can’t take the lunch as the last 30 minutes of your workday. The bad news is that the meal break is usually not part of your paycheck. You don’t get paid for those 30 minutes. BUT, once again there is an exception. If you have to stay at work, answer the phones, etc., that is called an "on-duty" lunch. While your boss is not supposed to demand that of you unless there’s no one else to cover the office, you get paid for an "on-duty" lunch. You and your boss are supposed to have a written agreement about the "on-duty" lunch, which says that you can revoke the agreement anytime you want. BUT remember if the "on-duty" lunch is part of the job requirement you may find yourself without a job. The company faces stiff penalties for breaking these meal break rules. For every day that you don’t get the "meal break" you are entitled to, the penalty is 1 hour of pay. BUT - are you sick of the "buts" ? The company only needs to allow you to take the meal break. California Labor Code Sec 226.7 They can’t stop you, but they don’t need to force you out the door every day. If you decide to work, tough on you. How do you get to collect this money you haven’t been paid ? You need to file a Wage Claim with the California Department of Industrial Relations, Division of Labor Standards. Get the form from at: http://www.dir.ca.gov/dlse/Form1.pdf. You can file the Claim while you’re still working, but you must file your Claim within 3 years of when you were forced to miss the meal. That’s not 3 years after you quit or get fired. You can go back 3 years from the time you file your complaint, so there’s no pointing in waiting. Remember that the 30 minutes paid "on-duty" meal time does not count toward when you get paid overtime. In addition there are "break times" that your boss is required to give you. In an 8 hour day, you’re supposed to get a 10 minute break in the middle of the morning, and in the afternoon. The rules say one 10 minute break for every 4 hours worked. Exactly when those breaks are given is not set in steel. Your boss has some flexibility. It’s a 10 minute break without interruption, and doesn’t include running to the bathroom to pee during the day. Each of these breaks is "on the clock". You get paid for them. Sometimes they are disguised as a 45 minute lunch break, especially if you get paid for a lunch break and you leave the building. You can’t leave 10 minutes early and call it a break. If you work less than 3 ½ hours a day, there are no breaks for you. You can get more information at the California Department of Industrial Relations Office, located at: 6150 Van Nuys Blvd. Room 206, Van Nuys, Ca. 91401 Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net Good Manners In Court Count
By Joann Deutch, Attorney © 2010
You’re
due to appear in Small Claims Court. You’re a nervous wreck. It always helps to know what to expect.
Joann Deutch is an attorney with
offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net Is the Honeymoon With Your Contractor Over?
By Joann Deutch, Attorney © 2010
You don’t wake up one morning and decide you can’t put up with your contractor anymore. It kinda creeps up on you. You come home from work and can’t decide if you’re more irritated with your Contractor who actually showed up, but appears to have accomplished nothing; or are you more relieved that he didn’t show up at all? And thereby didn’t mess anything up? What to do? Rest assured that your contractor knows that if you boot him off the job, it’ll cost you more to finish the job with a new crew. Tends to make him a little cocky. So let’s get to the practical pointers. You should always have enough reserves [money held back from the Contractor] so that if you are not satisfied with the work you can fire the Contractor. It is commonplace to make several payments to the contractor over time, based upon what’s been accomplished. Most legit Contractors will let you withhold 10% of the price of the job until everything is done to your satisfaction - any yes there will be plenty of haggling over what’s reasonable in the "your satisfaction" department. Try to get a bid that spells out the price for demolition; the price for ordering materials, say cabinets, toilets, door or windows, etc. This will help you figure out what your periodic payments should look like. They don’t need to be even. For the Contactor the demo part is cheap. He hires 3 guys at $180 per guy per day, for what 4-5 days? The dumpster is $250? The rest is pocket change for him. The 1/3 up front is pure malarkey. The Contractor is far from done with 1/3 of the job when he rips down your walls. When you get to the "buying of materials" be sure to make that check out to your Contractor AND the supplier. You don’t want to learn that the Contactor has used your money for something other than your supplies. Be sure your address is on the materials order, so that things are in your name – not your Contractor’s. Yes the supplier can and will sue you even though you gave the Contactor the money for the materials. As the guys who did the demo finish the job [and all the other "trades" that come in] get them to sign a Full Release which says they’ve been paid. Contractors are notorious for not paying their crew on time. I’d add a note on the release that the workers are "not claiming they were injured on the job" It’s a rare Contractor that carries Worker’s Comp insurance these days, and you can bet your bepee that the worker will be looking to you and your homeowner’s insurance for compensation. Technically they can’t waive Worker’s Comp rights, but it helps your side of you get into a squabble with them later. The form should look something like this:
UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT The undersigned has been paid in full for all labor, services, equipment, and/or material furnished to _________________ [customer] on the job of _________________ [name of owner] located at _________________ [job description] and does hereby waive and release any right to a mechanic’s lien, stop notice, any claims for labor and/or materials, or any right against a labor and material bond on the job. NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. THIS DOCUMENT IS ENFORCEABLE AGAINST YOU IF YOU SIGN IT, EVEN IF YOU HAVE NOT BEEN PAID.
Date: _________________. _________________ [ name] By _________________ [signature]
Hope that you don’t need this advice. Good luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net Punk’d By The Cops?
By Joann Deutch, Attorney © 2010
So you now have a Traffic Ticket. What pisses you off even more is that you know it’s not fair. It’s not a good ticket. These things happen all the time. The cop didn’t see what you saw, if he did you wouldn’t be the proud owner of a new Traffic Ticket. The Tin Man, that would be the traffic cop, whom you swear has no heart, like the Tin Man in the Wizard of Oz, has given you a moving violation. Now that you think about it, what really pisses you off is that you need to take precious time off from work to tell the Judge all about it. But, I can help you here. Take the Notice to Appear - flip it over. On the bottom you will see a little paragraph that tells you that you have the right to fight the ticket by Written Declaration. You can only do this for infractions, not misdemeanors, like DUIs. You can actually write the Judge, explain what happened. You don’t need to go to Court. It’s a good deal. If you don’t like the outcome you can ask for a Trial De Novo, and hustle back into Court with your beef. Here are your guidelines: On the front of your Notice to Appear, there will be a Vehicle Code that you’ve violated. See the little boxes half way down the ticket? # 23500 - That’s California Vehicle Code 22350 - exceeding the speed limit. Know what your Code violation is. Then go look it up on Google, or go to the Law Library @ the Van Nuys Courthouse [3rd floor, 10 AM to 2 PM – take a right off the elevator]. Does the Code section match what the officer said you did? California Vehicle Code 22526 is one of my favorite examples. Anti-gridlock. You pull up in the intersection on a green light ready to take a left. 5 cars cut you off so you can’t get through the intersection before the light changes. Is that fair?Get Your Proof Together. If the Speed Limit sign has been knocked down, take a picture. If the Stop sign is all but invisible because of the trees, and there is no limit line painted on the street, take a picture.Write a Declaration.
Start with, " I, ________, am over the age of 18, and a resident of the County of Los Angeles, and state as follows:". Now tell your story. Make it neat, short and sweet. End the Declaration with a Jurat which says, " I, _________, hereby declare that the foregoing is true and correct to the best of my knowledge. Executed this __ day of ____, 2009 in Los Angeles, California." Fill in the date, and sign it.
You need to enclose a copy of the Notice to Appear, a check for the bail amount, and your proof. I always suggest you go to Kinko’s or Office Depot and make a copy for yourself. Mail all of this Certified Mail. You can go to the Automated Postal Machine inside the Post Office, it’s like an ATM for stamps. Saves a lot of standing in line time. KEEP the receipt and copies. This needs to be in the mail before your Appearance Date, so don’t mess around. Good Luck!
Joann Deutch is an attorney with offices in Studio City --(818) 753-9922 -- Website: JoannDeutch.net -- Email: attorney@JoannDeutch.net |
