Newest articles on The Sacramento Press tagged as "law"

Ask the County Law Librarian -- Law Library Closing for Move; Re-opening March 1

2012-02-04T18:04:01Z

Q. What’s going on at the Law Library? There is yellow caution tape across the stairs to the second floor, which is closed to the public, and there’s a whole lot of banging and clanging going on up there!

Ted D.

A. Sorry about the noise and disruption, Ted! We’re doing our best to keep it quiet, but the sound you hear coming from the second floor is the result of having workers dismantle our rather large shelving units--we’re preparing for our move to a new facility about two blocks on the other side of the courthouse.

The Law Library and Civil Self-Help Center will be closed starting at noon on Friday February 10. We expect to open in our new location at 609 9th Street (corner of 9th & “F”) on or about March 1, 2012. Until February 10, if you need any material on our second floor, please don’t hesitate to ask a reference librarian—we’d be happy to run upstairs and get it for you!

While we’re closed, you can still visit our website at www.saclaw.org for a wealth of information, including sample forms and instructions for navigating a variety of common legal procedures. Our website may be down for a couple of days while we move our computers, but you can “like” us on Facebook or “follow” us on Twitter for the latest details on when that might happen, and exactly when we will re-open.

You may also visit the Witkin State Law Library of California or the Yolo County Law Library, which are the two nearest law libraries open to the public in the Sacramento area. The Yolo County Law Library has graciously volunteered to remain open an extra hour, until 5:30 pm, Monday through Friday for the month of February to accommodate our patrons.

Again, we apologize for any disruption in service, but we sincerely hope you will visit us in our new location and that the many amenities of 609 9th Street (including abundant street parking!) will make you think it was worth the wait!

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Juvenile Seeks to Rein in CPS Abuses through Legislation

2012-02-01T20:13:24Z

Now that Eric Smith, (not real name) a 17-year-old foster child, has been declared a dependent of the court, he is on a mission to change the laws that regulate CPS. “No one should have to go through what I did,” he said, citing his nine months in CPS custody last year. “They treated me like I was a villain, instead of a victim. Why? Because they can.” Eric wants to see that stop.

Just shy of 18, Eric is not yet able to fully tell his story. But that is not stopping him from writing letters to political officials and child welfare groups, recounting his experiences and proposing legislative changes. And what he can tell of his story, he does.

On April 1 2011, an emergency CPS social worker was dispatched to Eric’s high school to meet with him. CPS had received a phone call citing concern of emotional abuse in his home.

It was not the first call to CPS as court records would later show. But it was the first call to claim concern that Eric, who had attempted suicide before, might again attempt to take his life. A little-known provision in Welfare and Institution Code 300(c) allows the court to take jurisdiction if a child is suffering serious emotional damage.

The social worker who interviewed Eric that Friday afternoon promised him he would not need to return home. “She said she had a safety plan for me. But first she wanted to meet me at my house to talk with my mom.”

The social worker got to the house first. Eric arrived minutes later but retreated into a hallway at the sound of laughter. The social worker had discovered what Eric knew she would. It was what had kept him from confiding in others for 16 years. Eric’s mother was herself a former CPS social worker. Eric knew he wouldn’t stand a chance of getting the help he needed.

The two women gossiped like school chums, about coworkers, about supervisors, but mostly about Eric. “I knew he was lying,” he heard the social worker say to his mother.

Not less than an hour after arriving at the house, the social worker packed up her bags and closed the case. Before leaving, she placed a phone call. “Is Eric Smith at your house?” she said after identifying herself. “If he is, you need to return him immediately. There is no abuse in this home.”

Eric, crouching in the hallway, bolted.

It would be nine months before Eric would hear the words he’d doubted ever hearing, delivered at the final court hearing: “There is clear and convincing evidence of severe emotional abuse in this home.”

Eric’s story takes twists and turns to outrage even the most cynical. It’s a story he plans to tell in full one day. What he can reveal now is that the initial emergency social worker was removed from his case, a second was assigned and removed, and then a third and a fourth.

“All four social workers assigned to me over the past eight months put me through hours of crude and offensive questioning, consistently siding with my mother,” Eric said.

The second social worker was assigned after Eric bolted from his house. He had sought shelter with a friend until CPS could be notified. Unwilling to relinquish control to CPS, Eric’s mother allowed the second social worker to “voluntarily” place Eric in the Sacramento Children’s Receiving Home. On his second day in the home, his mother cut off all contact with his friends, his therapist, and his adult brother, claiming they had “brainwashed” her son. It was nine months before CPS would allow him contact with them again.

“CPS did not listen to me or believe me. They tried to put words in my mouth. They twisted facts. They tried to convince me of things that were not true and persuade me out of things that were true.”

Mike Johnson (not real name) was one of those social workers. Johnson reviewed the case and questioned Eric repeatedly. “He sat me down and said, ‘I am telling you, you never heard the words “there is no abuse in this home’ that afternoon. Do you understand?’”

“He wanted to cover for the social worker. He tried to tell me that I did not witness what I had seen with my own eyes and heard with my own ears.”

Johnson further told Eric that no court had ever taken jurisdiction under Welfare and Institution Code 300(c) and to expect to be sent back home. Emotional abuse could not be proved. It was his word against his mother’s. He was a teenage boy. She was a former CPS social worker and foster mother.

Thus began weeks of relentless interrogation. Johnson, as well as each new social worker, continued to side with his mother, accusing him of fabricating his story. When Eric asked them to interview his friends and other family members to corroborate his story, the social workers refused, saying juvenile cases are confidential to protect the privacy of the minor. Anyway, CPS added, they are not parties to the case.

“They told me I was lying,” Eric said. “They told me I was having a sexual affair with my friend’s mother. That she was having an affair with my therapist. They told me that my therapist was a quack. That I was not suicidal. If I was being abused, where were the scars? They believed everything my mother said. And they refused to talk to anyone else.”

Eric was put on 24/7 suicide watch for six months and told that “if I tried to run away or contact my therapist or friends, I would be placed in another city in a group home.” Johnson threatened the friend’s family with restraining orders if they so much as tried to contact Eric.

Meanwhile, the boy’s mother was being investigated on a separate matter. Her two-year-old foster child was removed, and she was charged with felony abuse of an adult dependent—her severely disabled adoptive daughter. Still, CPS hammered Eric with accusations. They recommended to the juvenile court that the case be closed and Eric be sent home.

Eric considered appealing to the State Foster Care Ombudsman until he learned that the ombudsman would go directly to the offending social worker to disclose the nature of the complaint as well as the identity of the child. It was a case of the fox guarding the hen house.

After six months in temporary placement—chosen by his mother—Eric finally received court permission to his petition to be placed in a foster home. Eric had been through dozens of hearings and still his case hung in the balance. Still CPS insisted there was no abuse in his home.

In early October, Eric’s foster father received a panicked phone call from the high school principal, followed by several calls from CPS. The police were looking for him. Eric’s French teacher had assigned a ten-minute free writing exercise and become alarmed at what she’d read:

The system has failed me. I have been denied the love, influence, and support from those who mean the most to me. Why? The simple answer is because they can. I am being punished by the very institutions put in place to help me....They say I am in ‘Protective Custody’ (that’s a laugh). I am the only one fighting for me.... No doubt in anyone’s minds why CPS will go to every length to protect one of their own.... I am going to escape. Come and watch the fireworks.

In November, the Juvenile Court declared Eric’s home unsafe to return to, bringing the CPS ordeal to an end.

“I felt trapped in a system meant to help me. Not only was I harassed, disbelieved, and mistreated by CPS, but I was denied access to the people I loved and needed the most. The laws meant to protect me, protected CPS.”

According to the attorney who worked on Eric’s case, “CPS works within a cloak of governmental immunity. Without a change in legislation, what’s hidden in the dark will stay in the dark.”

“Social workers need special training to recognize emotional abuse under WIC 300(c),” Eric said. “CPS put me through hell, and there was nothing I could do.”

With a rueful smile, he added, “I am nameless and faceless now. But in nine months, I will be 18. I will have a face. And I will be able to tell the whole story.”

Ask the County Law Librarian-Personal Service of Court Papers

2012-01-26T23:36:18Z

Q. I want to sue my tenant for property damage in small claims court. He left no forwarding address, and has abandoned his tenancy. He has no job. He gets his money from alimony and child support. However, I know that he picks up his kids from the school. Can I use my adult son to personally hand deliver a summons to him when he is with his kids at school? What are the rules?

-Myrna

A. There are requirements to ensure proper service of process, but first you may want to try discovering your ex-tenant’s address; it may be easier than you think. The Sacramento County Public Law Library(SCPLL) has created a guide on Finding People and Businesses, detailing some common ways in which people (and their addresses or phone numbers) can be traced. Also, as a recipient of child and spousal support, your ex-tenant may have had to update his address with the local family law court or child support agency. Most court records, unless expressly sealed, are public record and therefore available for viewing if you have a case number. In Sacramento County, case numbers can be found using the online Case Index, and family law case documents can be retrieved at the William R. Ridgeway Family Relations Courthouse. For other counties, consult the California Courts court directory.

The requirements for personal service of process are addressed in Code of Civil Procedure Sections 413.10-418.11. Although these code sections refer to civil actions at the trial court level, they also apply to small claims actions. SCPLL offers an online video tutorial and guide on personal service of court documents, and the California Courts Self-Help Center offers advice and forms on service of small claims court documents. At the law library, we suggest reading The Registered Process Server’s Guide to Service of Process in California, a very useful book that covers the numerous variables involved in serving court documents.

In the event you are unable to locate the defendant’s address after performing due diligence, you may want to consult previous Ask the County Law Librarian columns on Serving Legal Documents to a P.O. Box and Service by Publication. If you can locate a friend, family member, or coworker that has regular contact with your ex-tenant, you may want to consult the www.courts.ca.gov for information on substituted service.

If you do receive a money judgment and are looking to collect by levying funds from the debtor’s deposit accounts, be aware that some of the money may be exempt from collection, depending on the source of funding. For more information on which types of property may be safe from judgment creditors, see the Sacramento County Public Law Library’s research guide on Exemptions and the book "How to Collect When You Win a Lawsuit", published by Nolo Press.

You can always do some research at the Sacramento County Public Law Library. The law library has print and electronic resources and friendly reference law librarians are available to assist you.

Coral Henning, Director

@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Recovering Money for Property Damage by Tenant

2012-01-20T01:03:41Z

Q: In July 2011, I contracted a new driveway for my home. The cost was $3300. I paid extra for cement coloring. My tenant parked his car on the new driveway and caused permanent stains on both sides of the driveway due to leaks from his vehicle. In October 2011, he tried cleaning it but was not successful. He gave me a hand written note giving up on cleaning the stains. In November 2011, I hired a professional to clean the stains and not all of the stains were removed. He refuses to pay for the damage on the driveway or claim fault for his negligence. This incident has caused a disharmony between us. He knew his vehicle needed repair but was too lazy and stingy to repair his car. We have a written contact that requires his vehicle be maintained if he is to park on the driveway.

He gave his rent termination notice on January 1, 2012 to vacate the premise by January 31, 2012. We have a month to month rent agreement. The living arrangements have been hostile as he says that I have to sue to collect. He has also made the two rooms and bathroom he rented from me unclean, and refuses to clean it. I gave this tenant with his two kids a very clean living arrangements when he moved in on March 1, 2011.

There is also a possibility that he may not vacate my property on January 31, 2012 as I can see the bank notices for his bounced checks he gets in his mail.

How do I make this tenant from hell pay for the property damage? and evict?

Myrna

A: Thank you for your question! It seems you have a couple of issues, let’s tackle the driveway damage first. You didn’t mention if your tenant gave you a security deposit when he moved in. If he did, you may be able to withhold some of it to recover the property damage. California Civil Code §1950.5 primarily governs security deposits; be sure to read each section carefully to be aware of the various requirements for both the landlord and the tenant. Also the California Department of Consumer Affairs has a very good article discussing when a landlord can keep security deposits.

If there was no security deposit left, then Small Claims court is a common venue for disputes over property damages. It has the advantage of being very quick, with cases typically being heard in only a few months, and of being relatively inexpensive. You can sue in Small Claims for up to $10,000, and your damages fall well within this limit. Before filing, you should write a formal demand letter requesting payment for the damages to the driveway, possibly including an estimate for the cost of repairs. You can get help writing your demand later from the California Courts Self-Help Center.

At the law library, we suggest reading Everybody’s Guide to Small Claims Court in California, a very useful book on the small claims process. Every county in California has a Small Claims Advisor that can assist you with your case free of charge. You can find county-specific court information including Small Claims Advisors here: http://www.courts.ca.gov/selfhelp-advisors.htm .

For your second issue, if your tenant becomes a “holdover tenant”, meaning he won’t leave after his notice expires, you will need to formally evict him. A book at the law library that should help with this issue is the California Landlord's Law Book: Evictions , available for purchase at Nolo Press, or to view at our law library, which discusses the process and has sample forms and instructions. You may also want to visit the Unlawful Detainer Advisory Clinic, located in the Carol Miller Justice Center. The clinic assists both landlords and tenants in filling out answers and complaints, preparing cases for trial, and filing post judgment motions.

You can always do some research at the Sacramento County Public Law Library. The law library has print and electronic resources and friendly reference law librarians are available to assist you.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Court-Appointed Attorneys in Civil Cases

2012-01-12T22:49:21Z

Q. I accidentally bumped into the back of a car at a stop sign--I barely even tapped the bumper, I took a picture and you can hardly even see the tiny dent--but now this jerk is suing me for "soft tissue neck trauma," aka whiplash. He is asking for $100,000 for pain and suffering!!! I was laid off about a year ago, before the accident, and still can’t afford car insurance, much less an attorney, even if I could find one who would take my case—I looked and looked! What are people in my situation supposed to do? I did nothing wrong, I could lose everything, and no one will help me! Why won’t the Court appoint a lawyer to defend me?
- Sandeep

A: We’re all very familiar with the phrase "If you are unable to afford a lawyer, one will be appointed for you.” We hear it every time someone is arrested on TV or a movie. Generally, the court will only appoint an attorney to ensure that a defendant’s Sixth Amendment “right to counsel” is met, in situations where the defendant cannot afford to hire an attorney. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy … the assistance of counsel for his defense.” Originally, this amendment applied only to felony cases, but a series of US Supreme Court decisions have broadened this right to cover nearly all types of criminal cases. However, this amendment is speaking specifically about criminal proceedings, not civil cases.

In California, the court cannot appoint an attorney to represent either party in most civil cases. A recent law, AB 590, does provide for the appointment of counsel in “civil matters involving critical issues affecting basic human needs.” This has been interpreted to mean cases in which shelter, nourishment, safety, or child custody are at stake. The law provides funding for projects run by local legal aid organizations, and services are limited to those who fall at least 200% below federal poverty level. It’s unlikely that your case would meet these criteria. If you are unable to hire an attorney at your own expense, you’ll have to pursue your defense of this case on your own.

If you’re a Sacramento County resident, some assistance may be available to you for this type of case from the Civil Self-Help Center. The CSHC can provide general information and basic assistance to self-represented litigants with certain case types. Common types of cases they can help with include personal injury, property damage, and breach of contract. Keep in mind, though, that their services are “self-help.” This means YOU are in charge of your case. They won’t do everything for you, like an attorney would if you hired one. If you decide to pursue this case on your own with help from the CSHC, you need to be in control of your case, you need to understand and determine your own strategy, and you need to keep on top of deadlines, court dates, and other important milestones. The Law Library has a variety of books and other materials that will help you at each step of your case. The Law Librarians are happy to help you find the books and other resources to help you with your case.

Coral Henning, Director
@coralh & @saclawlibrarian

Ask the County Law Librarian – Providing For Pets In The Event of Death or Incapacity

2012-01-05T19:14:51Z

Q. I am trying to get my affairs in order and I am concerned about what will happen to my three dogs should I die or become incapacitated. Can I leave money in a will or trust for my dog's care?

Suzy

A. You cannot leave money or other kinds of property directly to your dogs because the law says that animals are property. I know most people that have pets consider them to be family members, but the law sees it differently, therefore your pets cannot be a beneficiary in a will. There are a number of things you can do to make sure your pets are provided for when you can no longer care for them.

You can choose a new owner for your dogs and make it a legally binding decision by including it in your will. A provision like: "I leave my three dogs Caldonia, Eli and Keeva to my friend Jennifer Lynn. " Obviously, you should talk to Jennifer before including such a clause in your will. Also consider leaving this new owner some money to go toward the costs of caring for your pets.

You can set up a Pet Trust which names someone, a trustee, in charge of managing and spending the property you leave for the benefit of your dogs. The trustee follows a written set of instructions that you provide. One advantage of a trust is that it takes effect before your death. The provisions in a will don't have any legal effect until you die.

For sample will clauses and other related information the New York City Bar Association has an informative website:
http://www.abcny.org/media-aamp-publications/brochuresbooks/556#Introduction

The law library has two books published by Nolo: Nolo's Simple Will Book, and Plan Your Estate both by Denis Clifford which can help on this topic. Also a great resource for all things related to dogs is Every Dog's Legal Guide, A Must-Have Book For Your Owner by Mary Randolph which is also published by Nolo. This website has a number of articles reprinted from Every Dog's Legal Guide: http://doglaw.hugpug.com/doglaw_073.html

When you are drafting your will or trust consider a contribution to rescue groups, humane societies and other non profits. A gift can help many animals. If you need help on the wording or have other questions the organization will be more than happy to provide assistance.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Recording Telephone Calls

2011-12-29T23:43:06Z

Q. My ex won’t pay her child support. Whenever we go to court, she claims she has no income, but she has boasted to me before that she is making money under the table and I’ll never get any of it. I bet I can get her to admit it again. Is it legal to record a phone call?

Chris

A. Don’t do it! It is illegal to record a phone call, or any private conversation, in California unless both parties know that the conversation is being recorded. You might also be sued for “intrusion.” Even if this doesn’t scare you, the tape would be worthless: it cannot be used as evidence in a court case, except your criminal trial.

Under California Penal Code 632(a), recording or eavesdropping on a confidential conversation without the consent of all parties is a crime. The penalty for a first offense is up to a year in jail or state prison, a $2,500 fine, or both.

Note that this applies to any “confidential communication,” whether it is in person, on the phone, or by some other device, as long as the eavesdropping or recording is done with an “electronic amplifying or recording device.” The term "confidential communication" includes any conversation in which is “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” California Penal Code 632(c).

Your ex might also be able to sue you for $5,000 or more. California Penal Code 637.2 provides that anyone injured by a violation of the eavesdropping and recording laws can sue for $5,000 or three times actual damages, whichever is greater.

If you do record your conversation, the recording will almost certainly be inadmissible in court. California Penal Code 631(c) states that “Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.” In other words, you can’t use it to help you, but it can be used against you to prove you broke the law.

California actually has some of the strongest anti-eavesdropping laws in the US. In many states, it is legal to record a phone conversation as long as one person knows it’s being recorded. In these “one-party states,” people generally may record their own conversations without the consent of any other parties but cannot grant that right to a third party. Reporters have an obvious interest in the laws on this subject, and you can find an overview of all 50 states’ laws on the website of the Reporters Committee for Freedom of the Press.

There might be other ways to prove that your ex is hiding income or spending more than she claims to earn. If you come in to the library, we have books that can give you ideas of the types of records to subpoena and questions to ask to help you do just that.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

How Registered Sex Offenders can Challenge “Jessica’s Law” Residency Restrictions

2011-12-22T17:30:03Z

Q. My brother is going to get out of jail soon, and we were planning on him moving in with me, but his parole officer told him he couldn’t because he has to register as a sex offender and I live too close to an elementary school, which is against “Megan’s Law” or “Jessica’s Law” or something like that. Isn’t there anything we can do? I’m afraid if he doesn’t live with me he will be homeless.

Jerri

A. California’s Megan’s Law requires anyone convicted of a wide range of crimes, including forcible sex crimes involving non-consenting adults and most sex crimes involving children, prostitution, and child pornography, to register as a sex offender upon release on parole or probation or discharge from custody. California Penal Code § 290. Proposition 83, the Sexual Predator Punishment and Control Act, or “Jessica’s Law,” which amended Megan’s Law on November 8, 2006, forbids any registered sex offender from living within 2,000 feet of a school or park where children regularly gather. California Penal Code § 3003.5(b).

Your brother is not alone in facing a very bleak prospect. According to the Prison Law Office, a nonprofit public interest law firm which engages in class action and other impact litigation on behalf of prisoners, these residency restrictions have forced many parolees to become homeless because they are unable to find affordable, compliant housing.

Jessica's law has been challenged in courts as being too restrictive. Your brother may wish to ask a court to review his case. The Prison Law Office, which has been involved in many of these challenges, has produced a packet of forms and instructions that parolees can use to ask for an immediate stay of the restrictions while their individual cases are being heard by the courts. The packet is available for free on the web at http://www.prisonlaw.com/pdfs/ModelHabeasFull,Dec10.pdf. An additional fill-in-the-blank form, required by all California state courts in this type of case, can be downloaded from the California Courts’ website at http://www.courts.ca.gov/documents/mc275.pdf.

You should be aware that local cities, towns and counties are permitted to adopt ordinances which impose further restrictions on where you can live. If you are not in Sacramento and are unsure whether your residence is in compliance with local law, check with someone who is familiar with your community’s laws.

Good luck!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Traffic Tickets for Out-of-State Residents

2011-12-15T22:36:34Z

Q: I’m not a California resident, but while driving home to Oregon last week I received a speeding ticket in California, more than ten hours away from where I live. If I want to contest it, do I have to drive all the way back to the county where I received the ticket?

Brett

A: First of all, kudos for being proactive about an out-of-state traffic violation. Many people under the same circumstance will simply ignore the citations in hopes that they won’t "follow" them back to their respective resident states. In fact, there are a few different databases that monitor driving records and violations across participating states, and there’s a good chance your state of residence belongs to at least one of them. For more information, consult the National Driver Register (NDR), the Driver License Compact (DLC), and the Non-Resident Violator Compact (NRVC).

If you wish to contest a Vehicle Code or local ordinance traffic violation in a California county, you have two options: 1) you can request a court trial; or 2) you can request a trial by declaration. In a trial by declaration, the judge reviews written statements and evidence mailed by both parties (the defendant and the citing officer). To be eligible for a trial by declaration, your case must meet the following requirements:

• Your citation is for an infraction violation only (as opposed to a misdemeanor);
• The due date to take care of your ticket has not expired; and
• Your notice or ticket does not expressly require your presence in court.

More information on both types of trials can be found at http://www.courts.ca.gov/8450.htm, which includes links to fillable forms, instructions for submitting evidence, and a description of the trial process. The county in which you received the citation may have its own traffic forms to use in addition to or in place of the state-approved Judicial Council forms, so check the superior court’s website or ask the court clerk before mailing your request. Nolo Press, a publisher of popular self-help legal books, publishers a very helpful guide called “Fight Your Ticket and Win in California.” You can find the book at large commercial bookstores like Barnes and Noble, at the publisher's website, or at your local public law library.

For information on similar issues, see Ask the County Law Librarian columns on red light citations, past-due traffic tickets, cell phone citations, and obtaining evidence from law enforcement agencies.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian -- Small Claims Defendant Can Postpone Trial for "Good Cause"

2011-12-08T23:06:14Z

Q. I am involved in a Sac small claims action that continues to be postponed by the Defendant. I'm trying to get the matter over with. So now I'm wondering: what does "Form SC-105, SC Order and Answer do? Is it a way to expedite a case or ask a judge to review my evidence and rule in advance?

The small claims advisors don't return calls and don't answer their phone. Any assistance would be appreciated.

Thank you
Carol

A. I understand your frustration in wanting to resolve your matter as quickly as possible! Form SC-105 is a generic motion form. It is used to ask the court to make a decision about a specific issue in your case, such as amending a judgment to include other names the defendant uses. This form cannot be used to get a judgment on the case.

According to California Code of Civil Procedure § 116.570, any party has the right to ask the court to postpone a hearing date for “good cause.” The code section does not limit the discretion of the court to grant additional postponements for “good cause” as necessary.

The request for postponement can be made either by writing a letter or by using Judicial Council Form SC 150, Request to Postpone Trial. The request shall be filed at least 10 days before the hearing date, unless the court determines that the requesting party has “good cause” to file the request at a later date. If the court finds that the interests of justice would be served by postponing the hearing, the court shall postpone the hearing, and shall notify all parties by mail of the new hearing date, time, and place.

According to Nolo.com’s legal dictionary, “good cause” is a legally sufficient reason for a ruling or other action by a judge. It is up to the other party to provide adequate proof that a postponement is required. Ultimately, it will be at the judges’ discretion if the postponement request is granted.

Try to be patient with the Small Claims Advisor; this is the time of year when self-help centers are busiest. It may easier to obtain services by going there in person rather than through the telephone.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Credit Card Surcharges

2011-12-01T19:55:22Z

Q: I stopped at a new convenience store near my house on my way home the other night, and when I went to pay for my purchases I noticed they had a note taped over the debit/credit card machine that said I would be charged an extra 75 cents if I paid with a debit or credit card, unless the total purchase was $10 or more. Well, I had no choice since it’s the end of the month, so I used my credit card and paid the extra 75 cents, but I was steamed! Is this legal?
-- Cody

A: Credit and debit cards are a convenient option for many consumers. However, they can be very expensive for merchants, who must pay the issuing bank a fee every time they swipe a card. These fees vary, based on the issuing bank and the type of card, but generally range from 1-3% of transaction amount, plus a per-transaction flat fee of 5-20 cents. For merchants with a small profit margin, these transaction fees can really be a drain on their bottom line. Some merchants try to pass these fees on to the customer by imposing a fee for using a credit or debit card.

California Civil Code 1748.1 prohibits merchants adding surcharges or any additional fees when a customer pays for goods or services using a credit card. However, the law does allow merchants to offer “cash discounts” to encourage customers to pay with cash or check, rather than a credit card. Although the outcome is similar – customers paying with a card are charged more than those using cash – there is a fundamental difference between a credit surcharge and a cash discount. With a credit surcharge, the consumer is paying more than the marked price simply because they’re using a card for payment. This can lead to an unpleasant surprise at the register, when the bill is more than the customer would expect based on marked prices. With a cash discount, customers paying with a card pay the marked price, while customers using cash pay less than the marked price. Customers paying with a card are charged the expected amount based on marked prices, while cash customers get a welcome discount.

Although credit card surcharges are illegal in California, there is no law limiting surcharges for debit card transactions. Last year, then-Governor Schwarzenegger vetoed SB 933, which would have prevented merchants from imposing surcharges when consumers use debit cards. However, the merchant agreements for both Visa (rule 6.3) and MasterCard (rule 5.11.2) prohibit the practice.

Keep in mind that “convenience fees” for using credit or debit card are allowed for some merchants, under both state law and merchant agreements. These are generally available to public-sector merchants, like schools, utilities or the IRS.

Until recently, merchants were legally prohibited from setting purchase minimums for credit card use. This was changed with a provision of 2010’s Dodd-Frank Wall Street Reform and Consumer Protection Act. The new law allows merchants to set a minimum purchase as high as $10, as long as it is applied to all cards, regardless of issuer.

If you believe a merchant is in violation of State or Federal law or their merchant agreement, you can make a report to your credit card company, or to the California Attorney General’s office.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian: Collecting on a Small Claims Judgment

2011-11-18T17:47:17Z

Q. I am the Judgment Creditor in a small claims case. My judgment was by default. In lieu of a debtor’s examination I am planning to use interrogatories. Is my debtor entitled to a witness fee? Also, is a judgment debtor entitled to witness fees for coming to a debtor’s exam?

Thank you,
Grant

A. Good news! You will not need to pay the debtor any witness fees.

After plaintiffs win a judgment, they are on their own trying collect it from the defendants (now called the "debtors"). In order to find out what assets the debtor has, and where they are located, plaintiffs are entitled to do post-judgment discovery, including interrogatories and an in-person debtor's examination.

The law authorizing post-judgment interrogatories does not require witness fees. (California Code of Civil Procedure (CCP) section 708.020.) CCP § 708.020 also refers to the rules on pre-trial interrogatories. (CCP §§ 2030.010 and following.) Those sections do not require a witness fee, either.

A debtor’s examination also does not require a witness fee. Debtors’ examinations are covered by CCP § 708.110 through CCP § 708.205. While CCP § 708.120 provides that a third party who is examined is entitled to mileage, it makes no such provision for the debtor. (Generally, third-party witnesses are entitled to receive "ordinary witness fees" of $35.00 per day and $.20 per mile, round trip. Cal. Government Code § 68093.)

You mentioned that this was a small claims case. I’m curious whether the debtor sent you a Statement of Assets. In small claims cases, the debtor is automatically required to send you a “Judgment Debtor’s Statement of Assets” (Judicial Council Form SC-133) within 30 days of the Notice of Entry of Judgment. CCP § 116.830. You don’t mention whether the debtor did this, and I’m guessing not, since it covers the same questions you most likely would ask in your interrogatories – employment and pay information, bank accounts, real estate, and personal property. If you didn’t receive it, the debtor is technically already in contempt of court.

If you didn’t receive the Statement of Assets, there is a special form to use to set up a debtor’s examination after a small claims case: “Order to Produce Statement of Assets and to Appear for Examination” (Judicial Council Form SC-134). (If you did receive it, but need more information, you would use an “Application and Order for Appearance and Examination,” Judicial Council Form EJ-125.) To get copies of documents such as pay stubs, you can use the “Small Claims Subpoena and Declaration” (Judicial Council Form SC-107) or a standard “Civil Subpoena Duces Tecum” (Judicial Council Form SUBP-002).

If you want more information about the examination or your other options, you may want to contact the free Small Claims Advisor at the courthouse. You can find out more about their free services by visiting the Sacramento County court’s Small Claims Court website. If your case is in another county, check the California Courts website for a link to your county’s advisors . For information on this and many more subjects, visit the Sacramento County Public Law Library, “Providing Free Public Access to Legal Information for over 100 years.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - When does a minor have to get parental consent for medical care?

2011-11-10T17:40:21Z

Q. I’m currently working on a project for my ethics class. In this project I play the role of a risk manager who provides information to a 15 year old patient asking for medical emancipation. Do you know of any good resources where I can find more information on medical emancipation because I haven't been successful in my research? Thank you so much for your time, I appreciate it very much.

Best Regards,
Maria

In most cases, parental consent is required for a minor’s medical treatment. There are, however, exceptions, known as “medical emancipation” statutes. These statutes, which allow minors to consent to medical treatment without parental knowledge, approval, or consent, fall into two categories: “general” medical emancipation statutes, which are based on a minor’s status, and “limited” medical emancipation statutes, which apply to specific, designated medical conditions. Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997).

Examples of general medical emancipation statutes are California Family Code § 7002, which provides that a minor who has become emancipated by reason of a court order, marriage, or active duty in the United States armed forces is considered an adult for purposes of consenting to health care services; and California Family Code § 6922, which provides that minors who are 15 years of age or older, living away from home, and managing their own financial affairs, regardless of the source of their income, may consent to their own medical care.

Limited medical emancipation statutes cover certain circumstances where the state’s interest in protecting the health of minors is considered to outweigh a parent’s right to make medical decisions on behalf of their children. Minors may be reluctant, because of embarrassment or fear, to tell their parents about medical conditions resulting from specific conduct. Consequently, minors may postpone or avoid seeking needed medical care if they are required to obtain parental consent prior to receiving treatment for those conditions. California’s limited medical emancipation statutes include:

Family Code § 6924(b) A minor 12 years of age or older may consent to mental health treatment, counseling, or residential shelter services if (1) the minor is mature enough to participate intelligently, in the opinion of the health care provider, and (2) the minor is either a danger to himself or herself or others without the treatment, or is the alleged victim of incest or child abuse.

Family Code § 6925: A minor of any age may consent to care related to the prevention or treatment of pregnancy.

Family Code § 6926: A minor 12 years of age or older may consent to treatment of an infectious, contagious, communicable, or sexually-transmitted disease.

AB 499 (2011): Beginning in January 2012, minors 12 years of age and older may consent for medical care related to the prevention of sexually transmitted diseases.

Family Code § 6927: A minor 12 years of age or older may consent to treatment of care related to the diagnosis or treatment of rape.

Family Code § 6928: A minor of any age may consent to care related to the diagnosis or treatment of sexual assault.

Family Code § 6929 A minor 12 years of age or older may consent to care related to the diagnosis or treatment of drug- or alcohol-related problems.

Health & Safety Code § 121020: A minor 12 years of age or older may consent to HIV testing.

For more information on medical emancipation, see www.teenhealthlaw.org. For information on this and many more subjects, visit the Sacramento County Public Law Library, “Providing Free Public Access to Legal Information for over 100 years.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian-Bicycles and Sidewalks

2011-11-03T22:12:00Z

Q. I just moved to Sacramento and have noticed many people riding bicycles around town. Biking to work would be ideal, but I’m worried about dealing with traffic in certain areas and would be tempted to ride part of the way on sidewalks. I have a hunch this is illegal, yet I see cyclists doing this pretty often. Could I be ticketed for riding my bike on a sidewalk?

- Dan

A. Sidewalks are invariably appealing to bicyclists: smooth, level surfaces that facilitate cruising and offer a cushion of safety from approaching vehicles and their drivers, some of whom may still be using handheld devices to talk or text. Despite popular belief, sidewalks can be lawful segments of bicycle routes, but we recommend researching local county and city ordinances, relevant signage, and the area’s official bike routes before risking a potential citation, or worse. Pedestrians will always have the right-of-way on sidewalks, and cyclists should always exercise caution, especially riding in areas with heavy foot traffic.

Bike laws are generally a municipal matter, so your research should begin with the local county and city codes: the Sacramento County Code and the Sacramento City Code are available online and in print at the Sacramento County Public Law Library, or your local county law library. Sacramento County Code, Section 10.12.010 (b) states “notwithstanding the provisions of subdivision (a) of this section, any person may ride a bicycle on a sidewalk which is designated by the director as a part of the County bike route system and which is identified for such use by appropriate signs giving notice thereof. A bicyclist using a sidewalk as authorized by this subdivision shall yield the right-of-way to any pedestrian using the sidewalk.”

The Sacramento City Code is even more specific in Section 10.76.010 (A): “Except as authorized under subsection B of this section, no person shall ride a bicycle on a sidewalk except within a residence district or where a sidewalk is designated as part of an established bicycle route. Pedestrians shall have the right-of-way on sidewalks.” Subsection B lists exempted groups, such as medical personnel, law enforcement, and those with special permits.

Both the city and county ordinances reference “bike routes” as an exception to the prohibition of bicycles on sidewalks, and that these routes will be identified by signs. The next step, then, would be to research designated bike routes in the area and the signs that indicate their locations. Many counties and cities will have this information online; Sacramento County's website offers information on bikeways, as well as a map of existing routes. Also available on the website is the Sacramento County Bicycle Master Plan, adopted in April 2011, which includes descriptions of different bike paths and their corresponding signs. If you have additional questions, you may want to contact the transportation department of your city or county.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian- Divorce Nullifies Power of Attorney Between Spouses

2011-10-27T19:49:09Z

Q:
Hello I'm e-mailing with a question about the law of Power Of Attorney. My parents have been divorced now since "2006” in "2005" my Dad gave my Mom Power Of Attorney over his personal affairs. My parents have been separated since "1989" but have always maintained a good relationship. Lately my Dad has been showing sing of early Alzheimer’s and we have concerns because it seems that due to their divorce the Power Of Attorney is no longer valid! Is this a fact or is there something we can do to ensure that My Mom remains a vital part of My Dads affairs! I’m not sure and we need to know because there are properties involved and health care issues. So if u could help us out with some helpful info it would be nice. Thanks!!
-Iris

A:
I’m sorry to hear about your dad’s ailing health. It is true that in California, a divorce will nullify a power of attorney, if it was created between spouses before the divorce. The California Probate Code states that if after executing a power of attorney the principal's (your dad) marriage to the attorney-in-fact (your mom) is dissolved or annulled, the principal's designation of the former spouse as an attorney-in-fact is revoked. The California Probate Code also states that the power-of-attorney can be revived by the principal's remarriage to the attorney-in-fact.

If remarriage is not a possibility, and if your dad has the legal capacity to make the decision, he can execute another Power of Attorney listing your mom as the agent or attorney-in-fact. If your dad is able to understand and is willing to sign a Power of Attorney or Advanced Health Care Directive, these may be all that is needed to re-instate your mom’s authority. These forms are available at the law library’s website at http://www.saclaw.org/pages/forms-page.aspx .

However, since your dad is suffering from early Alzheimer’s, he may not be competent enough to do this. The law library has several books you can look at to help determine legal capacity, including: Capacity and Undue Influence: Assessing, Challenging, and Defending: Here's How and When To Do It published by CEB.

If your dad does not have the legal capacity to execute another Power of Attorney, then a Conservatorship may be an alternative for your family. A conservatorship is a legal arrangement in which a responsible adult oversees the personal care or financial matters of another adult considered to be incapable of managing alone. The person who cannot care for him or herself is called the conservatee. The person or organization the judge chooses to do this is known as the conservator. A conservator can be a family member, friend or professional person. California law on conservatorships can be found in the Probate Code beginning at section 1800.

A California conservatorship must be formally established through a court proceeding. The proposed conservator must first file a Petition for Conservatorship to initiate the court proceeding. Once the petition has been filed, the clerk will set the matter for hearing. The hearing will generally be set 45 days from the date of filing. Sacramento County may have some local forms requirements.

The law library has created Legal Resource Guides on Power of Attorney and Conservatorships that will help you get started in your research. These Legal Resource Guides are available from the law library’s website at http://www.saclaw.org/pages/legal-research-guides.aspx .The law library also has other materials available, including sample forms and general information that cover both of these topics.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Past-Due Traffic Tickets

2011-10-20T21:22:32Z

Q: I got a traffic ticket a while back, and missed my court date. I’d totally forgotten about it until I got something in the mail last week, saying I owed money on my outstanding ticket. It’s a huge amount now, with interest and late fees, etc. Can I ask for a payment plan or community service? I don’t have the money to pay the ticket right now.

-Tanya

A: The payment of past-due traffic tickets is handled through the Sacramento County Department of Revenue Recovery. Periodically, the agency sends out letters regarding outstanding balances, in an attempt to collect money owed to the County. If you receive a letter from the Department of Revenue Recovery and wish to pay the amount in full, you can do so online, by mail, or in person. Unpaid tickets are eventually assigned to a third-party collection agency.

If your outstanding ticket is still being handled by the Department of Revenue Recovery, the court still has jurisdiction over your case. This means that the court can still change the amount you owe, order traffic school, allow community service, etc. To make this type of request, you will need to go to the traffic court at 301 Bicentennial Circle between 8am and 4pm, Monday-Friday. You will receive a same-day hearing.

Once an outstanding ticket is assigned to the collection agency, the court no longer has jurisdiction over your case. This means that the court can no longer modify the amount you owe, or allow options such as community service or traffic school. Your must negotiate directly with the collection agency about setting up a payment plan. Your driver’s license will remain suspended until you pay all fines and fees on your record.

If your ticket was due to be paid before January 1, 2009, you may be in luck. The state recently announced a limited-time “Amnesty Program” for outstanding court debts. With this program, California Superior Courts are offering a 50 percent off discount on some old, unpaid traffic tickets. The program will be available January 1, 2012-June 30, 2012. The eligibility requirements may vary from county to county. More information about the amnesty program is available at www.courts.ca.gov/partners/941.htm.

www.saclaw.org

Ask the County Law Librarian - Renters' Rights in Foreclosures

2011-10-06T22:04:52Z

Q. I have been renting a house for more than a year. I just got a notice that the house will be sold at auction at the end of this month. Do I have to move out then? That’s not nearly enough time to find a new place! And do I have to pay this month’s rent? I will need the money for a deposit on a new place. -Allan

A. Don’t worry – you will not have to move out at the end of the month. Exactly how long you have depends on who buys the property at auction, and whether your lease is month-to-month or until a certain date, but you will get at least 90 days notice. The trustee’s sale may even be delayed – this frequently happens. But you do have to keep paying rent!

With all the foreclosures going on, this situation is pretty common. When the mortgage crisis started, tenants were caught in a real bind – foreclosure wiped out any leases that were signed after the loan was taken out, and the new owner could evict them on 60 days notice.
This caused so much hardship that a new federal law was passed protecting tenants: the “Protecting Tenants at Foreclosure Act of 2009” (Pub. L. no. 111-22, 123 Stat 1660 (2009)). This law expires on December 31, 2012, unless Congress extends it before then.

Under this law, if the mortgage loan is “federally related” (almost all are), the lease survives the foreclosure. This means that the tenant can stay until the end of the lease. Month-to-month tenants must get 90 days' notice before eviction. The law doesn’t apply to tenants who are close relatives of the former owner who got a sweetheart deal for below-market rent.

There is an exception for buyers who plan to move in to the home themselves. In this case, the lease ends, but the tenants are still entitled to give 90 days’ notice.

So if your lease extends until a certain date, and the property becomes bank-owned, you are set until the end of the lease. If your lease is month-to-month, the bank must give you at least 90 days notice to move out. If the buyer plans to live in the home, you must receive 90 days notice to move out.

You do still have to pay rent though! You can still be evicted for cause, including non-payment of rent. Starting on the day of sale, rent should be paid to the new owner. If you have a security deposit, the new owner should also be responsible to return it when you leave.

For more information, read the Nolo article “Tenants in Foreclosure: What Are Their Rights?” or the Nolo Press book “California Tenant’s Rights.” The California non-profit group Tenants Together sponsors a “Foreclosure Rights Hotline” at 1-888-495-8020. Housing and Economic Rights Advocates has a more extensive list of tenants’ rights in foreclosure, including discussions of cash for keys, right to maintenance, and more.

Good luck!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – Service by Publication

2011-09-29T22:16:14Z

Q. I want to sue this guy who sold me a bill of goods, but he has disappeared off the face of the planet and I can’t find him anywhere. I thought I read somewhere that I could just put a notice in the newspaper and that would be ok. How do I do that?

A. When filing a lawsuit, you are required to serve the other party with your summons and complaint, to notify them of the lawsuit. If the other party cannot be located, you will have to ask the court for permission to publish the summons in the newspaper. Publication of Summons, as set forth in California's Code of Civil Procedure section 415.50, is considered a method of last resort. The court can only approve your request for an Order for Publication of Summons if you show that the other party cannot be served in any other manner. You will need to prove to the court that you have made exhaustive attempts to locate the other party. The California Courts Self-Help Website suggests numerous ways to track people down under “Finding Someone in Order to Serve Him or Her” at http://courts.ca.gov/selfhelp-serving.htm. The Law Library also has a guide to “Finding People & Businesses,” available on our website at http://www.saclaw.org/pages/finding-people.aspx.

After all these attempts, if you are still unable to locate the other party, you may ask the court for permission for publish your summons in the newspaper. To do this you must complete an “Ex Parte Application for Order for Publication of Summons,” a “Memorandum of Points and Authorities,” a “Supporting Declaration,” and an “Order for Publication of Summons” for the judge’s signature. You must also obtain declarations from anyone else involved in the search for the other party. There are no fill-in-the-blank forms for these documents, which must be typed on 28-line pleading paper and otherwise conform to the California Rules of Court, starting with Rule 2.100, and any other local rules regarding the format of papers to be filed with the court. Luckily, the Law Library has prepared sample pleadings, and instructions for completing those pleadings, that you can download for free and adapt to your facts and circumstances at http://www.saclaw.org/pages/legal-research-guides.aspx. Scroll down and look for "Service by Publication: Step-by-Step."

Most often the reason a request for Publication of Summons is denied is because the court does not feel that adequate steps have been taken to attempt to find the person to be served. If the court grants the order to publish, however, your next step is to publish the Summons in a newspaper of general circulation in the location where the party was last known to reside. The newspaper will publish your Summons once a week for four weeks, then provide you with confirmation of publication. Pursuant to Government Code § 6064, service is deemed complete on the 29th day after the first date of publication. If the other party has not filed a response 30 days after the effective date for service, you may file for default against the other party. You will then be able to continue your case without the other party’s participation.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Dogs in Public Places

2011-09-22T23:08:19Z

Q. I have been seeing an increasing number of people who take their dogs everywhere: cafes, restaurants, flights, bookstores, libraries. At first I thought only service dogs were allowed in these types of situations, but most of the dogs have nothing that identifies them as service animals, and some of them look too small to be of any help to the owners! Is this legal in California?
-Mason

A. As with many other legal questions, the answer to this question is “it depends.” The laws and regulations regarding dogs in public places vary based on many factors, including federal and state laws and regulations, local ordinances, the businesses’ policies, and the dogs (and owners!) themselves.

If the dog is indeed a service or assistance animal, then the Americans with Disabilities Act (ADA) and California Civil Code Section 54.2 guarantees disabled owners and their dogs access to public places such as restaurants, stores, movie theaters, and libraries. Contrary to popular belief, service dogs are not required to wear any identifying equipment or tags, nor are their owners required to carry documentation of their status. In the same vein, owners or employees of public places are prohibited from inquiring about the owner’s disability or the dog’s training. If the dog’s purpose is not obvious, they are allowed to ask a) if the animal is required because of a disability and b) what tasks it is trained to perform. (28 C.F.R. § 36.302.) A public accommodation’s requirement to accept service animals is enforced by the Department of Justice. For information on this issue, go to http://www.ada.gov/service_animals_2010.htm.

It’s not unheard of for people to take advantage of the above laws by claiming their dogs as service animals. Many businesses prefer to avoid confrontations or legal issues that might come with an inquiry and will look the other way if the occasional Yorkshire terrier or teacup Chihuahua accompanies its owner into the establishment; some businesses may be dog-friendly. If the dog is not a service animal, then other state laws and regulations, as well as local ordinances, come into play. For example, many state health codes have laws that prohibit animals from being in food service establishments due to possible contamination and public hygiene, and local ordinances have the authority to restrict animals from such places even if state law does not. It’s best to check both the state code and your local county and city codes for any such prohibitions. You can find these resources at your local public law library or on the Internet. To find the law library nearest you, go to www.publiclawlibrary.org.

In other places, like theaters, malls, or small businesses, the issue is often dependent on the company’s policy or the owner’s personal preference. Before you visit an establishment, contact the owner to ask if they allow dogs (on a leash, of course). Websites like www.dogfriendly.com allow dog owners to scout out places that accept dogs, although keep in mind that some jurisdictions have enacted breed-specific laws. For more information on this topic and other dog-law issues, we suggest Every Dog’s Legal Guide: A Must-Have Book For Your Owner, published by Nolo Press. If you live in California, another helpful resource is Nolo’s Guide to California Law, specifically the chapter on dogs (pg. 171).

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Suing the Government

2011-09-15T20:36:51Z

Q-
I want to sue the State of California, the County of Sacramento, the City of Sacramento, and any other state or local government entity that was involved in depriving me of my civil rights in an incident last March. I was talking about my plans with my cousin, and she told me the statue of limitations was six months. I thought the statues were longer than that--years, not months. Irregardless, I'd better get started--so how do I sue the State?

Trinity

A-
Thanks for your question. Bringing an action against a public agency or its employee presents special procedural requirements. Before a lawsuit or complaint can be filed with the court, the injured party must first file a claim with the government agency. The agency will typically conduct an investigation and either agrees with your allegations and settles the matter with you or disagrees, and rejects your claim. Once the claim is rejected, you will be notified in writing that you can pursue the matter in court. This is often called your “right to sue letter”. According to the California Government Code section 945.6, you will need to sue within 6 months of receiving the letter, but other “statute of limitation” sections may apply, particularly if you do not receive the written letter.

For your claim, the California Government Code section 910 sets forth the requirements for the required contents of the claim. However, in order to help people comply with this section, “fill in the blank” claim forms are provided by many government agencies and are often available on the internet. For example, claim forms for the State of California, the City of Sacramento, and the County of Sacramento are all available online. For other local government agencies, the law library has put together some information on finding other Government and Police claims.

If the agency you are hoping to sue does not have a claim form available, you can always draft your own using samples here at the law library. I would suggest looking at book called California Government Tort Liability, a practice guide published by CEB. It is a great place to start your research into this area of law, particularly since there are specific time limitations for filing a claim and many immunities within the act which you will want to take a look at. Finally, once you get your right to sue letter, you are ready for the next step: to file a lawsuit in court.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Patenting Recipes

2011-09-08T22:31:38Z

Q: I recently opened a bakery where I use recipes that have been in my family for generations. I’m worried about my competitors getting a hold of these recipes, and using them in their own bakeries. Can I patent my recipes, to keep them from being used elsewhere?
Thanks!
Arielle

A:
Recipes can be patented, as long as they meet the requirements that apply to any other type of invention. There are several basic requirements you will need to meet in order to patent your recipes.

First, your recipe must fall into one of the patentable subjects described by Federal law. To be patentable, your invention must be a "new and useful" process, machine, manufacture or composition of matter. The US Supreme Court has ruled several times that the only categories of things that cannot be patented are laws of nature, natural phenomena, and abstract ideas. Generally, recipes would fall into one of the patentable categories.

Federal patent law also requires that your invention be useful. As long as your invention is capable of achieving a useful result, it will meet this requirement. A delicious baked good is, in my opinion, a useful result.

The next two requirements are usually the biggest hurdle to obtaining a patent. Federal law requires that your invention be “novel” and “nonobvious.” “Novel” means that it has some significant physical or methodical differences from all prior inventions that are publicly available before the date of your invention or more than one year before your patent application. “Nonobvious” generally means that someone who is skilled in the particular field would consider the invention to be an unexpected or surprising development. It cannot be just the next logical step or change to an existing patent.

These two requirements may be a problem for you in patenting a recipe. To meet the “novel” requirement, you will need to prove that your recipe is significantly different than any other recipe that came before yours, and that was not publicly known more than one year before you apply for the patent. If your recipe has been in your family for generations, chances are it’s been publicly known for years. For your recipe to be “nonobvious” it will need to include something that would surprise skilled chefs. Simply adjusting ingredients and measurements will not likely be enough to make your recipe nonobvious.

Federal law also limits patents to the inventor or discoverer. This means you can only patent your own recipe. You probably cannot patent your grandmother’s recipe, since you did not write it yourself.

After reading all this, you may decide that a patent doesn’t suit your situation, and wonder how you can protect your recipes from other bakeries. Companies like Coca-Cola and KFC rely on trade secret law to keep their secret recipes out of the hands of competitors. A trade secret can be anything that gives you a competitive advantage, such as a special recipe or formula. To be considered a trade secret, you must take steps to prevent competitors and the public from accessing your recipe. Unlike a patent, there is no application process for a trade secret. Instead, you just take reasonable precautions to keep your information secret, like keeping your recipes locked away when not in use, or having your employees sign a nondisclosure agreement. The Uniform Trade Secrets Act prevents others from copying, using, or benefitting from your secret without your permission. If anyone steals or divulges your trade secret, you can ask the court to issue an injunction preventing further disclosure or use of your trade secret. This law does not protect against people “discovering” your secret, by reverse engineering your recipes, though. The Nolo Press website offers more information about trade secrets.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask The County Law Librarian - Digital Afterlife

2011-09-02T02:18:04Z

Q. My 32 year old brother died recently in a motorcycle accident. He doesn't have much in the way of assets but he does have a Facebook account with lots of photos and a Twitter account that reflects all of his musings. Is there a way for me to get access?

A. The companies that have created the most popular places and tools for online expression have specific policies usually buried in "Terms of Service Agreements" and often involve some effort, like providing a death certificate. Facebook offers to "memorialize" the profile when an individual dies. It deactivates certain features and resets various privacy controls, converting the account to a place where friends can leave remembrances. The process doesn't give much direct control to any heir or executor of the content.

Twitter offers a full archive of a deceased user's tweets to their survivors.

Gone are the days you inherit a physical scrapbook or a diary and this has inspired a variety of entrepreneurs to create startups that manage the details of your digital afterlife. These services store passwords and document your wishes for who gets access to what accounts into a kind of adjunct to a traditional will. The digital beyond lists such services.

There is even a book on this topic: Your Digital Afterlife: When Facebook, Flickr and Twitter Are Your Estate, What's Your Legacy by Evan Caroll and John Romano.

I am sorry for your loss and hope accessing these accounts preserves your brother's legacy.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian -- Public Access to Mug Shots

2011-08-25T19:46:42Z

Q. Is it possible to obtain an individual's booking photo using the booking number at a County jail?

Thank you,

Rebecca

A. There are several reasons a person might want to see booking photos (also known as “mug shots”). They are a popular part of news stories on crime, especially when celebrities or particularly newsworthy crimes are involved. In some cases, a person may want a photo to help them identify a person who may wish them harm, but whose appearance may have changed. Academic or other studies may be another potential use for booking photos.

Although a few police or sheriff’s departments routinely release booking photos, and some even post them online, in many cases they are reluctant. You can start by simply contacting the sheriff department or jail records department and requesting the photo. You may find, however, that many—including the Sacramento county jail—will not release them in response to a simple request.

Your next step could be to file a request under the California Public Records Act (California’s equivalent to the Freedom of Information Act). The CPRA (California Government Code Sections 6250 through 6276.48) requires public agencies to permit inspection of their records.

According to the advocacy group First Amendment Coalition, it’s unclear under California law whether the police are required to release booking photos.

Booking photos are a “public record” (“any writing [including photographs] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency”). (Cal Government Code 6522(e).)

However, records of investigations and investigatory files compiled by law enforcement agencies are exempt from the CPRA requirements. (Cal. Government Code 6524(f).) In 2003, the California Attorney General issued an opinion that mug shots fall within this exception. 86 Ops. Cal. Atty. Gen. 132, 135 (2003). As a result, law enforcement agencies may, but are not required to, disclose them. Attorney General opinions do not have the force of law, but courts tend to give them great weight when deciding a legal question for the first time.

The 6524(f) exemption itself has an exception: the agency must release the arrested person’s “physical description including date of birth, color of eyes and hair, sex, height and weight,” in addition to the name of the person and information about the circumstances of the arrest. The First Amendment Coalition suggests that “[o]ne could argue that a booking photo falls into this category of records that must be released, since it does no more than visually show information that a law enforcement agency is required to release anyway.”

To use the CPRA to get a booking photo, your first step is to write a request letter. The First Amendment Coalition has a sample of what such a letter should include.

If the letter does not work, you can try re-filing the request with a higher-up official, or you can file a lawsuit to enforce your CPRA rights right away.

If you file a lawsuit, and the court agrees that the records should have been released, you are entitled to reimbursement of your fees and any attorney costs. The First Amendment Coalition has a useful page on filing such a lawsuit. They also offer a Find-A-Lawyer service to match potential litigants with First Amendment specialists, sometimes at reduced rates.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian – How to Stop Wage Garnishment

2011-08-18T17:34:54Z

Q. I just got a default judgment against me by a credit card company. I didn’t bother answering the summons and complaint because I figured I didn’t have any defenses—I spent the money but couldn’t pay the bill. A friend told me they could go after my wages, now, though, and take 25% of them until my credit card bill is paid. I don’t make that much money; we live paycheck to paycheck and I can barely afford to feed my family and pay my rent and other bills, which is how I got into this problem in the first place. Can they really take a quarter of my paycheck? Is there anything I can do about this now?

Jin

A. You could attempt to obtain “relief” from the default judgment, but you must prove you had a specific reason under California law, for example, “excusable neglect” under the Code of Civil Procedure § 473(b), for a court to grant relief from a default judgment. Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. You also must show that you have a meritorious defense to the original case. Given what you said in your question, it doesn’t sound like you would be successful pursuing relief from default, but you should read the Legal Resource Guide about the process on our website at http://www.saclaw.org/pages/relief-from-default.aspx, so you know all the options.

A judgment creditor can go after your bank accounts and other personal property, your real property, and even put a lien on a lawsuit you have against someone else. You can read about those measures on the California Court’s Self-Help Website at http://www.courts.ca.gov/1179.htm. “Wage garnishment,” however, is probably the most popular method creditors use to collect judgments, because it is the quickest and easiest. A creditor can garnish, or take, up to 25% of the amount you earn over the federal minimum wage, unless part of your paycheck is exempt under other rules.

In order to garnish your wages a creditor must ask the court for a Writ of Execution, which is an order directing the Sheriff to enforce the judgment in your case in the county where your assets are located, and an Earnings Withholding Order (EWO). Once granted, the Sheriff serves your employer with the EWO, which requires the employer to pay part of your earnings to the Sheriff. Once your employer instructs you that they have received an EWO you have 10 days in which to file your Claim of Exemption and a Financial Statement with the Sheriff’s department listed on the EWO. There is nothing you can do until your employer receives the EWO.

A Claim of Exemption is the form you must file with the Sheriff to explain why some or all of the wages the creditor wants your employer to garnish should be exempt (excluded). Enforcement of Judgments, Form EJ-155, lists most of these exemptions.

Your employer will hold on to the money garnished until either: 1) 10 days go by and the creditor does not oppose your claim of exemption; or 2) the judge makes a decision on the claim of exemption. If the creditor does not oppose your claim of exemption, you employer will return the wages to you.

If the creditor opposes your claim of exemption, you will receive a Notice of Opposition to Claim of Exemption and Notice of Hearing on Claim of Exemption that will set a court date for a judge to make a decision, probably within the month. If the judge agrees with your claim of exemption, you will get your money back. If the judge agrees with the creditor, your employer will send the money to the creditor every month until your judgment is paid in full.

The court reviews all oppositions to claims of exemptions and makes a Tentative Ruling on whether to allow a claim the day before the scheduled hearing. These Tentative Rulings are posted and available for viewing after 2:00 p.m. on the day before the scheduled hearing. The tentative ruling will become the final ruling on the matter unless either party asks for the hearing to be held. If you would like the judge to hear oral arguments, you must notify the other party, the other party's attorney, and the department clerk of your intent to appear at the hearing no later than 4 p.m. the day before the scheduled hearing. If you do not give this notice, your hearing will be taken off the schedule and the tentative ruling will become the final ruling of the court. For more information on the Court’s Tentative Ruling System and how to view the tentative rulings, see the Legal Resource Guide on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Parole Records in California

2011-08-11T21:33:03Z

Q. How would I find out the parole status of a person in Riverside County? They were recently put on parole after violating probation a number of times.

-Barbara

A. It depends on what you mean by “status,” but there are resources that might help answer your question. The California Department of Corrections and Rehabilitation (CDCR) has some helpful web pages on the parole process in California, including the Parolee Information Handbook. This handbook includes descriptions of parole conditions or requirements (page 9) and common parole definitions (page 8). For example, the conditions of parole are written rules the parolee must follow. When one’s conditions and parole period (time one must spend on parole) have been satisfied, one is discharged from parole. All parolees in California have an identifying CDCR number that can be searched in private (law enforcement personnel only) and public databases.

So, what segments of a parolee’s record are public information? Very few, as it turns out. A person’s parole conditions and parole period are confidential and can be accessed by only the parolee and his or her parole agent; this type of information usually cannot be found in the public record. What can be found in the public record is the following data: the parolee’s full name, CDCR number, prison, and, depending on the jurisdiction, case records that may contain pertinent charging and sentencing information. You can find a person’s CDCR number or full name through the Inmate Locator.

Depending on the county, your local courthouse may be able to provide more information in the form of criminal records, case documents, or a brief case history. Sacramento County, for example, offers a case index that, upon entering a person’s name, provides a skeletal history of each case that person was involved in, including charges, pleas, hearings, and the sentence. Local services will vary from county to county, so be sure to consult your local superior court for more information. You can also try contracting the local parole unit if you know the area in which the parolee was sentenced. And, for more information on obtaining criminal records in California, see Ask the County Law Librarian- Criminal Background Checks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Serving Legal Documents to a P.O. Box

2011-08-04T20:29:15Z

Q-
I am involved in a court case and need to serve legal documents and the only address I have for the other person is a mailbox at a UPS store and someone told me that I can’t serve a P.O. Box, is that true?
Joseph

A-
The answer depends on what type of P.O. Box you are trying to serve. If it is an actual post office box that is offered by the federal government, through the United States Post Office, then it cannot be served. However, according to the California Business & Professions Code § 17538.5, you can serve a Commercial Mail Receiving Agency (CMRA) which is commonly referred to as a “post office box” even though legally it is not. CMRAs offer private mailboxes, and these are technically not P.O. boxes. If you know that the person you are suing has a mailbox with a commercial mail receiving agency, you do have the option of serving the agency location with copies of your legal papers.

You are able to serve a commercial mail receiving agency because when a customer rents a private mailbox at one of these agencies, California law requires that they sign an agreement which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer.

Even if the person you are suing has terminated their private mailbox, California law requires that CMRAs accept service of process for and on behalf of any of their mail receiving service customers for two (2) years after termination of any mail receiving service customer agreement. So you may be able to serve the owner or operator of the CMRA within two (2) years after end of the private mailbox rental agreement.

Below are some general steps for serving a CMRA:

1. You must verify the location of the private mailbox. Contact the U.S. Postal Services office and ask for the location of the box. This has the added benefit of allowing you to verify that this box does indeed belong to a CMRA, and is not a federal post office box, which cannot act as agent for service of process.
2. Ask a friend, process server, sheriff, or anyone over 18 years of age and not a party to the case to serve the CMRA owner or operator with copies of your claim.
3. Though not required by law, it is always a good idea to mail a copy of the plaintiff’s claim to the private mailbox itself.
4. The CMRA will send all documents by first-class mail to the last known home or personal address of the mail receiving service customer. Make sure to serve the CMRA at least fifteen (15) days prior to your hearing date.
5. File a completed Proof of Service form with the court clerk five (5) days before your hearing date.

Check out the law library’s Legal Resource Guides for more information on serving your papers.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Calculating Child Support

2011-07-28T18:41:58Z

Q: My ex and I were divorced many years ago, when we were both working at different jobs than we have now. Teenage boys are very expensive, and more child support would really help! I don’t know if it’s worth the hassle of all the paperwork, though, if the support amount won’t change much. Is there any way for me to estimate how much the new order would be?
- Rachel

A: Typically, child support orders can be modified anytime circumstances change, such as unemployment or job promotion. If it’s been several years since your support was determined, and if you’re working at different jobs, it’s very possible that your support order can be modified.

California has a statewide guideline for calculating how much child support should be paid. These guidelines are outlined in California Family Code section 4055. The formula is fairly complex to calculate by hand, but luckily, the website of the California Department of Child Support Services has an online child support calculator to help you. This is the official calculator used by Family Court Commissioners.

The amount calculated using the formula or the calculator is only a guideline. The court takes into account many factors when determining child support. The main factors are discussed on the California Court's Self-Help website's Child Support page.

The family law Self-Help Center may be able to help you with your support questions. They can't represent you in court, but they may be able to help you with selecting and completing the proper forms to modify your child support order. The Self-Help Center is located in Room 113 of the William R. Ridgeway Family Relations Courthouse and is open Monday through Thursday from 8:30 a.m. to 4:00 p.m., excluding court holidays.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - "Safe & Sane" Fireworks on New Year's Eve?

2011-07-07T21:16:13Z

Q. Hello,

I found your website and I have a question about fireworks. I happen to have been born on New Year's Eve and always thought it would be fun (weather permitting) to have some of the Red Devil fountains to light . . . I guess they are called safe and sane now . . . in my day, that meant Red Devils!

So, is it legal to set off California legal fireworks any time of year? If not, would I need a permit or something? Also, is it legal to purchase fireworks online, as long as they meet a safe and sane standard?

Also, I would most likely be celebrating with friends in Citrus Heights . . . does that make a difference?

FYI, we would either use the street, or the driveway. I'm totally willing to get oil drip pans and fill them with clay cat litter to catch the sparks. We always have a bucket of water, a hose and a fire extinguisher handy.

Thanks! Any help would be greatly appreciated.

Pamela

A. Hi Pamela!

Nice to see that someone else is concerned with safety when it comes to handling fireworks. Personally, I think “safe and sane fireworks” is an oxymoron, but I realize I am in the minority.

According to the California Code of Regulations, a license isn’t required for the use or discharge of “safe and sane” fireworks. 19 CCR § 981. The specifications for “safe and sane” fireworks is set forth in 19 CCR § 986.6. You can search the California Code of Regulations at http://ccr.oal.ca.gov/linkedslice/default.asp?SP=CCR-1000&Action=Welcome.

California “State Fireworks Law” limits the time period for legally selling “safe and sane” fireworks to between noon June 28 and 10 p.m. July 6th of the same year. California Health & Safety Code § 12599. The state law does not seem to limit the time of year you can set off fireworks; however, “nothing in the State Fireworks Law authorizes the sale, use, or discharge of fireworks in any city or county where that sale, use, or discharge is otherwise prohibited or regulated.” California Health & Safety Code § 12541.

Both the County of Sacramento and the City of Citrus Heights prohibit the possession, sale, use, display or explosion of any fireworks with two exceptions: certain public displays with the written permission of the fire chief that take place under the supervision and direction of a state-licensed operator; and the sale, use or discharge of “safe and sane” fireworks to noon June 28 and 10 p.m. July 5th of the same year. Sacramento County Code § 4.54.320; Citrus Heights Code of Ordinances § 38-68. You can search the Citrus Heights Code of Ordinances at http://library.municode.com/index.aspx?clientID=13326&stateID=5&statename=California.

So, no “safe and sane” fireworks display on New Year’s Eve in Citrus Heights. As for purchasing them online, the State Fireworks Law provides that “it is unlawful for any person to sell or transfer any safe and sane fireworks to a consumer or user thereof other than at a
fixed place of business of a retailer for which a license and permit has been issued.” California Health & Safety Code § 12681.

I’m sorry, Pamela. Don’t worry, though, I’m sure you will have a Happy Birthday anyway—it is the law of safety karma.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Food law takes effect Friday

2011-07-01T00:44:20Z

A new food handler training program goes into effect for all California restaurant workers Friday, and Sacramento-area employees and restaurateurs have varied opinions on its effectiveness.

The new law, Senate Bill 602, requires all restaurant employees – with a few exceptions – who handle food to complete an online training course with basic food safety instruction. According to the law, certified testing companies cannot charge more than $15, paid by the employee.

“There are similar laws and requirements like this in other states that require a basic level of food safety training, like Florida and Texas,” said Daniel Conway, legislative and public affairs director of the California Restaurant Association.

The association is a trade group for California restaurants and worked with county health inspectors and state Sen. Alex Padilla of Pacoima, who authored the bill.

“It will without a doubt have a positive impact in terms of food safety,” Conway said.

He added that San Diego, San Bernardino and Riverside counties already had similar guidelines at the local level, and they had measurable results in decreasing the amount of food-borne ailments. Those counties are exempt from the law, given their current programs.

A similar program has been required for at least one manager at every restaurant for about a decade, Conway said, and the new comprehensive certification is modeled on that, but not as intensive.

The test, which must be passed with a score of 70 percent or better, covers six topics: food-borne illness, including terms and types; the relationship between time and temperature as it affects food-borne illness; the relationship between personal hygiene and food safety; methods of preventing food contamination; procedures for cleaning and sanitizing utensils and equipment; and problems and solutions concerning temperature control, cross-contamination, housekeeping and maintenance.

That, however, does not sit well with some restaurant workers.

“Well I’m mad I have to spend my money on it, and I really don’t think it’s going to make people more careful with food handling,” said Summer Johnston, an 18-year-old Starbucks employee.

“I definitely think that the company should have to pay for it,” she added.

Clarence Wong, a manager at Taro’s by Mikuni, said, "There was an initial fear about how much it would cost us if we had to pay for everyone to take the test, but because the employees are now paying for their own cards, it's now a matter of the employees making sure to meet the standards before the deadline so that they can work.”

Records of cards – such as photocopies – must be kept by employers, and employees do not need to carry the cards with them when they work, according to an FAQ page put out by the San Francisco Department of Public Health, which also lists exemptions for certain groups of employees and restaurant types.

Employers who cannot produce cards for their employees will be in violation of the law, and that violation can be prosecuted as a misdemeanor.

Conway said the card belongs to the worker, and only one is needed, renewed every three years.

The test can be taken here, and the certificate can be printed.

“It was meant to kind of give employees maximum flexibility,” he said. “A fair number of people working in the restaurant industry work several jobs, and they can use the same card wherever they go.”

He added that since it is statewide, people who live in Sacramento and go to college in a different county can use the same card if they have jobs in both places.

“We’re all for it,” said Patrick Mulvaney, owner of Mulvaney’s B&L. “I think it’s pretty cool, because it makes sure everybody is up to snuff and on the same level.”

He compared it to needing a license as a taxi driver or a cosmetology certificate to style hair in a salon.

Mulvaney said some of his workers without access to computers used one at the restaurant, and though all of his workers can read, he said that if they couldn’t, a manager would have to sit down and go through it with them, making sure it was all understood.

“I think it seems like a good idea, and it makes sense intuitively for me,” he said. “Everybody should know that things need to be under 40 (degrees) or over 140 (degrees) and the reasons it’s OK to leave vinegar out but not milk.”

Some employees at local restaurants doubt Conway’s assertion that the law will have any real effect.

"Basically, I think this is just a way for the state to get money, and every year there will be some way for them to make it more expensive,” said Taro’s by Mikuni Head Hostess Katrina Ewbank.

“Each restaurant has their own training already, and I honestly don't think, if people weren't practicing cleanliness before, that they'll all of a sudden be super-clean,” she said. “Though, I think people might just feel better knowing that restaurants are requiring their workers to do it."

Christopher Weiss, a 21-year-old employee of New York Pizza and Plus, agreed.

“It wouldn’t upset me too much. It just means I’d miss a little bit of work to do the class,” he said. “It sounds like (the food handler card) would be necessary, but when you’re actually working with food, even after taking classes, you tend to do it your way. Doing a class kind of seems ridiculous.”

Employees may grumble, but it is required by law, and not having it will mean being unemployed.

“It’s theirs, but they need to have it.... If there is a health inspection, (inspectors) will ask for it,” said John Ruffaine, co-owner of Giovanni’s Old World Pizzeria. “As soon as it is enforced, if they don’t (have) it, they are without a job. They are not allowed to work (in food service) anymore.”

He added that employees not having the cards would be akin to the restaurant operating without any other permit.

A number of Ruffaine’s employees had already received their cards when questioned by The Sacramento Press in advance of the law's effective date.

“The funny thing is, it seems they say they feel better about themselves because they feel more important about it – they have something that says that they can handle food. Their spirits are uplifted after taking it,” he said.

Ruffaine said the test involves a lot of common-sense items, but that they are important to prevent food contamination.

“Unlike us, there are many places that don’t really inform staff on not only how to properly handle food, but detergents,” he said.

Olive Garden server Teona Garza said the test is a pain, and she found out about it from other servers.

“We have to get it on our own,” she said. “It's a boring test, and (Olive Garden) is making us pay the fee. But they said we have to get it or we won't be employed."

For more information on the food handler card, click here.

The test, administered by ServSafe, and frequently asked questions can be found here.

Brandon Darnell is a staff reporter for The Sacramento Press. Follow him on Twitter @Brandon_Darnell. Sacramento Press editorial interns Amy Wong, Nha Nguyen, Elizabeth Orfin and Taylor Miles contributed to this article.

Ask the County Law Librarian - Swimming Pool Safety Laws

2011-06-30T23:25:07Z

Q: I recently purchased a home in a nice, family-oriented neighborhood. My neighbors to the left of me have a large swimming pool, which their young children and the children’s friends frequently play in. I’ve noticed that the pool doesn’t have any sort of barrier around it. Isn’t there a law that states pools must have a surrounding fence to protect young children from an accidental drowning? If so, is it my duty to report them?
-Rick

A: With summer upon us (finally!), it’s certainly true that pool owners should be especially vigilant in regard to pool safety measures for children. Laws and regulations concerning pool safety will vary depending on the state and county in which you reside, so be sure to conduct legal research in the appropriate jurisdiction.

In California, Section 115922 of the California Health & Safety Code requires that private pools built or remodeled after 1998 feature at least one of seven safety devices, specifically: an isolating enclosure or barrier; approved mesh fencing; an approved pool cover; an alarm on each house door that accesses the pool; a “pool-use” alarm that notifies the home owner when someone has entered the water; and any other device that offers equal to or greater protection than the previously listed features. Be sure to read the official code section for further details.

Counties and cities may impose further requirements, as long as those requirements do not conflict with state law. Section 15.64.070 of the Sacramento City Code, for example, requires that new or remodeled pools be enclosed by fences with self-latching gates. Homeowners that fail to take this precaution may be cited for an infraction, per section 9.16.090. To be thorough, consult both the city and county codes in your area: according to Chapter 16.18 of the Sacramento County Code, a violation of the County’s Swimming Pool Code (Chapter 16.36) could lead to a citation for nuisance.

Keep in mind that many current “swimming pool laws” were enacted fairly recently and may apply only to new or remodeled pools. Your neighbor’s pool may not be subject to these requirements, so it’s best to gather all the facts before acting. If you live within the city limits of Sacramento, believe your neighbor’s swimming pool to be in violation of the city code, and would like to report it, you can file an online Code Violation Complaint or call 311.

For more information on pool safety requirements, precautions, and helpful resources, you can read the Sacramento County Public Law Library’s Everyday Law article on Swimming Pools, or visit the California Department of Public Health’s “Safety Guide for Home Swimming Pools and Spas.”

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Fireworks Stands

2011-06-23T20:14:22Z

Q:

I was surprised recently to come home to a fireworks stand in a parking lot adjacent to my house. I feel that it is too close for safety. What are the laws in the city of Sacramento for fireworks stands?

Thank you,

Lori

Thanks for reading and submitting your question! Late June, fireworks stands start appearing seemingly overnight and appear on almost every street corner. Before the individual or organization can set up a fireworks stand in the City of Sacramento, they must first apply for a Permit to Sell Safe and Sane Fireworks. All applicants must provide the city with a public liability policy in the amount of $50,000 and a $25,000 property damage policy and a products liability policy in the amount of $300,000 showing the City of Sacramento as additional insured thereunder.

California has a “State Fireworks Law” that can be found in the Health and Safety Code, Section 12500 – 12728, but it mostly discusses general provisions, definitions, and the classification of fireworks and other pyrotechnic devices. For the answer to your question, we need to look within the ordinances for the City of Sacramento, specifically chapter 8.48.130 which discusses temporary fireworks stands. According to this section, “No fireworks shall be located within twenty-five (25) feet of any other building or within one hundred (100) feet of any gasoline pump or distribution point”. So depending on how close the stand is to your house, there may be a potential violation.

There are other requirements necessary for a fireworks stand, including the number of required exits, two unless the stand is longer than 40 feet, or maintaining two fire extinguishers that are in good working order and easily accessible for use in case of fire. Of course, “No Smoking” signs are to be prominently displayed on the fireworks stand. If you think your fireworks stand is in violation of any of these laws, you can contact your local fire department; chapter 8.48.150 states the fire chief or the chief’s designee may revoke the permit immediately if it is determined there is a violation.

Even though a fireworks stand can be an eyesore, often it is the number one fundraising tool for most non-profit organizations. The stand should be disassembled and removed no later than July 20th.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Neglected Homes

2011-06-16T22:22:45Z

Q: My neighbors moved out a couple of months ago because they were facing foreclosure. They left the house a mess! The yard is totally overgrown, there’s a pile of junk in the driveway, and I’m afraid the pool is going to start growing mosquitoes now that the weather is warming up. Is there anything I can do?
- Karina

A: Unfortunately, you are not alone in this situation. The Sacramento Bee reports that there are thousands of vacant homes in Sacramento, many of which are severely neglected by their owners. According to City estimates, approximately 60 percent of these abandoned properties are bank-owned.

To help combat this growing problem, Sacramento enacted its Vacant Building Ordinance in 2007. Under this law, property owners are required to actively maintain and monitor their property. This maintenance requirement applies equally to individuals, banks, or corporate owners. The Ordinance defines “maintenance and monitoring” as maintaining the exterior of the building, including keeping paint and other finishes in good condition; maintaining landscaping and plants; regularly removing trash and graffiti; keeping the building in compliance with all codes and regulations; and preventing crime and gang activity on the premises. The law also requires posting of the owner’s name and contact information on the front of the building. Vacant buildings not meeting these standards may be considered a public nuisance.

Under Sacramento’s Vacant Building Ordinance, a property owner may be cited with administrative penalties if their property is vacant and not well-maintained for 30 days. The owner can be cited every 30 days until the property is brought into compliance. The initial penalty can be as much as $1000, and up to $5000 for each subsequent penalty. Additionally, the property owner will be charged a $150 monthly monitoring fee, as well as $150 each time a building inspector is called to the property.

If you believe your neighbor’s house does not meet the standards described in the Vacant Building Ordinance, you can file a Code Violation Complaint online or by calling 311. Your complaint will prompt a City inspector to visit the property, and begin the enforcement process. Hopefully this will encourage the owner to clean up the property.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian - Fixing Errors on Your Credit Report

2011-06-01T23:57:28Z

Q. A couple years ago, a collection agency got a judgment against me without my knowledge. After they started garnishing my wages, I filed a motion to vacate the judgment since I was never served. I won, but the judgment is still showing up on my credit report. How do I get it off? Thanks,

Anya

A. Congratulations on getting the judgment vacated. Since you no longer have a judgment against you, the credit bureaus should remove it from your record. Unfortunately, it’s rarely that easy. Credit bureaus (and the public record researchers who sell them the data) commonly miss changes such as an order vacating a judgment, satisfactions of judgment, and the like. (National Consumer Law Center, Fair Credit Reporting, Ch. 4.3.2.5.2.)

So, what do you do now?

Since your report is no longer accurate, your next step –as with any false or erroneous information on your credit report – is to file a dispute. This triggers a “reinvestigation” by the credit bureau which should result in the inaccurate information being removed. Unfortunately, the dispute process is not reliably effective. Consumers frequently have to file numerous disputes, and sometimes lawsuits, before the errors are corrected. (Fair Credit Reporting, 4.5.1.2.) Here’s how to dispute this or any other problems on your report:

Check all of your credit reports. Check all of the “big three” credit bureaus (Equifax, Transunion, and Experian) to find it if all of them show the judgment. You can order a credit report from each for a fee. Once a year, you can get a free credit report from each upon request by visiting annualcreditreport.com.

Mail a written dispute to each of the bureaus that show the judgment. Although each bureau has a toll-free number for disputes, it is best to use a written dispute to create a record of the request. The online dispute forms you will find at their websites give you limited space and don’t let you attach copies of the order vacating the judgment. (They may also never be seen by a human being.)

There is no required form for a written dispute request, but it should include all of the following:

Thorough identifying information, including full name, current and recent addresses, date of birth, telephone number, Social Security number, name of spouse (if any), and current employment information.
A clear description of the judgment on your credit report, along with a copy of the report with judgment circled;
An explanation of why you are disputing the information (e.g., “This judgment has been vacated by order of the court”), along with a certified copy of the order vacating the judgment. Include specific steps for the investigation (“contact the records department of the court at [phone number] to verify this order”);
And finally, a direct request that the CRA delete or correct the information.

Click here for a sample of such a letter on the FTC’s website.

Consider signing your dispute letter under oath, in front of a notary. This converts it to an affidavit, which boosts its credibility and may get it more in-depth review. Fair Credit Reporting, 4.5.2.4.2-9.

Make sure to send it to the correct address for each bureau. Certified mail, return receipt requested, is advised. Keep copies of all correspondence and the return receipts in a separate file folder for each agency. Fair Credit Reporting, 4.5.2.4.3.If you speak to someone on the phone, make a note of the date, person you spoke with, and outcome and put it in the file folder, too.

Under the Fair Credit Reporting Act (FRCA), the credit bureaus must then investigate the dispute, and forward all the relevant data to the information provider (“furnisher”) that sold them the information in the first place. The furnisher then must investigate and report back to the bureau.

When the investigation is complete, the credit bureau must give you the results in writing and a free copy of your report if the dispute results in a change. If you ask, the bureau must send notices of any corrections to anyone who received your credit report in the past six months (two years for reports used for employment purposes).

The bureau will also give you contact information on the furnisher. Some people find that even after they clear an item off their record, it pops up again months later, because the furnisher leaves the inaccurate information in its files, and sends it out again to the bureau. To prevent this, send your dispute directly to the furnisher as well.

What if the dispute is denied?

Disputes often receive very cursory review and are denied almost automatically if the basic information matches the furnisher’s files. If this happens, you can request that a statement of the dispute be included in your file and in future reports.

Unfortunately, you may need to repeat the dispute, perhaps with telephone follow-up, to get a more thorough review. Filing a complaint with the FTC (https://www.ftccomplaintassistant.gov/) or the Better Business Bureau (http://complaint.bbb.org/) is another way to get your dispute taken seriously. If you have tried several times without result, you might even try calling your congressional representative or senator to ask them to call the FTC and demand action.

You may even need to file a lawsuit. If you do, under the FCRA, you may be entitled to actual damages (court costs, attorney’s fees, lost wages, and defamation) and in outrageous cases, punitive damages. The library has several books that may assist you with this, including general books such as Nolo’s Represent Yourself in Court and more specific books such as the National Consumer Law Center’s Fair Credit Reporting, which has an in-depth description of how the credit report business works, detailed information on how to file a lawsuit, and sample court forms.

Visit the Federal Trade Commission’s website for more information on your credit report rights and how to dispute items on your credit report.

Best of luck with your quest to clear your credit report!

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Ask the County Law Librarian -- Is demanding a receipt a violation of rights?

2011-05-26T18:32:33Z

Q. I was wondering if it is legal in California for retailers like WalMart and Best Buy to ask customers for their receipts as they exit the store. As a paying customer, I resent being treated like a criminal. It is because of practices like this that I shop online whenever possible. I understand that membership stores like Costco and Sam's Club have user agreements that allow them to check receipts against items in your cart, but without such an agreement is WalMart violating my rights?

Thank you for your time.

Ally

A. Best Buy and WalMart have certainly started a trend--more and more stores across the country are asking to see receipts upon exiting these days. It may be inconvenient, but it saves you money in the long run—prohibiting theft helps keep your costs down. It doesn’t violate your rights for them to ask for a receipt; you can always refuse and keep going. Only if the security guard then stops you might any violation of rights occur.

California Penal Code (CPC) §490.5(f)(1) provides that “a merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.”

Furthermore, CPC §490.5(f)(2) provides that “[i]n making the detention a merchant . . . may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property.”

CPC §490.5(f)(3) goes on to state: “[d]uring the period of detention any items which a merchant . . . has probable cause to believe are unlawfully taken from the premises of the merchant . . . which are in plain view may be examined by the merchant . . . for the purposes of ascertaining the ownership thereof.”

And, in CPC §490.5(f)(4), “[a] merchant . . . having probable cause to believe the person detained was attempting to unlawfully take or has taken any item from the premises . . . may request the person detained to voluntarily surrender the item . . . . Should the person detained refuse to surrender the item . . . a limited and reasonable search may be conducted . . . in order to recover the item. Only packages, shopping bags, handbags or other property in the immediate possession of the person detained, but not including any clothing worn by the person, may be searched pursuant to this subdivision.

Finally, CPC §490.5(f)(7), ‘[i]n any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances.

So . . . if you refuse to show a security guard your receipt and continue walking to your car with your bag of merchandise, does that constitute probable cause to detain and possibly search your bags? It depends upon the circumstances, but most likely, yes. What would you think if you were in the security guard’s position?

What if the security guard looked in your pocket for your wallet and pulled the receipt out of there? Would that be a violation of your Fourth Amendment right to be free of unreasonable searches and seizures? Nope, the Fourth Amendment only applies to police officers and other state actors, not to private store employees. You may be successful in a suit against the store for false imprisonment, however, because the California state statute specifically excludes clothing from the parameters of a limited and reasonable search.

Whatever you do, don’t overreact. You are not being targeted or insulted; everyone is being asked to present their receipt, so don't take it personally. You don’t want to end up like the Bethlehem, PA, man who was sentenced to six-twelve months in jail for yelling at and threatening the Wal-Mart greeter who asked to see his receipt, or the Utah Wal-Mart shopper who now faces criminal charges for disorderly conduct because he cursed at a greeter, threatened to injure a security guard, and screamed at police officers who were called to the scene.

If you really just cannot bring yourself to show them your receipt, don't lay yourself open to criminal charges by aggressive or belligerent behavior. Remain calm and continue walking. If you're detained and think the store security guard acted unreasonably, remain cool and call the police to handle the matter. Especially if you've got nothing to hide.

www.saclaw.org

Ask the County Law Librarian - Neighbors and Their Trampolines

2011-05-19T22:54:17Z

Q. I share part of a fence with the neighbor behind me and they put a trampoline up against the fence so when their kids and friends jump they clear the top of the fence by a couple feet and look into my yard and home. Their yard is higher on the hill than mine which makes the trampoline sit even higher at the fence, and my yard is an odd wedge shape, narrowing on the side they have the trampoline so that the distance from my bedroom and living room window directly to where the trampoline sits is only about 10 yards. I've explained and asked them nicely once if they could "scooch the trampoline over a bit." This made the mom defensive and unreasonable and she later squirted me with her hose over the fence. I am embarrassed having kids, usually several at one time, jumping and looking over right into my bedroom just yards away when I'm sometimes in bed. Moving the trampoline a few yards away would solve the problem. Is there any law or protocol regulating fence privacy? Thank you.

Cathy

A. When an issue between neighbors arises, there are many options available to those willing to invest a little time and effort into preliminary research. “Neighbor law” is usually governed locally, so your first step might be to survey the options closest to you.

For example, if you and your neighbor belong to a homeowners’ association (HOA), subdivision, or other development, you might check the by-laws (also called Covenants, Conditions, and Restrictions or CC&Rs) for any limitations, restrictions, or prohibitions relating to trampolines or other play structures. If your neighbor isn’t technically violating any rules, you might have the option of initiating an informal complaint process with the association. You can find more information on homeowners’ associations online or at your local county law library.

You will also want to research your local city and county ordinances. Some city and county ordinances regulate the location of “accessory structures,” though what constitutes an accessory structure will vary depending on the jurisdiction. For example, Sacramento City Code 17.80.050 considers some children’s play structures as detached accessory structures (swing sets, for example) and accordingly provides minimum installation requirements. However, the ordinance does not consider mobile play structures as accessory structures and thus these structures are not regulated by county ordinance. Sacramento County Code §16.18 pertains to nuisances and available remedies, though generally the term ‘nuisance’ refers to an act or device that jeopardizes one’s safety or health. Nonetheless, a thorough look at your local county and city codes is highly recommended for all neighbor law issues. Most California city and county codes can be found online or in print at your local county law library.

At least one California city has dealt with this type of situation before. Earlier this year, Mill Valley’s City Council met to determine whether a trampoline could be considered an accessory structure and thus be subject to the city’s zoning laws. After considering a fact pattern very similar to yours, it concluded that trampolines were not accessory structures and therefore could not be governed by city ordinances.

Though many neighbor law questions can be answered by consulting local resources, some issues are governed by state law. California Civil Code § 3479, for instance, governs “private” nuisances that are “indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…”

If you feel you have a cause of action based on a state law, the proper forum would be either small claims court (for monetary damages) or your county’s superior court (for an injunction and monetary damages). However, this route is likely to be both time-consuming and costly, and your claim first must meet certain legal standards and have evidentiary support. You can find California statutes online at www.leginfo.ca.gov/calaw.html

One helpful book that discusses all of these resources and many more is the 7th edition of Neighbor Law: Fences, Trees, Boundaries & Noise, published by Nolo. Nolo Press is a Berkeley-based publishing house that specializes in self-help law books written with the layperson in mind. Neighbor Law’s introductory chapter contains information on “tackling” a neighbor problem, including sources of preliminary research, techniques for approaching the neighbor, and methods for pursuing the issue (e.g. the local authorities, mediation, or court). For more information on mediation, see Ask the County Law Librarian: Fence Dispute and Alternatives to Court.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Damages for Security Breach of Sony Playstation Network

2011-05-13T00:17:38Z

Q:

I saw your column on Sac Press and thought maybe you can help. I am a customer of Sony’s PlayStation Network for online gaming, recently they had a security breach and Sony notified me that some of the information released to hackers includes my full name, address, phone number, email address, PlayStation user ID and password, and credit card information, just to name a few. I know this info has gotten into the wrong hands due to the huge amount of spam email I am now getting. My concern is primarily with identity theft as my credit card company has stated they are aware of the issue and I have zero fraud liability, but some of my friends may not be so lucky as they used debit cards and I was told that those do not have nearly the same protection. Is Sony liable if my identity is stolen? Can I make them pay for something like a credit freeze to keep the bad guys from buying a car in my name? And what about my friends who were not lucky enough to have a credit card and used a debit card for their online gaming? I don’t even know where to start, can you please help?

Jim

Thanks for reading and submitting your question! It appears that the lawsuits for damages against Sony are already beginning. A Massachusetts woman was among the first to file a lawsuit against Sony over a hack into the company's PlayStation Network video game service. According to the Boston Business Journal, the class-action lawsuit was filed in U.S. District Court in Boston on May 5, 2011. The plaintiff is alleging Sony stored and retained customer data without authorization, failed to maintain a proper firewall, and did not properly encrypt the data it held. The suit also calls the electronics giant out for delaying for almost a week after it knew of the breach, to notify affected customers. You can read a copy of her complaint for more details of the case.

The real question is not whether or not you can file a lawsuit to recover damages, but rather, once you file your lawsuit in court, will you be able to win your case? Well, in order to prevail in court, you will most likely have to prove that actual damages have occurred. So it would depend on if you actually suffer damages from this incident. According to an article written by Mark Foley, lawsuits seeking to recover significant damages based on the loss of, or unauthorized access to, sensitive personal information have not been especially successful for plaintiffs since inconvenience, and threat may be hard to prove in court. Most companies try to alleviate damages by offering to provide identity theft monitoring to affected customers and Sony is no exception.

ABC News is reporting that Sony is now offering 12 months of free identity theft protection to affected customers. Customers have until June 18th to sign up and should be receiving a detailed email soon with information on how to sign up. If you don’t receive your email, I would contact Sony as soon as possible in order to get further details. Ultimately, if your identity is stolen, you can read the law library’s Everyday Law article for tips on what you can do to protect yourself.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday's column. Even if your question isn't selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

City mulls new taxi regulations

2011-05-04T00:54:20Z

The City Council will decide within the next few months whether to stop issuing new taxi permits, and the council’s Law and Legislation Committee will take more time to decide whether central dispatching systems should be required for taxi companies.

“If approved (by the City Council), no new taxicab vehicle permits will be issued or renewed,” said Dafna Gauthier, business permit manager for the city. This will limit the number of cabs, she said, referring to the moratorium.

“There seems to be a consensus that there are too many taxis in the downtown area,” she added.

That was one part of a proposed ordinance city staff has been working on since last October.

The city’s taxi fleet was essentially unregulated until about seven years ago, according to Councilman Steve Cohn, adding that for the more than 20 previous years, “we ended up with about the worst taxi system there is.”

At the time those regulations were put in place, Sacramento had 258 taxis, a number that has since increased by 66 percent to 428, with population growth that does not come close to equaling the growth in taxis, according to the staff report for Tuesday’s meeting.

Councilman Darrell Fong said the concentration of taxis downtown is too great.

“I see them queued up in lines and arguing over parking spaces,” he said.

Cohn and Fong both supported the moratorium, while Councilman Jay Schenirer said he opposes limiting the number.

“We have a competitive business (environment),” he said. “People should be allowed to compete.”

A second piece of the ordinance is more controversial and will come back to the Law and Legislation Committee at a date to be determined, when Councilwoman Sandy Sheedy, who also sits on the committee but was absent from Tuesday’s meeting, will be available.

Schenirer said that as the city faces a smaller workforce with the impending budget crisis, he wants to make sure it “rises to the level of priority” to warrant using diminished resources.

The dispatch piece of the ordinance would require taxi companies to have central dispatching stations where drivers are given fares via two-way radio or mobile data terminals – in-car computers – rather than using cellphones, as some companies currently do.

Frederick Pleines, president of Yellow Cab Co. of Sacramento was one of about 10 people who spoke during the public comment session on the proposed ordinance.

He said his company already uses an automated dispatching system that provides better service, sending callers a text message letting them know how far away their cab is along with the driver’s name.

Another asset to an automated system, he said, is that it stores data for a year, and that can help law enforcement. He added that police ask him about four times per year for information about incidents in which suspected criminals use taxis for transportation.

“These are all good things,” he said. “The problem is, if you don’t require everyone (to have the same system), it makes us weaker.”

He also agreed that there are too many cabs in the city.

Dave Nirop, assistant manager of the AAA Association taxi company, said his drivers are opposed to the idea of the dispatch system.

He cited the cost of the system as a problem, and he said there is a customer service issue to consider as well.

People who call cabs, he said, oftentimes find a driver they like, and they want to get the same driver the next time they need a cab, so they will call his or her number directly, something he said a dispatch system might not allow.

Requiring taxi companies to use low-emission vehicles is something Schenirer, Cohn and Fong all agreed should be looked at in the future, but will likely have to be phased in, as it would present a large up-front cost to taxi companies.

Brandon Darnell is a staff reporter for The Sacramento Press. Follow him on Twitter @Brandon_Darnell.

Ask the County Law Librarian - Fence Dispute & Alternatives to Court

2011-04-28T21:18:04Z

Q. There is a boundary fence between me and my neighbor's side yard. It is leaning and I have propped it up for the last time. I have gotten two estimates from reputable fencing companies. My neighbor is refusing to pay half to replace it. I don't want to go to court. What else can I do?

A. More people are like you wanting to avoid going to court and solving matters using alternative dispute resolution. Using alternative dispute resolution can save you time because it is easier and quicker to write up an agreement than it is to go to court. It can save you money on attorney's fees, court costs and other expenses. It also gives you more control over the case and the outcome since you are actively creating a workable solution.

You may want to consider mediation. Mediation is a voluntary process in which two or more parties involved in a dispute work with an impartial party, the mediator, to generate their own solutions in settling their conflict.

The mediator's role is to facilitate communication between the parties, not to impose solutions. Mediators do not advise, take sides or render a judgment. Instead, the mediator will work with all the parties to help them reach a mutually acceptable resolution.

Private mediators are listed in the yellow pages. Also some lawyers advertise in their phone book listing as providing mediation services. In Sacramento there is the non-profit that provides mediation services: Sacramento Mediation Center a program of California Lawyers for the Arts. http://sacmediation.org/.

As a first step, Chapter 11 of the 7th edition of Neighbor Law: Fences, Trees, Boundaries & Noise by www.nolo.com has detailed information about state and local laws regarding fences. It also has a section on Responsibility for Maintenance.

Coral Henning, Director
@coralh & @saclawlibrarian

UC Davis Professor to give 'Social Media & Social Uprising' lecture at The California Museum

2011-04-15T05:17:03Z

In the past several years, social media has played an ever growing role in calling for, organizing, and executing social uprisings and upheaval around the globe. Increasingly, these uprisings are bringing about significant social change in not only their country of origin but amongst those involved via social media channels. In contrast, some countries are dealing with unrest and the threat of uprisings by locking down Internet access and jailing citizens for sharing certain information online.

The Social Media Club of Sacramento (SMCSac) makes a monthly habit of examining the various ways social media is impacting our everyday interactions, culture, and society at large. The club has partnered with the California Museum to explore the fascinating topic of the role of Twitter, Facebook, Google, and other social media channels in bringing about global social change. Their upcoming event, Social Media and Social Uprising, will be held Tuesday, April 19th at the California Museum on 10th & O streets. Featuring keynote speaker Professor Anupam Chander, a leading scholar in the law of globalization and digitization at the UC Davis School of Law, SMCSac will explore how social media paves the way for citizens to shift from 'friends' to revolutionaries.

In his keynote address, Professor Chander plans to touch on topics that range from the role social media plays in unfree societies, to the corporate social responsibility of companies like Google and Facebook. After the talk, the discussion will be opened to the audience for a Q&A with Professor Chander. Audience members can discuss these topics further, or explore how these insights can be applied to their lives, community, and understanding of global social issues.

The museum gallery will open at 5:30pm, and the evening will commence at 6pm with a wine and appetizer reception hosted by Grace Patriot Wines and the new downtown restaurant Blue Prynt. Professor Chander will begin his keynote address around 7pm, with discussion and networking to follow.

Advance tickets are recommended and can be purchased online. If available, tickets may also be purchased at the door on Tuesday. For more information on the Social Media and Social Uprising event, Professor Anupam Chander, the California Museum, or SMCSac, visit the event website or call (916) 653-7524.

Disclosure: Megan Emmerling is a member of the Social Media Club, Sacramento

Ask the County Law Librarian – There Oughta Be a Law

2011-04-14T15:38:31Z

Q: I have a great idea for a new California law. Our kids get nothing but junk food at their school cafeteria for lunch. They should be learning about – and eating – fresh, healthy food. I want to get a law passed that requires every elementary, middle and high school with a school lunch program to also have a school garden to supply students with fresh fruit and vegetables. How do I get this law passed?

Paula

A: Dear Paula,

Laws are created in one of two ways in California: through the legislature, or through an initiative.

Bills in the State Legislature

Most new laws (or changes in laws) start when a state senator or Assembly member drafts and proposes a bill. People in a certain age range may remember the Schoolhouse Rock cartoon “I’m Just a Bill,” describing this process for federal laws. It’s similar in California, but in real life, the process is complicated by many sub-steps and opportunities for delay. Bills go through a lengthy process of debate, amendment and approval, first in one House then the other, before being signed (or vetoed) by the Governor.

Call, write, or email your representative to suggest a bill. You can also contact the representative’s office to schedule an appointment with him or her. Contact the local or Sacramento office to set up a time to meet. Be prepared with information about the problem your bill would address, how current law deals with this problem, and how your suggestion would improve things.

You can contact any representative, but you are more likely to get a personal response from the Assembly member or senator who represents your own district. To find out who your representatives are, visit “Your Legislature” and enter your zip code.

Once a bill is introduced, there are many things you can do to help get it passed, from organizing letter-writing campaigns, writing letters to the editor, and offering to testify at committee hearings. Tips on these and other methods of lobbying for your bill can be found in “A Citizen’s Guide to Lobbying” and “How to Lobby the California State Legislature,” both put out by the state government.

You can trace the progress of any particular bill through the lengthy process of debate, amendment, and approval by visiting the official California legislative information site’s “Bill Information” page. You can even sign up for an email whenever something happens with your bill.

Passing a Law by Popular Vote: The Initiative Process

California is one of 24 states that use the initiative process. The initiative is the power of the people of California to propose statutes and amendments to the California Constitution (Cal. Const., art. II, Section 8(a)). The laws governing the initiative process are mostly at California Election Code, starting at section 9000.

Initiatives are placed on the ballot if the sponsors can collect enough signatures to qualify – 5% of the number of voters in the last gubernatorial election (currently 504,760 ) for statutes, and 8% (currently 807,615) for Constitutional amendments. If approved by a majority vote, an initiative becomes law the next day.

Getting an initiative on the ballot takes a long time – if you start now, you might be able to get one on the June 5, 2012 ballot. There are also very specific requirements for format and signature gathering. You can read about the process in the California Secretary of State’s “Initiative Guide.”

The first step is to write the text of the law. Next, the sponsors are required to submit it to the California Attorney General, who writes the official title and summary, and if necessary, submits it for fiscal analysis. The AG's office has a good explanation of the process on its website. After that is complete, the sponsors have 150 days to circulate the petition and collect the necessary signatures. Both volunteers and paid signature-gatherers are allowed.

Once the signatures are gathered, the sponsors file the petition with the officials in each county, who count the signatures and report the results to the Secretary of State. If the initiative gathers enough signatures, it goes on the next statewide ballot.

For more information, visit the California Secretary of State’s website or contact the Secretary of State's Initiative Coordinator at (916) 657-2166.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

Legislation could force Kings to pay

2011-04-12T00:20:36Z

Senate President Pro Tem Darrell Steinberg (D-Sacramento) introduced a bill Monday that would require professional sports teams to pay off all debt involving taxpayer dollars to the municipality in which they are located before signing an agreement to move to another California city or county. ~~bar one California city from issuing bonds to lure a professional sports team from another city in which existing bonds had not been paid.~~

It would effectively require that the Sacramento Kings repay the city $77 million before the bonds approved by the Anaheim City Council could be issued.

“It’s all about public dollars involved not just in the situation currently pending with regards to the (Sacramento) Kings, but any other pending or future similar situations,” said Mark Hedlund, spokesman for Steinberg.

“We’re not trying to stop business from moving,” he added, “we’re trying to protect taxpayer money – city bonds and loans are taxpayer dollars.”

The bill, SB 652, was authored by Steinberg and coauthored by Assemblyman Roger Dickinson (D-Sacramento), Senator Ted Gaines (R-Fair Oaks) and Assemblyman Richard Pan (D-Sacramento).

It was introduced as an urgency measure, Hedlund said, meaning it requires a two-thirds vote, but would go into effect immediately upon passing, as opposed to other laws which are implemented at the beginning of subsequent calendar or fiscal years.

“We’re obviously trying to have it move as quickly as it can,” he said, adding that it will now have to go through the appropriate committees in both the Assembly and the Senate before it can be voted on and sent to Gov. Jerry Brown’s desk.

“I don’t know if that means it’s going to take a few weeks or a couple of months or whatever,” Hedlund said, adding that it will affect any agreements made after Jan. 1.

According to a press release issued by Steinberg’s office, “SB 652 also requires any professional sports franchise previously entering into a financial agreement with a California local government entity to provide a ‘bond, undertaking or deposit’ adequate to ensure its obligations will be satisfied before that franchise signs an agreement to move to another California location.”

The bill includes all professional sports and is not specifically intended to target basketball, Hedlund said.

“Pro sports teams frequently create partnerships with local government, but let’s not forget these are tax dollars at work,” Steinberg said in the release. “No one is saying sports franchises, like any other business, shouldn’t be able to move to another city. However, taxpayers in one city shouldn’t be left holding the bag for the benefit of another city.”

Dickinson spoke with The Sacramento Press Monday afternoon and outlined the reasons for the bill.

“It’s hopefully a measure that would provide the assurance to any community in California that’s going to be put in a position of losing a pro sports team to another place in California would at least have any financial obligations by the team to the community taken care of,” he said.

The bill would essentially enforce contract language that is already in place in the case with the Kings as well as protect other cities in the future, Dickinson said, adding that he thinks it may be necessary with the Kings as well, despite the 1997 contract language.

“I think it’s unfortunate that we even have to contemplate legislation of this kind,” Dickinson said. “One would hope the statements by the Kings organization by this point would have been more clear and definitive, their responses to the city more straightforward, that it would not leave doubt in the minds of many people.”

Gaines and Pan expressed similar sentiments in the press release.

“Sacramento taxpayers can’t play second-string to Anaheim,” Gaines said. “Losing the team is bad enough, and there is no way Sacramento can eat the nearly $80 million owed by the Maloofs.”

The private sector is already gathering signatures in Anaheim to stop the bonds being issued before voters can approve them in an election. For more information on that effort, click here.

Brandon Darnell is a staff reporter for The Sacramento Press.

Editorial Note: A correction has been made to this story after it was published. The incorrect information has been struck out and the correct information has been added.

Ask the County Law Librarian – Disqualification of Judges

2011-04-07T19:29:13Z

Q. My wife and I are getting a divorce, and the judge is making all her rulings in my soon-to-be-ex’s favor for no good reason that I can see, except that the judge doesn’t like me—she seems to be biased against men. What can I do to get rid of this judge? Can I report her to the State Bar?

A. The law and procedure for the disqualification of California superior court judges, court commissioners, and referees, is in the Code of Civil Procedure (CCP), sections 170 through 170.6. There are two basic methods a party can use to ask that a judge be disqualified from their case:

1) CCP §§ 170-175 provides the justification and procedure whereby a party may take action toward disqualification of a judge “for cause.”

2) CCP § 170.6 guarantees to parties the right to disqualify a judge without any showing of cause whatsoever. This is called a peremptory challenge.

A Section 170.6 challenge is permitted at any time before the commencement of a trial or hearing on a substantive matter in either civil or criminal court. Each side is allowed a peremptory challenge one time only. You have no control over the judge assigned to take over your case, so avoid hasty or ill-informed decisions to disqualify.

A peremptory challenge is usually made by a written motion to the court, done in proper format with specific language and supported by a declaration or affidavit made under penalty of perjury. An oral motion under oath is also allowed. There is no hearing or ruling on a timely and properly-formatted peremptory challenge. The replacement is automatic, and the case will continue as quickly as possible, perhaps hours or days, under a new judge.

There are specific deadlines and strict time frames in which a peremptory challenge must be made, depending on your court’s calendaring system. Improper timing is the number one reason that challenges are rejected.

Even if your deadline has passed for filing a timely peremptory challenge, however, you still have the right to challenge the judge for cause under CCP § 170.1. Grounds for a just cause challenge (relationship, financial interest, etc.) can arise at any time during the proceedings. Therefore, a challenge for cause is timely if raised “at the earliest practicable opportunity” after discovering the grounds for disqualification, even during trial.

Step by step procedures and sample formats for written motions, supporting declarations, and affidavits for both of these disqualification methods can be found in a set of books called California Forms of Pleading and Practice, Volume 27, Chapter 317, “Judges.” You can find this set of books at the Sacramento County Public Law Library.

The State of California Commission on Judicial Performance, rather than the State Bar, reviews complaints that charge judicial misconduct. Procedures and the form of complaint for judicial misconduct can be found on their website.

A judge’s incorrect ruling on its own does not constitute judicial misconduct. A judge who commits legal error is subject to investigation and possible discipline only if the legal error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duties. If the incorrect ruling or legal error does not meet these standards, then it is not subject to disciplinary review. However, it may be grounds for an appeal in your case.

www.saclaw.org

Ask the County Law Librarian - Obtaining Evidence for a Contested Traffic Citation

2011-03-30T19:35:06Z

Q. I’ve decided to contest a speeding ticket I received recently. How do I obtain all of the police records and evidence against me?

A. Before you contest your citation, you may want to consider submitting an “Informal Discovery Request” to the issuing agency. Under California Penal Code Sections 1054-1054.7, the prosecution in any criminal case (including infractions) is required to provide the defendant with copies of all written statements, reports, and logs regarding the case. This code section also applies to a copy of the engineering and traffic survey if your citation is a radar case [Cal. Penal Code § 1054.1(f)].

Fortunately, you can submit this request before you formally challenge the citation, in order to review evidence the issuing party may use against you in court. Your copy of the ticket, for example, will not include the notes about the stop that the issuing officer most likely made on the reverse of his or her copy of the citation. Once the issuing agency receives your request, it has 15 days to provide the relevant information. One caveat: the request requires you to submit all of your evidence as well: you will include the names, addresses, and statements of any witnesses you may have with your request.

There is no statewide “official” discovery request form for Section 1054 requests, but a book published by Nolo Press and written by Attorney David W. Brown called Fight Your Ticket in California contains both blank and sample completed forms, as well as instructions. This book also contains the information and strategies you would need to:

-determine if your ticket is beatable
-challenge speeding citations & other violations
-present your case in court
-appeal a conviction

Should you choose to formally challenge the citation, you can subpoena relevant records, equipment, and the issuing officer’s testimony during the trial prep phase of the case by using a Subpoena Duces Tecum (CR-125/JV-525). Samples of this form are available in the book, and the form is available for free online from the California Courts website at http://www.courtinfo.ca.gov/forms/fillable/cr125.pdf You will need to read the information carefully and conduct further research to be sure you’ve done everything properly.

Fight Your Ticket in California is available directly from the publisher at www.nolo.com, from most large bookstores and libraries, and from your local county law library. To find the law library nearest you, go to www.publiclawlibrary.org

For online resources about contesting a traffic citation, you can find more information on the Sacramento County Superior Court website at http://www.saccourt.ca.gov/traffic/traffic.aspx and on the California Courts Self Help website at http://www.courtinfo.ca.gov/selfhelp/traffic/info.htm.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Domestic Violence Restraining Orders

2011-03-25T01:32:44Z

Q-
I am afraid of my boyfriend. We just moved in together last month, and ever since then, he has been shouting and cursing at me. He also pushed me down and punched a wall. I want to break up with him, but I am afraid he will hurt me. Can the law help protect me?

Anonymous in Midtown

A-
I am sorry to hear about your situation! If you feel in are in immediate danger, call 911!

California’s Domestic Violence Protection Act defines domestic violence as abuse toward an intimate partner or family member. The abuse can range from verbal threats, annoying telephone calls, stalking, hitting, and destruction of personal property. If you ever have to call the police, ask for an emergency protective order. A police officer that answers a domestic violence call can ask a judge for an emergency protective order at any time of the day or night. Explain in detail to the police officer why you're afraid. The emergency protective order starts immediately and can last a week. The judge can order the abusive person to leave the home and stay away from you and your children for up to a week.

If you want protection for more than a week, you can ask to the family court to issue a Temporary Restraining Order (TRO). If the restraining order is granted, it typically requires the abuser to stay at least 100 yards away from you, and have no contact with you, including no email or telephone contact.

The Sacramento family court offers a free workshop on form preparation fro domestic violence restraining orders, Monday and Friday, excluding court holidays, at 8:45 a.m. This class is for both men and women and is held in the Self-Help Computer Room, Room 113A, on the first floor of the William R. Ridgeway Family Relations Courthouse, 3341 Power Inn Road. No appointment is necessary. For those who cannot attend the workshop, the court encourages you to complete your forms using TurboCourt. This program uses simple questions to gather all of the necessary information to apply for a domestic violence restraining order. If you will be filing in Sacramento, be sure to include the mandatory local forms.

You may want to contact WEAVE, INC. (Women Escaping a Violent Environment). WEAVE is a local nonprofit organization that was created to serve domestic violence survivors and their families in Sacramento County by offering counseling and other services including; dissolution & restraining order workshops, and a pro bono legal clinic or free attorney consultation for domestic violence.

Keep in mind that a restraining order can help protect you, but it is still just a piece of paper. A restraining order can lower, but not eliminate the risk of ongoing violence.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask The County Law Librarian - Collecting on a Small Claims Judgment

2011-03-11T20:22:07Z

Q. I just won my small claims case against my landlord for wrongfully withholding my security deposit. Does the court collect for me?
Jenny

A. The court will not collect the money for you. The court can issue the orders and other documents you may need to collect your judgment from the debtor. You can start the collection process when the time to appeal runs out (30 days after entry of the judgment); or if there was an appeal and you won, after the appeal decision (judgment) is sent back to the small claims court, usually about 10 days after the appeal decision.

Encourage the debtor to pay you voluntarily and don’t resort to harassment or illegal collection methods. Some of the most common collection techniques include: placing a lien on real property, placing a lien on business property, seizing wages and seizing bank accounts.

If the judgment debtor does not pay within 30 days after the court clerk mailed the Notice of Entry of Judgment the debtor must send you for SC-133 Judgment Debtor’s Statement of Assets. This form will tell you what property the debtor has that may be used to pay the judgment.

Sometimes the debtor won’t send the completed form and then you can file SC 134 Application and Order to Produce Statement of Assets and Appear for Examination. This summons the debtor back to court and you can ask the debtor questions about his or her assets or property. You can ask about things like where he or she works, how much he or she earns, bank accounts, stocks, other income sources, property and belongings, and anything else that can be used (or sold) to pay the judgment.

Once you know about the judgment debtor’s income and property you can ask the sheriff to take that property to pay you. To do this fill out and ask the court clerk to issue Form EJ-00 1 Writ of Execution. Take the form to the Sheriff’s civil division with a description of the debtor’s property that you want to levy on.

Click on the link for more information on collecting your judgment. The law library has information on this too. One good resource is Nolo’s How to Collect When You Win a Lawsuit in California.

Lastly, keep in mind that not all judgments are collectable because the debtor may not have any income or property of value.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the Law Librarian: The Perils of Co-Signing Loans

2011-03-04T01:19:31Z

Q. I co-signed my sister’s car loan. She made payments for the first two years, but now she is unemployed and I’m worried she might not be able to make the payments. What rights do I have? If I have to make the payments, do I at least get the car?

Janice

A. It sounds like you are well aware that if your sister doesn’t make the payments, you will have to. Sometimes people co-sign a loan as a favor, without really understanding just how big a favor it really is – the co-signer isn’t just vouching for the borrower, or offering to pay half the debt, but is actually accepting responsibility for paying the whole debt if needed. Once the borrower misses a payment, the creditor can go after the co-signer without even trying to get the money from the borrower first. Read the FTC’s brochure “Co-signing a Loan” for more information about the risks of co-signing and possible protective measures.

Federal and California law require that you be given notice of the serious consequences of co-signing a loan before you sign.

California law also gives you two additional protections. The creditor cannot report you to a credit reporting agency unless it also gives you written notice of the delinquency before or at the same time. And before the creditor provides any information about your obligation to a debt collector, it must first give you written notice of the delinquency. (Cal. Civ. Code 1799.101.) If the creditor fails to give this notice and your credit is injured or you lose money as a result, you can sue the creditor for actual damages or $250, whichever is greater, plus reasonable attorney’s fees. (Cal. Civ. Code 1799.102.)

So what happens if you do in fact end up paying the loan (or worse, being sued for the debt)? You are entitled to sue your sister for repayment. Of course, you may have no more luck collecting than the creditor did. If it does come to that, talk to the Small Claims Advisor if the amount is less than $7,500, or come in to the library to research your options.

You probably can’t get ahold of the car, unless you are listed as a co-owner on the title. Actually, it’s pretty likely that if your sister does default, the creditor will repossess the car, sell it, and come after you and your sister for the remaining balance on the loan.

If you actually want the car, maybe you can buy it from your sister and take over the payments. This could save everyone’s credit rating, although Sis might end up taking the bus for a while.

www.saclaw.org

Ask the County Law Librarian – “Quashing” Improper Service of Court Documents

2011-02-24T16:14:47Z

Q. I was handed a summons and complaint for breach of contract, but I didn't sign for it, so I don’t think it is legal. I want to challenge this in court. How do I do that?

Tom

A. Probably the most common misconception regarding service of the summons and complaint in civil cases is that the receiving party must sign something in order for the service to be valid. A summons may be served by personal delivery of a copy of the summons and complaint to the person to be served. Such service is deemed complete at the time of delivery (California Code of Civil Procedure §415.10). There is no requirement that the person being served sign for anything.

The most common mistake that people make when serving court documents is that they serve the documents themselves, rather than having a person who is at least 18 years of age and not a party to the action serve them (California Code of Civil Procedure §414.10).

Improper service of the summons, however, is not a defense to the underlying facts of the lawsuit, nor does it have any effect on the running of the applicable statute of limitations. You can challenge the validity of the service by filing a motion to quash service of summons on or before your last day to file an answer, or at any later time if the court finds good cause (California Code of Civil Procedure §418.10), but this typically has little effect on a case other than to cause a brief delay. If your motion to quash service of summons is granted, the court will simply require that you properly served.

For this reason, and because of the time and effort involved in preparing a motion to quash service of summons, many defendants choose instead to ignore the issue and simply respond to the lawsuit, assuming they learn about it in time to respond. There is no standardized form for a motion to quash service of summons; and, like most other motions in civil cases, the motion consists of several parts: 1) a notice of motion and motion, 2) a memorandum of points and authorities, and 3) a declaration, with any attachments (California Rule of Court 3.1112). In addition, the motion must be drafted on 28-line pleading paper (California Rules of Court 2.108, 2.111). Although instructions and samples of pleading paper can be downloaded from our website at www.saclaw.org/pages/creating-pleadings.aspx, there aren’t any reputable examples of motions to quash service available for free online. We have both print and online instructions and samples in the Library at 813 Sixth Street downtown, however, and would be happy to show you these resources and, if applicable, how to download samples from the appropriate database.

If the plaintiff in your breach of contract suit is a credit card company or collection agency suing you over a credit card debt, you can find out how to answer the lawsuit on our website at http://www.saclaw.org/pages/respond-to-credit-card-case.aspx. We also offer an "Answer to Breach of Contract Workshop" every Monday through Friday morning in which an experienced paralegal walks you through the entire process of completing the forms used to answer your breach of contract/collection case.

For more on personal service of process of court papers, including a step-by-step guide and an animated video on proper service, go to http://www.saclaw.org/pages/personal-service.aspx

Good luck with your case, Tom, and don’t hesitate to visit us, in person or online, if you need any more help!

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Property Left Behind in a Rental Unit

2011-02-17T23:18:08Z

Q: Up until two weeks ago, I was renting a room in a house. I had become friends with the owner and moved in last summer to help us both out with costs. It became very unpleasant to live with her, however, and in December I gave her our agreed-upon 30 days’ notice that I would be moving out. She didn’t take it well, but I managed to move most of my things out (on my own). Due to a family emergency that took me out of the state for a week, I had to leave a few things behind in the garage. When I got back to town and tried to get my stuff, the owner refused! Is she guilty of stealing my things since she won’t let me pick them up? How can I get my stuff back?
- Jessica

A: This scenario is fairly common, and can happen in any situation in which there is a landlord/tenant relationship; for example, whether someone is renting a unit as part of an apartment complex or, as in your case, renting a room in a house. According to California Civil Code section 1965(a)(1), the landlord is required to return, or allow you to collect, your belongings if your request meets two requirements: 1) the request is made within 18 days of vacating the premises, and 2) the request is made in writing and includes a description of the property that was left. The request must be mailed to the landlord’s current address.

If your request meets both requirements, the landlord is legally obligated to respond within five days of receiving the request. She can ask you (in the form of a bill) to pay reasonable costs for storage; if she does, you must pay the charges and pick up the property within 72 hours of receiving the landlord’s demand. What qualifies as “reasonable?” And how should her written request be delivered? Civil Code section 1965 contains the answers to these questions and provides further information on the landlord's storage of the belongings and any storage costs incurred.

If your request meets both of the above-listed requirements, you agree to pay any costs relating to storage, and your ex-landlord still doesn’t comply, you could sue for actual damages and possibly more, if you believe she acted in bad faith [Civil Code Section 1965(e), (1) and (2)].

If more than 18 days has passed since you moved out and your remaining property is worth less than $300, the landlord is free to dispose of it. If it is worth more than that, the landlord must sell it at a public sale, subtract costs of sale and storage, and turn the rest over to the county. You have a year to claim the net profit from the sale (see Civil Code Sections 1983 and 1988).

As in most legal situations, there are exceptions and qualifications. You should conduct further research to find out how the law applies to your unique circumstances. To read the above mentioned Civil Code sections, go to www.leginfo.ca.gov and select California Law. Put a check box next to the Civil Code, and hit SEARCH. A linkable table of contents should appear. Go to the section you are interested in reading.

Another helpful resource is the book “California Tenants Rights” published by Nolo Press. The book is available at large bookstores, large libraries, directly from the publisher at www.nolo.com and from your local public law library. To find the law library nearest you, go to www.publiclawlibrary.org

For online information, the California Department of Consumer Affairs has made available the publication “Options for a Landlord: When a Tenant's Personal Property Has Been Left in the Rental Unit: Legal Guide LT-5.” The guide was published in 1996, so you’ll want to make certain that the code sections you might rely on are still current. You can do this by visiting www.leginfo.ca.gov and reading the current laws. The department website also offers an online version of California Tenants: A Guide to Residential Tenants' and Landlords' Rights and Responsibilities, for a more comprehensive look at the landlord/tenant relationship.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian – Can I Fire My Attorney?

2011-02-10T20:46:59Z

Q: I hired an attorney for my divorce, but he hasn’t done anything! Everytime I call his office, he doesn’t answer the phone. I leave messages but he never calls me back, he just keeps asking for more money even though I have already paid him way too much already. How can I get rid of him?

Mel

A: I'm sorry to hear that! You have a right to discharge or fire your attorney at any time for any reason or no reason at all, even if you still owe him money for the time spent working on your case. It is a fairly easy process, all you have to do is file a Substitution of Attorney form with the court. When filling out this form, you substitute either your newly hired attorney or yourself, if you plan to represent yourself.

If at the time you let him go, there is outstanding money owed, you will still owe the balance. However, there may be options for disputing the amount owed, especially if you have not been given an accounting of the time and money spent on your case. If you believe that your attorney's bill is too high, you should first talk to your lawyer about the bill, and make your concerns clear. You may find that the case was more complicated and took more time than you realized or your lawyer may agree that a mistake was made on the bill and make corrections. If there is still a dispute, the Sacramento County Bar Association administers an arbitration program to assist clients in resolving fee disputes with their attorneys without going to court. You should contact the Sacramento County Bar Association directly for information on disputing the fee and fee arbitration.

All lawyers who practice in California must live up to ethical standards imposed by the California Supreme Court and the state legislature. You can file a complaint with the State Bar of California if you believe that your lawyer acted improperly, but not just because there is some disagreement between you, or you believe he or she did a poor job. Depending on the seriousness of the offense, a lawyer can be given a warning, put on probation, suspended from practicing law for a period of time, or disbarred - prohibited from practicing law in California. For more helpful information on how to handle a disagreement with your attorney, check out this pamphlet from the State Bar of California.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Consumer Pet Protection Act

2011-01-28T00:38:14Z

Q. I purchased a pug at a pet store in the Bay Area ten days ago and now the dog is sick. I took Sparky to the veterinarian and she has hospitalized him. I think he will pull through. What are my options with the pet store?

A. California’s Pet Protection Act (Health & Safety Code Section 122125 et. Seq.) gives consumers recourse when they discover that their pet is ill within 15 days after taking possession of the pet from the pet store.

First you must get a written statement from the treating veterinarian stating that the dog is sick and is requiring hospitalization (Health & Safety Code Section 122160). The statement must be delivered to the pet dealer no later than five days after the diagnosis is made.

You have three options:
• Return the dog for a refund of the purchase price and reimbursement for reasonable veterinary fees up to the cost of the dog.
• Exchange the dog for another of equal value and get reimbursement for reasonable veterinary fees up to the cost of the dog.
• Keep the dog and receive reimbursement for reasonable veterinary fees up to 150% of the purchase price of the pet.
(Health & Safety Code Section 122160)

Dealers who knowingly sell sick animals are subject to a penalty of up to $1000.

If the pet store doesn’t dispute the diagnosis, the refund and reimbursement must be paid within ten days after the dealer receives the veterinarian’s statement (Health & Safety Code Section 122180)

For future pet acquisitions, our local City Shelter and the Sacramento SPCA are great options for pet adoption.

Get well soon, Sparky.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian – Finding a Will

2011-01-20T17:57:29Z

Q: How can I get a copy of a will? I believe I was named in my mother’s will but I can’t find a copy. Mom passed away recently and my sister has been transferring Mom’s property into her own name.

Marge

A: We hear variations on this question surprisingly often. Usually, there is nothing mysterious going on. Check with the probate court in the county where your mother was living when she died. If a will was filed or a probate was opened, that is where it should be, and the clerk will be able to find it using your mother’s name and date of death.

In many cases, nothing will be on file with the court. This is probably not a sign of any kind of misconduct. Perhaps your mom never got around to writing a will. Maybe she put her property in a trust, so probate is not necessary. Even if there is a will, there may not be enough assets to justify a formal probate, or it might not have been located yet. And, occasionally, people do hide or destroy wills.

Finding the will: If your sister is handling your mother’s debts and assets, you can ask her if she has located the will or trust documents. If not, check with your mother’s attorney. Search her home or office file cabinets and desks. Contact any banks she used, to find out if she had a safe-deposit box there. Banks will usually let family members open a safe-deposit box in the presence of a bank officer to search for a will or burial instructions, although nothing else may be removed. Be sure to bring a copy of the death certificate.

If you believe that your sister has (or had) the will and is refusing to give you a copy or file with the court, you can petition the court to order her to produce it under California Probate Code Section 8201. There is no preprinted form for this, so you would need to either hire an attorney or come in to the law library and do some research. We have samples of this form that you can customize.

If you do find a will, you can start a probate case. In the case, you (or someone) will have to tally up all of your mother’s assets and debts, settle the debts, and then divide the remainder between the beneficiaries of the will, all under the court’s supervision.

What if there is a trust? If your mother set up a trust, there may never be a probate case. However, the trustee would be required to give you notice of the trust, even if you are not named in it, since you are one of the children. (California Probate Code Sections 16060.5-16061.8.) Therefore, if there is a trust, you should receive information about it, including your right to a copy of the documents. If you don’t get notice, you can sue the trustee for any damages you suffer as a result (including attorney's fees).

What if there is neither a will nor a trust? If there is no trust or will, your mother’s property goes to her surviving spouse or domestic partner. If none, her property should be divided equally between her children under California Probate Code Sections 6400-6414. If that doesn’t happen, you can start a case in probate court to enforce your right to your portion. Again, if you decide to go this route, you would need to either hire an attorney or come in to the law library and do some research.

Do keep in mind that any court action will take a lot of time, energy, and money. Unless your mother’s estate (after subtracting any debts) is fairly big, it may not be worth investing time and money, but that is up to you.

Try just talking to your sister first. She may be transferring money to make it easier to pay off debts and wind up your mother’s affairs, and may not realize that she needs to keep you better in the loop. If you still aren’t satisfied, you can decide whether to take that next step of filing in court.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian -- Children's wishes in custody disputes

2011-01-13T18:53:48Z

Q: I’m going through a horrible, messy divorce, and I’m afraid my worst fear may come true—my 13-year-old daughter wants to live with her father instead of me because the cheating bum is “cool” and I’m just an over-anxious nag. Really he is just lazy so he lets her do whatever she wants and I’m the only one who ever enforces any discipline. A friend told me that there is a new law that says a 14-year-old can choose which parent gets custody. Is this true?

A: Under California law, there is no specific age at which children can make custody or visitation decisions. The California Family Code, section 3042(a)), states that a court must “consider” and give “due weight” to the wishes of children who are of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.”

The legislature amended this law in 2010, so maybe that is what your friend is thinking of. The amendment, effective January 1, 2012, requires a court to hear a child who wishes to address the court regarding custody or visitation if the child is14 years or older, unless the court determines that addressing the court is not in the child's best interests. In addition, a child who is younger than 14 years old and wishes to do so may be permitted to address the court regarding custody or visitation if the court determines that hearing from the child is in his or her best interests.

In other words, if the court determines that the child is mature enough to have informed opinions as to custody and visitation, then the court must use this opinion as one factor to consider when making the custody and visitation order.

Whether the minor is of “sufficient age and capacity,” the threshold prerequisite to consideration of the child's wishes, varies with each child. The requisite maturity is not measured by any particular chronological age.

Obviously the new law has not yet been tested in the courts. In previous case law, however, courts have become more receptive as the child approaches teenage years. In Marriage of Rosson, 178 Cal. App. 3d 1094 (1986), and Marriage of Burgess, 13 Cal. 4th 25 (1996), for example, 10-and 13-year-old children met the “sufficient age and capacity to reason so as to form an intelligent preference” standard. In Stuart v. Stuart, 209 Cal. App. 2d 478 (1962), the court said it would listen to children as young as seven or eight. In Marriage of Slayton, 86 Cal. App. 4th 653 (2001), the court found it doubtful that a 5-year-old could realistically meet the statutory standard. In Marriage of Mehlmauer, 60 Cal. App. 3d 104 (1976), however, the court determined that a 14-year-old boy did not meet the standard and refused to shift custody from the mother despite the child's wishes. The bottom line is that custody is awarded according to the best interests of the child.

The California cases referenced above can be located at http://www.lexisnexis.com/clients/CACourts/ by doing a citation search. After checking the box next to “I have read and agree to these Terms and Conditions,” and clicking on “BEGIN SEARCHING OPINIONS,” click on “By Citation” under the word “Search” on the top left of the screen. Use the “Search by Citation Criteria” template to input your search. For example, in the Stuart v. Stuart case, 209 Cal. App. 2d 478, the first number, 209, represents the volume number of the Reporter the case appears in, so type that number into the “Enter Volume” box. Then, using the pull-down menu, select the abbreviation for the Reporter the case appears in, “Cal. App. 2d.” In the “Enter Page #” box enter the second number in the citation, 478, which is the page upon which the case begins. Finally, click on the “GO” button to retrieve your case.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - California Statutes of Limitations

2011-01-06T23:07:38Z

Q: About six years ago, I lent a friend $600 to help with her tuition and living expenses while she was enrolled in college. We had an informal, but signed, contract that she would pay the money back within one year. She had to stay in school longer than expected because of tough circumstances, and we agreed that she could take longer to pay the money back (but not in writing). I then moved to another state, and have just recently moved back to California. Since I’ve been back, I’ve asked for the repayment several times, but I keep getting excuses. I’m thinking of taking this to court, but a friend says that too much time has passed and that the statute of limitations has run out. Is this true? I thought a statute of limitations only applied to criminal issues.

-Ana

A: Statutes of limitations (also called limitations of actions) apply to both civil and criminal actions. Some people may be more aware of these statutes as the apply to criminal actions, since many popular TV crime dramas mention them in passing: maybe the police can’t charge the bad guy with a crime because the statute of limitation for Breaking and Entering has expired; or perhaps the bad guy can be charged because there is no statute of limitation for murder. Television is well on its way to making us all forensic and legal experts, it seems! The basics of this type of statute are outlined below, but questions on this issue can be complex and may require that you spend some time doing research.

Statutes of limitations are enacted by the state legislature and may contain exceptions, qualifications, or additions depending on the circumstances of your claim. A judge cannot extend the time period unless the statute itself provides such authority, but there are legal doctrines (i.e. case law) that may provide relief from an otherwise expired statute of limitation. Discovering and applying these doctrines requires a thorough understanding of the law and a good deal of research.

The purpose of these statutes is to prevent old or false claims from arising after all evidence has been lost or destroyed, or after the facts have become muddled with the passing years. It is also to encourage those who might have claims to begin an action early, while the evidence is “fresh” and potential witnesses are available.

One aspect that might complicate your research is determining which statute(s) of limitations will control your cause(s) of action (or, why you are suing). States establish different deadlines depending on what the cause of action involves, such as a contract, a personal injury, or real property. Knowing which “category” your lawsuit will fall into will require some research or a consultation with a licensed attorney. Below are some online resources that may be helpful, but for more in-depth information you may want to visit your local county law library.

For civil actions, statutes of limitations can be found in the California Code of Civil Procedure §§312-363, which can be found online at http://www.leginfo.ca.gov/calaw.html or in print at your local county law library. You can browse the sections by clicking the box by Code of Civil Procedure and then clicking search. For criminal actions in California, statutes of limitations are located in Penal Code §799 et seq.

Nolo Press, a publisher of self-help legal materials, provides a brief description of statutes of limitations on its website. Also, the website’s encyclopedia features a useful chart comparing the statutes of limitations for all fifty states.

A few Nolo Press books, including “Everybody's Guide to Small Claims Court in California” and “Win Your Lawsuit in California,"provide explanations of some the statutes applicable to civil actions in California. These books are usually available for purchase in large bookstores, directly from the publisher at www.nolo.com, or online at www.amazon.com. When purchasing any law book on Amazon, be certain that you are buying the most recent edition or update. You can also find these books at your local public library or county law library. To find the law library nearest you, go to www.publiclawlibrary.org.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Pet Licenses

2010-12-23T19:51:37Z

Q: We’re adopting a dog for our children for Christmas. A friend told me we'd need to get a pet license. Is this true? If so, who do we contact for that?

Bridget

A: Congratulations on the new addition to your family!

Sacramento County, and all cities within the County, require dogs and cats over 4 months of age to be vaccinated and licensed. Sacramento City also requires licensing of mini-pigs.

Each city processes its own licenses, so you will need to contact the Animal Services department for the city where you live. Links to each of those departments is listed below.

Citrus Heights (contract with the County to process animal licenses) - (read the code section here)
Elk Grove - (read the code section here)
Folsom - (read the code section here)
Galt (contract with the County to process animal licenses) (read the code section here)
Rancho Cordova - (read the code section here)
Sacramento - (read the code section here)
Unincorporated Sacramento County - (read the code section here)

Licensing fees vary between cities, and are significantly higher for unaltered animals. One-year licenses for a spayed or neutered dog will be $10-$15. One-year licenses for unaltered dogs range from $30-$150. Most cities offer one, two, or three year licenses, with discounts for the longer licenses. In order to obtain an animal license, you will need proof of rabies vaccination. If you wish to pay the reduced licensing fee for an altered animal, you will also need proof of spay or neuter.

Licensing your pet offers many benefits, especially if your pet gets lost. If your pet is wearing her license tag, animal control officers will attempt to bring her home, rather than taking her to the shelter. Should your pet end up at the shelter, though, the license will extend the time she is held at the shelter.

www.saclaw.org

Ask the County Law Librarian: Amending a Birth Certificate

2010-12-16T21:45:10Z

Q: I gave birth to a beautiful baby boy in September. We named him James, but from day one we called him Kimo, which is James in Hawaiian. We regret not naming him Kimo and I would like to amend his birth certificate. Is that possible?

Lelani

A: Congratulations on the new addition to your family!
Amendments to birth certificates are used to correct errors and cannot be used to change information on the certificate. Changing information on the certificate requires a court order.

Since both parents are in agreement the process is straight forward. All of the forms you need are available here: http://www.courtinfo.ca.gov/selfhelp/other/namechangechild2.htm

First you would complete the Petition for Change of Name including the Attachment to the Petition for one child. Both parents sign the Attachment. Next complete the Order to Show Cause and the Civil Case Cover Sheet. File all the forms with at least 2 copies of each in the court in the county where you live.

You must publish the Order to Show Cause in a newspaper of general circulation once per week for 4 weeks in a row. Bring the proof of publication and the Decree Changing Name form to your court date and the judge will sign it. An appearance may not be required. Here is information about the process from the Sacramento Superior court http://www.saccourt.ca.gov/forms/docs/cv-142.pdf

Once you get a certified copy of the Decree Changing Name you can change your child’s birth certificate, social security card and other legal documents. Visit www.cdph.ca.gov or call (916)445-2684 for information regarding amending the birth certificate.

Another resource is this 60 minute video which explains the process in detail: http://www.saclaw.org/videoDetails.aspx?vid=25

The Sacramento County Public Law Library also has a free Name Change workshop every Monday from 1:30 – 3:30 http://www.saclaw.org/pages/cshc-workshops.aspx

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

City to fine adults who provide alcohol to youths at parties

2010-11-24T05:46:46Z

Sacramento police will now have “another tool to address criminal behavior” as it relates to underage drinking, according to City Councilman Robbie Waters.

The City Council unanimously passed an ordinance Tuesday that will fine adults who host parties with underage drinking within the city anywhere from $250 to $25,000. They will also be charged with a misdemeanor.

The “social host liability ordinance” will hold people accountable for sanctioning underage drinking, said Derrick Lim, manager of Neighborhood Services/Special Events within the city’s Department of Parks and Recreation.

Lim said a civil penalty can also be administered for those in violation of the ordinance.

Similar ordinances have been successful in other areas, including unincorporated portions of Sacramento County and the city of Elk Grove, Lim said.

“The Sacramento Youth Commission fully supports these measures,” said Olivia Godby, the commission’s vice chair.

According to the staff report, the UC Davis regional trauma center showed an increase in the number of intoxicated youth being treated as well as an increase in the average blood alcohol level among those youths between 2004 and 2008.

The report also notes that 414 people were injured and 18 killed in Sacramento County between 2006 and 2007 by underage drivers who had been drinking.

Waters said the new ordinance will “punish the parents, if you will, and give law enforcement officers the chance to do something about these people who have parties for the under-21 youth where alcohol is served.”

Steve Wirtz of the Sacramento Youth and Alcohol Coalition – an affiliate of the UC Davis Trauma Prevention and Outreach Program – spoke at the meeting, saying his group is behind the ordinance.

Wirtz said the issue is a nonpartisan one, and that the goal is simply to protect the youth in the city.

“We’re very pleased to see this go forward,” he said.

One Christian Brothers High School senior who spoke at the meeting recalled the “Every 15 Minutes” drunken driving prevention program being at his school when he was a sophomore.

“What I learned from this is underage drinking is not the casual thing that other people think,” he said.

The report noted that 90 percent of 11th graders acknowledge that drinking is a problem, but 62 percent still do it.

Mayor Kevin Johnson then voiced his stance on the issue: “How can we say no to our youth? Holy moly.”

Brandon Darnell is a staff reporter for The Sacramento Press.

Ask the County Law Librarian - Red Light Citation

2010-11-04T15:15:13Z

Q: I received a citation in the mail for running a red light. My brother borrowed my truck and he was the driver pictured. What do I do?

Bill

A: Contact the agency that issued the citation. Do not send payment to the court because then the citation will be connected to your driving record. Once contacted the issuing agency will then contact the court with the corrected information. If you fail to contact the agency or do not appear on your assigned date, additional penalties will be added to your case and your driver’s license can be suspended.

Below is the contact information for local agencies:

California Highway Patrol, Red Light Camera Program
903 Enterprise Drive
Sacramento, CA 95825 916-876-6643

With the citation number, license plate number, and the city code SCMTCA, you can view the violation video online - external link.

City of Elk Grove, Red Light Camera Program
8400 Laguna Palms Way
Elk Grove, CA 95758-8045 916-478-8161
With the citation number, license plate number, and the city code ELKGCA, you can view the violation video online - external link.

City of Citrus Heights, Red Light Camera Program
6315 Fountain Square Drive
Citrus Heights, CA 95621 916-727-5884
With the citation number, license plate number, and the city code CSHTCA, you can view the violation video online - external link.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Divorce Costs

2010-09-30T22:25:48Z

Q: I've heard that getting a divorce is more expensive than getting married. Is that true? In total, how much does a divorce really cost?
- Dave

A: Well, I guess that depends on how extravagant your wedding was. It’s usually cheaper to stay married than to get a divorce, though. For most couples, divorce is an expensive process. It’s impossible to put an exact price on a divorce, because it is different in each situation. An extended contested divorce typically ends up costing more than one that is settled easily between the parties. In general, the more issues to be dealt with during the divorce, the more expensive it may be. Additionally, the more assets you have, the more you have to lose. Here’s a brief overview of some of the types of costs you may to incur during a divorce.

Hiring an attorney
If you decide to hire an attorney to handle your divorce, expect to pay an initial retainer of at least $750 - $5000. Think of the retainer as a down payment – as the attorney works on your case, he will deduct his hourly rates from that amount. For divorce cases, hourly rates are usually around $175-$350. In most cases, you will run through your retainer before the case is over, and will need to pay additional fees to your attorney. According to “How to Do Your Own Divorce in California in 2010,” the average spent on legal fees for a divorce is well over $18,000 per spouse. For couples with more assets, or more issues to sort out during the divorce, attorney’s fees can run into tens or hundreds of thousands of dollars per spouse! If your divorce will be complex or highly contested, you will need to factor in additional litigation-related expenses, such as custody evaluators, financial expert witnesses, and mediators.

Don’t base your decision about hiring an attorney solely on the cost, though. There are benefits and drawbacks to hiring an attorney. Nolo Press has a very good article to help you decide whether hiring an attorney is right for you.

If you decide not to hire an attorney, the Law Library has a lot of materials that may help you handle your own case. A guide listing our divorce-related resources, as well as referrals to other sources of assistance is available on the Law Library’s website. Keep in mind that even if you decide not to hire an attorney, you may still significant costs during a divorce.

Filing fees
To file the initial papers to start a divorce, you will pay a filing fee of $355. This is not a penalty for the party initiating the divorce - the other party will also pay $355 to file their response. Throughout the case, you may have to file additional paperwork. Some of these filings may be free, others may have filing fees of up to $40. If you have very low income, or are receiving public assistance, you may qualify for a fee waiver. More information about fee waivers is available from the Law Library’s website.

Division of property
During a divorce in California, spouses will have to divide the community estate, often called “community property.” Community property is any property or debt that is acquired during the marriage, unless it is a gift or inheritance, or was owned prior to marriage. Sometimes it is difficult to determine what is considered community property and what is the separate property of each spouse. This article from Nolo Press provides a good explanation of the differences.

In addition to assets you’d commonly think of as community property, such as income, real estate, vehicles, and household goods, community property can also include accumulated vacation pay, pension funds, employee stock options, tax refunds, and intellectual property created during the marriage. Each spouse is entitled to an equal share of community property during a divorce. This means that when you divorce, you may lose up to half of everything you own. Depending on the size of the community estate, this can be very expensive!

Support
If you have children together, child support may become an ongoing divorce-related cost. California has a mandatory statewide guideline for child support based on the actual income of each parent and the amount of time each parent has physical custody of the children. To help parents estimate the amount of child support the judge will order in their case, the State of California has developed an online child support calculator, which is available at https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator.

You also may be required to provide medical insurance for the children, and contribute toward childcare expenses, unreimbursed or uninsured health care expenses, educational or special needs of a child, or travel expenses for visitation purposes.

In addition to child support, the court may also order spousal support, commonly called “alimony.” Spousal support is not mandatory in California, so there is no statewide guideline for spousal support like there is for child support. Instead, the court is required to consider a list of factors in making a spousal support determination. A good explanation of these factors is available online at http://courtinfo.ca.gov/selfhelp/family/support/documents/spousalsup.pdf. After evaluating the parties’ circumstances, it is entirely up to the court whether to order spousal support, and to determine the amount and duration of a spousal support order.

The cost of your divorce is very difficult to estimate, because there are so many different factors involved. In addition to those I’ve already mentioned, you may incur other costs, such as moving expenses, the cost of maintaining two separate households, even tax consequences related to support and property division.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - Proof of Auto Insurance

2010-09-23T17:44:38Z

Q: I got pulled over and thought I had a valid insurance card at the time. It turns out my policy had actually been canceled. What can happen and what are the laws regarding driving without insurance?

Betty

A: In California, you must have car insurance that covers you when you're driving any car. If a police officer stops you, you must show proof of insurance. Failing to show proof of financial responsibility, meaning insurance coverage, is a violation of California Vehicle Code Section 16029. http://www.dmv.ca.gov/pubs/vctop/d07/vc16029.htm. Violating this code could result in fines up to $500 plus penalties, impoundment of the vehicle and suspension of the driver's license. If the vehicle is impounded the owner will have to pay for all storage and tow charges as well.

If you have insurance but don't have proof to show the officer, you'll be charged with an infraction for driving without proof of insurance and must provide proof of your insurance to the court and pay a fee.

If you don't have insurance, you must buy it. Then, provide your proof of the insurance to the court and pay a fine. The consequences can be far more serious if you are involved in an accident and do not have insurance. You may have to comply with the financial responsibility laws (SR22, SR22s, SR16), including having to pay for any injuries or damages from the accident out of your own pocket.

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org

Ask the County Law Librarian - How to Find a Lawyer

2010-09-01T16:30:15Z

Q: How can I find a good lawyer? I am willing to pay. Can you recommend someone?

Thank you, Katherine

A: Although I can't recommend a lawyer, I can provide a strategy to locating one.

Locating a lawyer who is willing to handle your case can be challenging. There are a number of avenues you can pursue to locate the right attorney.

Personal Referrals
Talk to your family or friends for a referral. Ask them who their lawyers were and what they think of them.

Online Directories
Nolo's Lawyer Directory http://lawyers.nolo.com/
The publishers of Nolo's Lawyer Directory verify that all listed attorneys are in good standing with the state bar, and that they have not recently been disciplined. All attorneys provide detailed information about their educational history, legal specialties, fees, and personal philosophy.

State Bar of California http://www.calbar.ca.gov/
Posts member record information, including information regarding attorney discipline. Users can search for a "certified specialist" in these specific practice areas: appellate, criminal law, estate planning, trust and probate, family law, immigration and nationality, personal and small business bankruptcy, taxation and worker's compensation. Click on "Public Services" then on "finding an attorney for legal advice" to read the State Bar's guide on how to find an attorney.

Martindale-Hubbell Directory http://www.martindalehubbell.com
Best known for the national directory of attorneys, this site contains a searchable database by attorney's name, location and/or area(s) of practice.

Lawyer Referral Service
Sacramento County Bar Association Attorney Referral Service http://www.sacbarlawyer.org
For $50 you can receive a 30 minute consultation. The Lawyer Referral Service is a nonprofit service sponsored by the Sacramento County Bar Association. You can request a referral either by telephone or email.

Advertisements
You also could check the Yellow Pages, newspaper advertisements or the Internet in your search for an attorney. Not all lawyers choose to advertise in the Yellow Pages. Lawyers may use ads to list their fields of law.

Print Resources
You can always do some research at the Sacramento County Public Law Library http://www.saclaw.org. There are numerous print directories and friendly reference law librarians available assist you.

Ask the County Law Librarian

2010-08-26T20:08:40Z

Welcome to the Sacramento County Public Law Library’s new column, “Ask the County Law Librarian.”

The Sacramento County Public Law Library has been providing FREE public access to legal information since 1891; however, many residents don’t even know about us. We hope this column will remedy that, educating and informing readers about the legal system and legal services and resources available for free or for a very low cost.

How it works: You come up with a legal question, and I respond, providing references to books, websites, or local agencies that can help you answer your legal question. I cannot provide legal advice – that is, I cannot tell you what you should do, but I can provide legal information, so that you will know what your options are.

Another thing I cannot do is interpret the law. I can, however, direct you to the text of the law itself, and to other sources – in the Law Library and on the Internet – that have analyzed and interpreted the law.

So send your questions to sacpress@saclaw.org! I will feature one question per week each Thursday here at The Sacramento Press. Questions not featured will be answered privately within two weeks. I look forward hearing from you!

Coral Henning, Director

Connect with us:

Twitter: @saclawlibrarian or @coralh

Facebook: www.facebook.com/saclawlib

www.saclaw.org

Ask Jonathan - Is there a formula for settling my case

2010-07-19T14:04:44Z

Q: I was hurt in a car accident. I keep hearing my case is worth three times my medical bills. True?

A: This is one of the questions I get a lot and I have heard it since I was an insurance adjuster. Everyone seems to think there is a formula to figuring out the value of a personal injury case. And, unfortunately, the Internet is making this myth more popular.

The simple answer is that there is no formula. If there were, insurance companies wouldn’t pay adjusters to handle claims. People wouldn't hire attorneys to represent them. We wouldn't have juries awarding money.

A number of factors affect the value of a personal injury claim. The first factor is who is at fault and how much is the other party at fault. Some accidents are “clear liability” cases in which one person is clearly at fault. However, there are many cases in which the injured person is 5 percent, 10 percent or even 20 percent at fault. In California, your damages are reduced by your fault. So, if you are 10 percent at fault, your case is worth 10 percent less than it would have been had you not been at fault.

The next factor is your personal situation. For instance, if I break a foot in a car accident, my case will have some added value added because I will miss playing my weekly soccer game, coaching soccer and my martial arts. However, if a person who does not participate in those activities breaks his foot, there is no added value.

Similarly, a stay-at-home mom who breaks her arm and cannot cook or clean is going to have some added value, not just for the cost of hiring help to cook and clean, but to compensate her loss in not being able to do those things around the house. If I broke my arm, it would affect me, but I still would be able to play soccer and coach, so the value to me would be less. Everyone's situation differs and so does the value of each case.

Each case needs to be looked at individually. And it should not be a surprise that three attorneys looking at a case will give you three different values. (One note: If an attorney tells you the value of your case BEFORE you have completed treatment, you should be cautious. We never know what issues may come up that could affect your case.)

Finally, the amount of insurance the other side has will affect the value of your case. If you get hit by someone with the state’s minimum limits, $15,000 per person, and you have no underinsured motorist coverage, your case will be limited to that amount. However, if you are involved in a collision with someone with $1 million or higher limits, you should be able to recover the full value of your case.

Next week I will go into more detail on insurance-coverage limits and tell you how to be sure you are protected even if you are hit by someone with minimum limits.

The Law & Social Media: what you missed at SMCSac's April meeting

2010-04-28T18:30:13Z

The Sacramento Social Media Club (SMCSac) held their April meeting at The Urban Hive featuring a trio of experts discussing social media and the law. Formally titled “The Web of Justice,” some forty plus lawyers, law students and those just interested in the topic gathered to hear individual presentations, followed by a question and answer period. Jeff Marmins, Executive Director of the SMCSac, was the MC for the evening, welcoming the crowd, before introducing the three speakers.

Jonathan G. Steinis a litigator whose law practice handles a variety of cases from personal injury to debt-collection. It is as a blogger, however, that Mr. Stein comes by his social media expertise. He contributes commentary and/blogs for California Debt Blog, California Personal Injury and Insurance Blog, California State Bar and LawGuru.com.

From these blogs come about 95% of his work, Mr. Stein estimates, and he uses them and other social media for both branding and marketing. He explained to the audience how he has carefully crafted and maintained his image so as to appeal to his target audience. In addition to blogging, Mr. Stein is also an active participant on Twitter, Facebook, LinkedIn and Avvo, a social media organization of lawyers.

In addition to branding, Mr. Stein uses social media for marketing. “It is,” he says, “a great way to find clients.” And, he adds, an excellent client research tool.

Kate Fitz practiced law for several years before becoming a reference librarian at the Sacramento Public Law Library. She is an active social media user on Facebook, Twitter, LinkedIn and Second Life. So well-versed in social media is Ms. Fitz that she has, since 2008, taught a course called “Web 2.0 for Lawyers.” It was from that course that she pulled her talk for SMCSac on Social Media for Research and Investigation. She introduced the audience to several techniques for using Twitter as a search tool as well as Spokeo.com (en.wikipedia.org/wiki/Spokeo), a social media aggregator that draws information from a number of different sources.

According to Ms. Fitz, anywhere that people gather on-line--YouTube, Flickr, Meetup.com--is a ripe area for doing legal research. More and more, she said, “social media is being used for investigation and discovery in law suits.” However, she warned that the specific requirements that enable a piece of evidence to be admissible must be maintained.

Sharon Lovell, the third speaker of the evening, is a law student who can be found on Twitter, Facebook and her blog, NoReins Girl. Her topic was “Managing Your OnLine Identity,” and she spoke to those who are at the beginning of their legal careers or their social media experience. “The law is a profession with high ethical standards,” she said. “Your online image and social networking usage should conform to those expectations.”

To that end, Ms. Lovell reminded the audience that they must presume anything put online will exist somewhere online forever. Things can be taken out of context and questionable photos or disrespectful comments can haunt a person for a very long time. Coordinating one’s intended image with one’s online persona is paramount in a field such as “the law where presentation counts.”

Finally, Mr. Stein returned to the podium to discuss liability issues. As an active member of a number of organizations including Consumer Attorneys of California, Association Trial Lawyers of America and California Young Lawyers Association, he underscores the need for transparency when posting. For example, he uses a researcher to ghost write some of his blog posts and he attributes them to her. In addition, when he has a guest post, it is clearly marked as such. “You are responsible for anything you post,” he reminded the audience, and that is something he also tells his clients.

Following the question and answer period--and the raffle (always a SMCSac high point!)--the speakers and the audience had conversation and crudites, fresh fruit and cheesecake while talking informally. The evening ended with a heartfelt thank you to the sponsors, The Sacramento Press and The Urban Hive, and a reminder that next month our topic will be Social Media and Employment.

“Web of Justice”--not the latest thriller at the Cineplex.

2010-04-16T18:01:15Z

It’s the title of the Sacramento Social Media Club’s April presentation. Half the title, actually: Web of Justice: Social Media & Law.

Almost everyday brings a fresh news item or two about the nexus between the law and social media. Privacy issues, social sharing at the speed of fiber optics and server farms in the “clouds” are changing the legal landscape. How does that affect you, the concerned citizen? How does that affect us, the informed public?

These and other questions will be the focus of a panel discussion featuring three active users of social media in their legal work.

Jonathan G. Stein is the owner of a law practice that handles all manner of litigation, from personal injury to debt-collection defense. He blogs at a number of legal websites, including LawGuru.com.
Kate Fitz practiced law before becoming a public services librarian at the Sacramento Law Library. She teaches “Web 2.0 for Lawyers” and can be found on Twitter, Facebook, and LinkedIn.
Sharon Lovell is a lawstudent at Lincoln Law School who has been active in social media since 2008. A graphic designer and photographer by trade, she blogs at NoReinsGirl.

The Urban Hive, at 1931 H Street in Midtown, is the venue for this monthly event of the Sacramento Social Media Club. It begins at 6:30 pm for check-in and socializing and will end at 8:30 pm. There is no cost to participate, but we do ask that you register in advance at Eventbrite. We need an accurate head count for the lights appetizers and drinks that will be provided.

The Social Media Club brings together journalists, publishers, communications professional, artists, amateur media creators, citizen journalists, teachers, students, tool makers, and other interested collaborator. The Sacramento chapter was founded in March of 2009 by local users of social media. You can find us on Facebook or LinkedIn or follow us on Twitter @SMCSac. Jane Gassner is a member of the board of the Sacramento chapter.

Hina's Tea in legal battle

2010-04-02T02:42:05Z

Hina's Tea announced Monday that it will close soon. Owner Hina Soni, who has been in a legal dispute with her landlord, Gary Orr, since mid-2007, learned last week that Orr was entitled to repossess the property until litigation is complete.

Soni and Orr declined to comment, saying to contact their lawyers.

There are more than 100 court documents attached to the case, number 07AS02841 on the Sacramento County Superior Court's website, some reaching 330 pages.

According to the most recent court order, there are several key disputes unresolved. "There is a triable issue of fact as to the amount of back rent, if any, owed," according to the document. "There also is a triable issue of fact as to when, if ever, the lease commenced."

It also found that Hina's Tea is an unlawful detainer of its property, adding that Orr "is entitled to possession of the premises while the parties litigate the issue of damages."

According to older documents, the disputes of rent owed and whether a lease exists arose in 2006, when Soni and Orr initially met to discuss the property rental. Orr was said to have offered to remodel the property for a certain price and to ensure it complied with building codes. The lease was said to be contingent on these renovations, which didn't go according to plan.

"The allegation (is) that in Orr's role as architect, designer, agent and construction manager, the work performed was substandard, over budget and in need of costly repairs," said another document.

Orr's law-firm don't see it that way.

"Hina's commenced this (legal) action in bad faith with the intent to cease payment to my client," said Dan McGee of Ellis, Coleman, Porier, Lavoie & Steinheimer, which is representing Orr. "The bottom line is we have a business who has been operating from the premises rent free."

Calls to Radoslovich Law Corp., which is representing Soni, were not returned.

"In response to Mr. Orr’s attorney’s comments that Hina’s Tea refused to pay rent without justification, Hina’s Tea does not refuse to pay rent," said a written statement on the business's behalf. "Hina’s Tea believes Mr. Orr was paid all that he is due and that he failed to meet numerous obligations ... These issues, among others, remain subject to ongoing litigation with Mr. Orr and it will be left to the Court to resolve them."

McGee said a trial is set for Sept. 29 to resolve remaining issues.

Council to decide on new version of permit program

2009-12-12T00:09:08Z

The City Council will discuss Tuesday a new version of a permitting program that became part of the recent debate over the Nestlé’s company’s move to Sacramento. The city shuttered its Facilities Permit Program Oct. 27 to investigate whether the program breaks laws.

City Attorney Eileen Teichert declared recently that the FPP was being used illegally because the city was not directing builders to obtain formal building permits before starting construction work, according to David Kwong, the city’s acting planning division director.

The previous version of the FPP offered businesses -- those that worked with the city on an ongoing basis -- a way to receive quick approval for tenant improvements or remodeling of commercial and industrial buildings, Kwong said last month.

Now, Kwong is presenting the remodeled FPP. One of the main revisions is a rule for formal building permits.

“The original program allowed individuals to start work with an oral or written ‘Authorization to Start Work,’” according to a report that Kwong is presenting to the City Council Tuesday. “The revised program requires that a building permit is issued before work is started as required by city code.”

Kwong plans to start the program again Dec. 16. It will be renamed the Facilitated Permit Program. An in-depth guide to the new program will be drafted by the Community Development Department in January, according to Kwong’s report.

Read the full report on changes to the program under Item 30 at the city's website.

The link between the FPP and Nestlé

Nestlé is setting up a bottling plant in Sacramento with plans to sell tens of millions of gallons of the city’s water. The city used the FPP to approve the bottling plant.

Nestlé’s plans drew protests from a citizen’s group called Save Our Water Sacramento, which opposed the city’s approval of the plant without a public hearing or an environmental impact report.

At the same time, a conflict surfaced over whether a building permit should have been used with Nestlé’s project. City Attorney Eileen Teichert said in October that Nestlé did not break any laws as it worked to build its bottling plant. But her office declared that the FPP involved illegal procedures, Kwong said in November.

Teichert said the city acted illegally because it allowed project construction even though Nestlé and its contractors did not have a building permit.

While Nestlé and its contractors received verbal approval from the city to start building the plant, that type of approval does not meet legal requirements, according to Teichert’s analysis.

Nestlé has said it followed city laws.

Photo by Sacramento Press reporter Suzanne Hurt. Suzanne Hurt contributed to this report. Kathleen Haley is a staff reporter for The Sacramento Press.

Support for the legalization of cannabis grows

2009-11-01T06:04:02Z

Standing outside of a Sacramento medical cannabis dispensary, you might detect something in the air. No, it's not secondhand THC vapor — public medicating is prohibited in the county. What you sense is a shift in perspective. Public pressure is building for the legalization and regulation of one of the oldest cash crops in America: the plants of genus Cannabis.

The US federal government has held since 1970 that cannabis is a danger to public health and safety and listed the annual flowering herb under US code as having "high potential for abuse" and "no accepted medical potential."

"A lot of people are thinking that federal drug laws are arbitrary and now we're starting to see the translation of public sentiment into political will,” Assemblyman Tom Ammiano (D - San Francisco) told The Sacramento Press.

In 1996, California voters passed a ballot initiative, Proposition 215, which allowed the possession, cultivation and use of cannabis for patients with a doctor's recommendation. Since then, voter majorities in Alaska, Colorado, the District of Columbia, Maine, Montana, Nevada, Oregon, and Washington have passed ballot initiatives to allow seriously ill Americans to use cannabis.

In 2003, after numerous rewrites, the California Legislature recognized and further protected medical marijuana uses with SB 420. State legislatures of Hawaii, Vermont, Rhode Island, and New Mexico have passed bills that do mostly the same. SB 420 is unlike other bills in that it also allows for the formation of patient collectives — not-for-profit businesses that provide medical cannabis to qualified patients.

American Association for Medical Cannabis state director Ryan Landers had a hand in the shaping of 420. "Originally, 420 started out as 187, a bill that was more conservative and, I felt, would help less people. It was sent to the suspense file and I had this feeling it would be coming back, so I helped to rewrite it for greater patient coverage."

Before 420, several bills entered debate that would contravene Proposition 215. In 2000, two of these bills emerged. Former state Senator Maurice Johannessen authored SB 2089, a bill that would have limited the recommendation of cannabis and restricted patients to two indoor plants. It failed in the Senate Committee on Health and Human Services, its first committee.

SB 848, authored by former state Senator John Vasconcellos, would have placed harsher regulations on medicinal cannabis and was refused passage in the Assembly.

"I testified to kill those bills to ensure that there would be no misunderstanding," Landers said. "I want to provide freedom for the most patients possible."

According to a 2004 survey by the National Organization for the Reform of Marijuana Laws (NORML), over 75,000 Californians have become cannabis patients under the provisions of the Compassionate Use Act (215) and the Medical Marijuana Program (420).

Physicians and medical professionals have been a vital source of support for the medical cannabis movement. Dr. Frank Lucido, a 30-year private practice doctor and respected medical cannabis spokesman, estimates that 1,500 doctors in California recommend cannabis to chronically ill patients. He said that significant stigma still surrounds the drug, however.

"There are two reasons doctors are hesitant to prescribe cannabis," he said. “First, a lot of doctors don't know the value of the drug because they simply weren't taught that in medical school. Second, many are afraid of the California Medical Board and federal law enforcement, even though they're protected by Supreme Court rulings."

Lucido believes that medical cannabis, despite its enduring taboo in the medical sector, has wide applicability.

"Every doctor knows they have about 20 slam-dunk patients that could benefit greatly from medical cannabis."

Full legalization is a completely different animal and Ammiano knows it. The state representative introduced AB 390 in March to a blaze of attention. Since then, the bill has failed to move through the legislature. However, Ammiano planned for AB 390 to be a two-year bill.

"The debate we're having is sustainable, it has legs," Ammiano said. "And it's way bigger than just me."

AB 390 is a bill of a rare breed: It is both a full decriminalization of cannabis for adults over the age of 21, and a plan to enforce systems of taxation to tap into the drug's booming commercial value.

This would work twofold by would generating tax receipts and reducing state expenses. The bill planned to institute a tax of $50 per ounce of dried marijuana sold by official retailers, who would pay no more than $2,500 for an annual sales license and $1,000 for a renewal. Further, the bill would free up state resources in law enforcement, no longer regarding cannabis users as a criminal priority.

"It's California's biggest cash crop and right now we're hemorrhaging money to prosecute and imprison minor drug offenders,” Ammiano said. “With the current budget crisis, this is looking like the perfect storm."

Cannabis activists largely support AB 390, though the seasoned Landers objects to some points.

"The bill started out ahead of itself," he said. "The profits and tax numbers it projects are based on the illegal price of cannabis. Once legalization gets through, supply will increase and prices will have to settle. A $50 tax on an ounce that costs $25, which is the final pre-tax price most people hope for, would be ridiculous."

The age limit in the bill -- that Ammiano modeled after alcohol regulations -- is also contentious.

"The age limit of 21 is entirely a concession," Landers said. "Putting cannabis into the same category of regulation as alcohol opens up a host of problems. Eighteen-year-olds could take the state to court and force them to explain why cannabis is more dangerous than alcohol, even though marijuana alone has never killed a soul."

Ammiano's bill has the support of San Francisco Sheriff Mike Hennessey, although law enforcement has historically been extremely critical of legalization. "I think marijuana should be decriminalized," Hennessey told SFWeekly in February. "I'd like to give more thought to heroin and methamphetamines and that kind of stuff."

The California Police Chiefs Association disagrees, having issued a 2009 White Paper that rebuked even the medicinal use of cannabis. The white paper characterizes medical cannabis dispensaries as "multi-million dollar enterprises" which are "often used as a front for organized crime" where "many violent crimes have been committed," fostering "generally unhealthy conditions."

But actual instances of crime in and around dispensaries is fairly rare, according to Sacramento Police Department spokesman Norm Leong. "Service calls are generally uncommon, he said. “And when we do get calls, it's the dispensary owners that call it in."

Ammiano sees a gradual change of mind regarding cannabis in law enforcement.

"There's certainly a mindset there, but there are cracks in that as well. It's not as monolithic as it used to be."

He also cited the late conservative economist Milton Friedman, who supported cannabis legalization and taxation toward the end of his life.

Outside of Ammiano’s efforts, activist groups are taking other routes. Two voter initiatives are circulating through California, both of which propose to legalize, regulate and tax cannabis.

The Regulate, Control and Tax Cannabis Act of 2010, introduced by Oaksterdam University, would enact largely the same legalization measures as Ammiano's bill. This would allow the pro-cannabis supporters to get legalization directly onto the ballot and circumvent any lack of political support.

"The cannabis regulating system we currently have in place has failed," said Salwa Ibrahim, spokesperson for the initiative. "We want to empower the state to benefit from something that's already existing."

Ibrahim cited other benefits that are frequently discussed in the cannabis debate. "We don't think consumption or crime would increase at all. Similar to prohibition in the '20s, the black markets [that] illegality has created would disappear."

Regardless of the outcome of any of these movements, it seems clear that the public dialogue on legal cannabis has taken a step forward.

"390 has done an amazing thing, and that's this: It ignited the conversation," Landers said.

With or without the blessing of the law, humans worldwide are planting the cannabis seed. The renewed question on everyone's mind is what to do with the harvest.

This story was written by former Sacramento Press intern Cheyenne Cary.

Medical marijuana activist Ryan Landers speaks

2009-11-01T06:01:56Z

Medical cannabis in California wouldn't be what it is today if it wasn't for Ryan Landers. The Sacramento activist helped to develop the laws, policies and realities of medical marijuana in a career of activism that spans more than a decade. He was there to help roll Proposition 215 into motion in 1996 and had a significant hand in crafting SB 420 in 2003.

"I live the cause," he said. "When I'm not out testifying or counseling or negotiating for the cause, I'm just home and sick."

He's a 15-year survivor of HIV/AIDS, a personal fact that he doesn't usually publicize partly due to prior experience.

Landers, now 37, became a member of Californians for Compassionate Use in 1995. CCU is the group behind the successful Prop. 215 ballot initiative that won state medical legalization.

"When we got started, the public perception was really different," Landers said. "As we were collecting signatures, people were shocked. 'What do you mean you want to change drug laws?'"

As a volunteer, Landers ran information tables and collected signatures at California colleges, the Capitol, bookstores and food co-ops. “The press was giving us coverage every night, and I started appearing on TV,” Landers said.

Prop. 215 landed on the 1996 ballot and swept through into law on a 55.6% margin.

Landers is no stranger to news cameras and microphones. His media skills made public figures of his friends Steve Connell and Jacqueline Mahone, who testified beside him for years. He has also worked extensively with activists like East Bay resident Dr. Frank Lucido and Sacramento attorney Joseph Farina, to whom Landers says he probably owes his life.

Getting a tattoo at 16 changed his life forever. He was diagnosed HIV positive in 1995.

He started medicating to help deal with the nausea and pain that the HIV virus and medication brought with it. Cannabis helps relieve his neuropathic pain and allows him to eat and keep food down once a day, even though he hasn't been hungry in 15 years.

Landers' activism reads like a history of medical pot. He testified in the California State Legislature against SB 535 (1997), SB 847 (1999), SB 848 (1999), and SB 187 (2001). He helped to author a revised version of SB 187, which went on to become the successful SB 420.

In appearance, Landers is not what you'd expect when you think of a cannabis activist. He keeps his hair cropped and short, reminiscent of his service with the Navy during the first Gulf War, and stays snappily dressed in three-piece suits on a normal day of business. He looks nothing like Tommy Chong.

The medical cannabis cause wound up making Landers a parent. As he was working with teens at risk of expulsion for cannabis use, he took two kids under his wing and eventually officially adopted them. David, 23, and Nate, 24, both graduated with their senior classes. More recently, they made him a grandfather at 37.

"In the end, that's why I could never walk away, when I thought about how many lives in the community could stand to benefit from this," Landers said. "If what I was doing was dangerous, or if it were wrong, I wouldn't be doing it."

(This story was written by former Sacramento Press intern Cheyenne Cary.)

Civil Self Help Center Opens

2009-08-13T18:22:12Z

The Sacramento County Public Law Library (SCPLL) is the new home to the Civil Self Help Center which was formerly located in the Sacramento Superior Court. The Civil Self Help Center provides self represented litigant’s FREE legal advice and information on a variety of civil issues including but not limited to responding to a breach of contract complaint, name change, discovery requests, and much more.

The center came about through a partnership with SCPLL, the Sacramento Superior Court and the Voluntary Legal Services Program of the Sacramento County Bar Association. SCPLL contracts with VLSP to staff the CSHC. VLSP staff consists of a staff attorney and two paralegals. SCPLL staff work with VLSP each morning to “triage” the incoming customers. Staff assist in directing customers to CSHC workshops or in making appointments for one-on-one assistance.

The Sacramento Superior Court due to the state’s economic crisis could no longer fund this important program out of their general fund. SCPLL spoke with the court’s executive office about transitioning the program to SCPLL and a partnership developed whereby the court provided the furnishings and initial office equipment for SCPLL to get the center off the ground. In addition the Superior Court also is providing some grant monies to defray some of the staffing costs. This worked out to be a win-win for all concerned: the program continues to provide much needed services to the public, SCPLL expands services and increases visibility and value in the community and the Superior Court continues to support improved access to justice!

Visit http://www.saclaw.org/pages/civil-self-help-center.aspx for more information about Civil Self Help Center!

When pot and paper don't mix

2009-08-05T17:08:22Z

Cloned cannabis plants at Canna Care

Munching on a herbal brownie at El Camino Wellness Center, AAMC state director Ryan Landers explained how tricky and self-conflicting medicinal cannabis laws are.

"In Sacramento County, publicly smoking medicinal cannabis is considered ten 10 times worse than just smoking weed," he said.

Landers has been a medicinal cannabis activist for over 15 years and has worked extensively in drafting legislation and law enforcement plans for the new dimension of legal medicine. He works with patients and patients' rights groups, lobbies and national advocacy groups. If weed was legal expertise, he'd be "the guy on the corner."

Regarding the legal gap between smoking weed or medicinal cannabis, he says, "If they get caught, I tell my patients to just say they were doing it for the hell of it."

Medicinal cannabis laws are confoundingly thorny, unlike the plant in question. A long list of can-do and can't-do legislation adds up to conflict between levels of government and continuing confusion over raids, trials and incarcerations nationwide. It takes real education to sort these loopholes out, so what follows is a primer on the different and often conflicting ways that federal, state, county and city laws regard medicinal cannabis.

Sacramento city's legal haze

Sacramento city government doesn't really have anything to say on the case of medicinal cannabis. The 45-day moratorium is the first time that the existence of cannabis dispensaries has ever been addressed by the city, and progress toward developing zoning code, tax plans and other regulations is going to take a while. At present, the city refers to a copy of the county's policy on medicinal cannabis.

Other California cities have adopted new ordinances pertaining to dispensaries. In Berkeley, dispensaries can't open in certain zoning areas or within 300 feet of a school. In Santa Barbara, dispensaries must apply for a city permit to operate, then pay a continuous fee to stay legit. In Davis, city government banned dispensaries entirely. Last month, Oakland became the first city in the country to introduce a specific tax on medicinal cannabis, levying an $18 tax for every $1,000 of gross sales.

Sacramento County's duplicative statutes

Sacramento County has a few provisions for medicinal cannabis but leaves most of the lawmaking to the state. The Board of Supervisors decided to comply with California's medicinal cannabis plan in December 2008 and instituted a program to provide THC patients with the state's Medical Marijuana ID card.

County code contains one ordinance in addition to state law: an increase in penalty for publicly smoking medicinal cannabis. This was a provision included with the adoption of state law. Smoking cannabis for non-medical purposes ( ie. "getting high") only nets you a possession charge and a $100 fine, but medicinal cannabis is punished much more harshly. If you're smoking your legal medicinal joint strolling through the city, you can get busted for a $1,000 fine and risk six months in jail. This is the discrepancy Landers highlighted earlier.

Literature display at Northstar Healing Collective

California state law: wellspring of legality

State law is the source for all real medicinal cannabis provisions in California. As addressed in previous articles in The Sacramento Press, legalization was brought about by two separate laws: Proposition 215 and State Bill 420.

Prop 215 was added to voter ballots in the 1996 general election and was passed by a 55.6 percent majority. The ballot measure added language to the California Health and Safety Code under the title of the Compassionate Use Act. Language states that criminal law no longer applies to "seriously ill Californians" and their "primary caregivers" for the possession and cultivation of cannabis for medicinal purposes, and that no physician would be subject to punishment for its recommendation.

The CUA also lists ailments that are considered treatable with cannabis such as "cancer, anorexia, AIDS, [and] chronic pain," but the list is by no means binding or complete. It is key to note that medicinal cannabis is not a prescription for a specific illness, but it is a recommendation that can be applied to individuals on a case-by-case basis and does not require a specific condition to even be mentioned, according to Americans for Safe Access.

State Bill 420 is a separate law that did not amend Prop 215. Altering 215 was deemed to be unconstitutional, as doing so would override the intentions of voters. Instead, 420 recognized medicinal cannabis in the state legislature and introduced new provisions for dispensaries and patient ID cards. This was intended to better allow the enforcement of patient protections and allow all qualified patients to have the cannabis option open.

In the language of the bill, patients and caregivers who "collectively or cooperatively" cultivate cannabis for medical purposes cannot be punished on those grounds alone. This also allows dispensaries to exist, but only as not-for-profit enterprises. This is distinct from non-profit in an important way: Non-profit is a federal listing. Dispensaries, of course, aren't interested in asking the Feds for permission.

Medicinal cannabis dispensaries are almost exclusively a California phenomenon. Several other states have a handful of cooperatives, but the vast majority are here in the golden state. This means that federal policy toward dispensaries and federal court cases deal entirely with California.

Under 420, qualified patients can also apply for a medicinal cannabis ID card under the Medical Marijuana Plan. (On the law books, the unscientific term "marijuana" is always used.) By presenting documentation and paying a fee for the Department of Health Services program, patients can receive an ID card that confirms their eligibility for one year. This program is primarily for convenience, but it has its remaining issues.

"Often times, just an ID card isn't enough," Landers said. "Police are the only ones to usually check ID. I carry my card, my application and my doctor's recommendation to stay safe. I don't even reduce them; I leave them as full-size papers."

SB 420 was passed by state legislature in 2003, but had a long history before it hit the law books. It was originally introduced in 2001 as SB 187 and passed both the Assembly and the Senate, but was placed in the suspense file — basically bill purgatory — and not sent to the governor. While in progress, the bill underwent significant rewriting until its language was identical to the later SB 420. The bill's authors and advocates decided to wait until the time was right for the governor to sign it (and the hemp-culture favorite number "420" was available.) Then-governor Gray Davis was lukewarm on the issue in 2001, but after his recall and replacement with Schwarzenegger he was more amenable to the idea. The 420 legislation was one of the last bills Davis signed on his way out the door.

Federal agents raid a San Francisco dispensary.

Federal law: The war on a plant

United States federal government lists cannabis as a Schedule 1 substance under the Controlled Substances Act. This means that cannabis is illegal and given the highest priority for control by the Drug Enforcement Agency under the Department of Justice. The CSA was drafted by the Nixon administration and passed by Congress in 1970 as part of an expansive drug enforcement package, the Comprehensive Drug Abuse Prevention and Control Act.

Since 1970, federal lawmakers have held that cannabis fits three criteria for control: that it has "a high potential for abuse," has "no currently accepted medical use in treatment" and "a lack of accepted safety for use [...] under medical supervision." These three points are extremely controversial, as a quarter of the states in the union have opened the door to medical usage and reform advocates can draw on a growing body of scientific evidence against potential for abuse and in favor of potential for medical benefits.

Almost all cannabis arrests are made at the state or local level, but the federal ban is by no means purely symbolic. The War on Drugs still makes battlefields out of legitimate businesses, as federal agents raid medicinal cannabis dispensaries and supersede state law. According to a report by the Marijuana Policy Project, over 190 dispensaries in California have been raided since 1996. Raids can consist of seizure of property and medicine, often the physical destruction of security equipment and computers, and some have resulted in incarcerations of medicinal cannabis patients, according to the MPP. Not all raided patients end up getting tried.

"A lot of patients aren't ever put on trial," Landers said. "They're held without Fifth Amendment rights and can't be charged with a crime."

When patients find themselves on trial in federal courts, they have few resources at their disposal. In the 1998 case U.S. v. Oakland Cannabis Buyers’ Cooperative, the Supreme Court ruled unanimously that state legality was not a workable defense, overruling a previous federal court decision. A 2005 Ninth Circuit case,U.S.Gonzales v. Raich, ruled against another legal defense: "medical necessity" could no longer stand up in court. These decisions greatly constrict the defense options that patients have; state law and medical recommendations don't protect them from conviction.

"You can't make the case for the medicinal benefits of marijuana in court, but federal prosecutors can talk smack about medicinal cannabis all they want," Landers said. "They can use the same arsenal that you're denied."

Federal courts did agree to one protection regarding medicinal cannabis: the rights of doctors to recommend it. In the 2000 district court decision of Conant v. McCaffrey, doctors became protected from federal punishment for discussing or recommending THC to their patients. This was regarded as a First Amendment right and thus ensured.

"Doctors that prescribe medical cannabis are true patriots," said Brian Davies, co-owner of the local Canna Care dispensary. "They study hard for eight years and then risk their careers and reputations to prescribe people the medicine they need."

Different presidential administrations have different approaches to enforcement when it comes to medicinal cannabis. Under Clinton, civil measures were preferred over raids, and cases were generally sorted out in court. In the Bush years, the War on Drugs was in full swagger and raids became more commonplace. Now, under the Obama administration, the medicinal cannabis policies of the DEA remain in flux.

Obama promised before and after his election that federal raids of state-legal dispensaries and patients would stop, but the DEA's trademark door-busting has yet to cease.

"I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he told the Oregon Mail Tribune in March, and continued that the "basic concept of using medical marijuana for the same purposes and with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate."

Yet, at least six dispensaries in California have been raided since Obama took office.

A DEA spokesperson clarified this seeming contradiction: "Obama didn't say that DEA raids would stop . He said that those abiding by state law would be given the lowest enforcement priority." He also alleged that medicinal cannabis activists have unrealistic expectations. "It doesn't mean 'no more DEA raids forever,' that's just what the legalizers want to hear."

The DEA source said that they "don't get to choose the laws they enforce," but acknowledged that "there is a selection process as to which dispensaries get raided." According to the source, the choice is based on complaints or reports of "harm to the community."

Only the most careless dispensaries get raided, according to Landers, so for the most part clubs are only partly worried about federal agents breaking up the show.

"It's always a concern, but we're a legitimate business and we're staying open," said Clyde Baker, owner of Hugs Alternative Care.

The jumble of legal cannabis statutes, and lack thereof, resembles an M.C. Escher sketch. Numerous perspectives all seem to be true at once, but in the end, it's just lines on paper.

Photos by Cheya Cary / Frederic Larsen of Corbis

Editor's Note: The Sacramento Press editorial staff edited this article after it was published due to a formatting error.

Sac PD may fill detective positions

2009-07-30T04:00:26Z

The news that the Sacramento Police Department will receive $9.5 million in federal stimulus dollars means that the department’s specialized units may eventually receive a boost in staffing, according to department spokesman Sgt. Norm Leong.

The department announced earlier this week that it had been selected to receive federal money under the Recovery Act Funding to Support Law Enforcement program. The money will be used to pay the base salary of 35 officers for three years, Sacramento Police Officers Association President Brent Meyer said.

Meyer said he was “ecstatic” about the federal money, noting that the department thought it might have to lay off 67 police officers earlier this year due to the city’s budget problems. The department avoided the layoffs through the union’s negotiation process with the city. However, the department expected that hiring would be stagnant over the next two years, Meyer said.

The 35 new hires will work on patrol in the field because the first assignment for new police officers is patrol, Leong explained. Police Chief Rick Braziel has set the minimum number of officers on patrol at 275, Leong said, and the department has a number higher than that on patrol right now. But 103 officer positions in the department are now vacant.

With more officers working on patrol, the department could choose to open the testing process to fill specialized jobs, including detective positions, according to Leong. Officers currently working at the department could apply to move to a specialized job, he said. Any moves within the department could not take place immediately because the new officers will need to learn their new assignments, he added.

The department’s detectives are overworked, Leong said. Filling more detective positions would allow the department to work on additional investigations it has not been able to pursue, and would also help improve customer service, he said.

Department managers will decide which units should receive additional staff, he noted, and the department has not yet received the federal dollars.

To respond to the failing economy, the department downsized specialized units, including narcotics and traffic, Leong explained. When Braziel joined the department in January 2008, he immediately prepared the department’s budget to face economic hardship, Leong noted.

To brace itself for the recession, the department cut back on overtime and did not fill positions that became vacant, he explained. “For a long time, we had cost savings because we were able to save money by not filling un-budgeted, and even budgeted positions,” Leong said.

*Photo of Chief Rick Braziel courtesy of the Sacramento Police Department.

Kathleen Haley is a staff reporter for The Sacramento Press.

A third way for the marriage debate

2009-03-11T06:44:42Z

The AP is reporting that a pair of college students have proposed a ballot measure that will replace the word "marriage" with the term "domestic partnership" in all state laws. Secretary of State Debra Bowen said today that supporters can begin collecting the 700,000 signatures to get the measure on the ballot. Domestic partnerships will retain all the rights of marriage, and all couples will be eligable for domestic partnership, regardless of sexual orientation.

Is this a good or bad idea? Please express yourself.

The Elusive Sacramento Bike Messenger

2009-01-08T21:42:47Z

A common scenario for a Sacramento bicycle messenger: I enter an elevator in one of the taller office buildings downtown. A thirty-something man in a very expensive suit and glistening hair enters with me, holding a laptop case and perhaps a Starbucks grande et cetera (cliché, but very true). A few seconds into the ride to the 23rd floor he turns to me with a smirk and says, “You a runner? A court runner?”
I glance back and say, “Sort of. I do a lot of court filings, but I work for an independent company rather than a law office. I’m just a general messenger.”
Despite the obvious clues (bike gloves, heavy-duty shoulder bag, short-bill cycling cap, some grease on my right calf), he asks, “So you ride a bike? You’re a bike messenger?”
Maintaining patience, I smile back. “Uh, yes. Yes I am.”
Still smirking, his brow wrinkles and he says, “Huh, that’s strange. Like the kind in San Francisco? I’ve never seen any here in Sacramento…”
At this I can only chuckle and shake my head a little, knowing that I’ve been delivering envelopes to his law firm on the 23rd floor nearly every morning for countless months. The elevator doors open and he steps out first, striding away without another word as if he had ridden all the way up here alone.

It would seem surprising that Sacramento doesn’t employ more humans on bikes. Being the political hub of the wealthiest state in the union makes for an incredible amount of legislative paperwork along with all of the obligatory legal malarkey carried out in private firms and various courts (these are our primary clients). And yet, the bike messenger population in Sac only fluctuates between about 13 and 24 people, split up between six or so companies. To give a sense of scale, for a brief time I worked at a single company in SF that employed over fifty people on bikes. I never even had a chance to meet all of my fellow employees while I was there. That one company could have handled two downtown Sacramentos with bikes to spare.

And it does make sense; 13 Sacramento blocks equals about a mile, so all of these courts and law offices and state departments are squeezed into a square grid two miles in diameter. The bicycle affords quite a bit more freedom of travel through a city environment than a car, which allows us to get from the reception desk at the top of a high-rise to another on the other side of the grid in well under 10 minutes. This ensures that the most time-sensitive rush delivery will most likely make it on time, which eliminates the need for separate crews of short and long-range riders, a common feature of messenger life in larger cities like San Francisco or New York.

Compared with these other places, Sacramento’s need for bicycle messengers is an entirely different beast altogether. The common assumption is that, like other cities, our bread and butter is hauling odd boxes and poster tubes with blueprints inside. But the average Sacto courier resembles a legal secretary far more than a cardboard packhorse. The majority of my deliveries throughout the day involve small envelopes and legal documents to be filed at the state and federal courts. Distributing information packets from lobbyists throughout the offices of congress in the capitol building is routine, and every messenger in town can be found, at some point in the day, standing at the civil filings counter at superior court, debating with a clerk on the particular department an action in a lawsuit must be received in.

Ironically, the lingo of the Sacramento messenger is typically the lingo of the lawyer and politician, which makes for an interesting juxtaposition since many of us do fit the gnarly, unkempt, post-apocalyptic description of the archetypal messenger and are able to carry out legal discussions with attorneys in elevators. However, this is rare; most of them just mention the heat of summer, the cold of winter, or ignore us, preferring to escape from the suit-and-tie over a cell phone call to a golfing buddy. Accepting this, I wait intently for my floor, several paper careers entrusted to my bag.