Monday, December 11, 2017

To Catch a Rat

Rats don't belong in atticsFor whatever reason, this year has been the year of the rat at my house. No, I'm not talking about the Chinese Calendar.  I'm talking about the #$@#@$ rats that I've been trapping in my attic. Really been a pain in my backside but you gotta go get 'em before they start to multiply and/or gnaw on wires and things.

As I was preparing to catch another rat (OK, we've only trapped two so far, but that last one was HUGE), I got to thinking about law and legal research.  Specifically, I was thinking about how I go about getting prepared to do a research project.  For instance, when I'm trapping rats,
  • I start by setting up the ladder (to get to the attic),
  • Then pull on my lightweight pants, 
  • Strap on my knee pads (to crawl on the studs), 
  • Slip on my dust mask, 
  • Put on my 1,200 lumen headlamp, 
  • Put on my glasses,
  • Put on my lucky Cubs baseball cap and, finally, 
  • Slide on my heavy-duty gloves and up into the attic and go a-hunting
When I'm starting a typical legal research project, most times I'll 
  1. Start with West's Annotated California Codes or Words and Phrases (to find a code or case on a particular subject), 
  2. Then move on to West's California Digest (to find more cases)
  3. Next, I may grab a legal encyclopedia like California Jurisprudence, 3d or Witkin California Summary of California Law (to bone up on a particular topic).
If I need to locate a complaint or motion or injunction, I'll head on over to either our California Civil Practice section and look for something in California Forms of Pleading and Practice. If I were looking to work with discovery, I may take a look at California Practice Guide: Civil Procedure Before Trial or California Civil Discovery Practice.  Maybe I'm researching something in bankruptcy.  If so, I'll check out Collier's on Bankruptcy or Norton's Bankruptcy Law and Practice.

Labor issues?  Not a problem and I head over to look at some secondary authorities, like:
  • EEOC Compliance Manual
  • Employment Discrimination Law
  • ADA Employee Rights and Employer Obligations
  • Workplace Harassment Law
  • California Employment Law
  • California Practice Guide: Employment Litigation
Environmental issues?  Again, no problem as I look at more secondary authorities, like:
  • Environmental Law
  • California Civil Practice: Environmental Litigation
  • California Environmental Law and Land Use Practice
  • Guide to CEQA
  • California Water Law and Policy
  • California Land Use Practice
  • Practice Under the California Environmental Quality Act
among other things.

The point to all this is that there are approachable steps to most any legal problem and answers to most every problem. Basically, start with a case or code (primary authorities) and branch out from there (with secondary authorities).

If you ever have a legal problem that you don't know how to answer, your best bet is to head over to your local county law library. Why? Because your local county law Librarian is your single best bet to answer all of your legal research questions. 

That's why.

Monday, December 4, 2017

Word of the Month for December 2017: Common Counts

Pleading and Pleadings are not the same
Recently, I have noticed a rash of lawsuits by corporations who issue credit cards.  Most all of these actions are pled under the common count claim of money had and received. Wait, before we get too deep into this, what is a "common count, anyway?" According to Black's Law Dictionary, COMMON COUNTS means:
In a plaintiff's pleading, in an action for debt. Boilerplate language that is not founded on the circumstances of an individual case but is intended to guard against a possible variance and to enable the plaintiff to take advantage of any ground of liability that the proof may disclose.  In the action for indebtiatus assumpsit, the common count states that the defendant had failed to pay a debt as promised.
The thing is that as far as COMMON COUNTS go, there are five separate COMMON COUNTS. They are:
  1. For money had and received (popular with credit card companies)
  2. For work, labor, services, and materials rendered and requested by defendant (works like a mechanics' lien)
  3. For goods and merchandise sold and delivered to defendant for which defendant promised to pay plaintiff
  4. For money lent by the plaintiff to defendant at defendant's request (i.e. not a gift)
  5. For money paid, laid out, and expended for defendant at defendant's request (similar to a novation)
Our story today revolves around the 4th one: for money lent by the plaintiff to defendant at defendant's request.  See, once upon a time, an older man came into our law library. Seems older man had a sizable sum of money to his son-in-law at the behest of son-in-law and his deadbeat daughter. 

NOTE: that's LENT as in it was not a gift.  Older man, much to the chagrin of deadbeat daughter, had son-in-law sign on the dotted line that he would repay the full sum by a date certain. Son-in-law failed to pay by that date and, again against deadbeat daughter's wishes, Older man came to the law library seeking help as to what he could do to recover his monies LENT.

Thing is, Older man was right to come to the law library instead of pecking around the Internet trying to find something to help him because in less time than it took me to write this sentence, I was able to lead Older man over to

and off Older man went plotting his revenge,...uh, I mean case.  

Yep, we've got a whole lot of stuff on our law library shelves to help give you peace of mind (or nightmares, as the case may be).  Why not head on over to your local county law library and see what it can do for you?

Monday, November 27, 2017

I Did Not See That One Coming

Giraffe did not see that coming
You gotta wonder what judges are thinking when they hand down decisions.  Sometimes, you think they're going one way and then they go another.  Sometimes, they come up with decisions that are so "novel" that you gotta wonder where they came up with that one.

For example, I was reading the Daily Journal the other day and found People v. Garcia, 2017 DJDAR 10777 (2017).  Now, I'm not complaining about this case.  In fact, I'm applauding the courts decision - it's just the way they got to their decision that is baffling.

The facts of this case are that Pedro Garcia was staying as a guest at his sister-in-law's house.  At some point while he was a guest, he forcibly raped and sodomized his 12-year-old niece (who was also at sister-in-laws home as a guest and was a family member).  Garcia was, subsequently, convicted of forcible sex crimes against a child under 14 AND first degree burglary.

See, the problem is that burglary is generally associated with people breaking and entering a home.  Mr. Garcia was an invited guest in sister-in-laws home.  California Penal Code section 459 notes that persons are guilty of burglary where:
Every person who enters any house...with intent to commit grand or petit larceny or any felony is guilty of burglary.
Garcia argued that because sister-in-law invited him into her home, that he (Garcia) can do whatever he wanted in the house. It was the courts reasoning, however, that even though Mr. Garcia was an invited guest, that he did not have an unconditional possessory interest in the home.  Basically, just because you are a guest, you can't do whatever you want to whomever you choose to do it to.

What bothered me is issue of intent.  Specifically, if Garcia didn't have the requisite intent to commit a crime when he was invited into the home, how could he be guilty of burglary?  The court fixed this "problem" noting that because Garcia did not have an unconditional possessory interest in the home (since he was merely a guest), the crime was effectuated when he entered the niece's bedroom with the intent to rape niece.  Since niece did not say, "sure come on in and rape me," Garcia was a uninvited guest in (or into) niece's bedroom and, as such, was convicted of burglary.

Wow, that's stretch but again, I'm not complaining.  It's great that the court got it right (this time) and caged this animal for life.  What's funky is how they got to their conclusion.  Further still is that the court seemed to really, REALLY want to nail this guy when it noted that:
Our homes are sanctuaries, places of refuge and safety.  When we invite another into our home, we trust him not to harm us or those who reside with or visit us there... because we expect to be safe in our homes and with our invited guests, an invitee who preys on someone within our home is as dangerous and as heinous as the burglar who intrudes by picking the lock or climbing in the window.
Clearly, the court had it out for this guy and needed to make a statement based on how some things have been going on. Specifically, if you are invited into someone's home (or car, or airplane, or wherever), don't jack around and start stealing stuff or messing with the sanctity of that person's possessory interest.  Be a good guest, keep your hands to yourself, don't wander around and cause problems, and remember to say thank you when you leave. 

So, kudos to the Ninth Circuit Court of Appeals.  You did good, today.

Monday, November 20, 2017

Just start

Easements can be a hassle
I think it was Woody Allen who said, "Eighty percent of success is just showing up."  Good thought since most people who need legal help think they're so unqualified that they can't even help themselves.

Take, for example, the lady who came into my law library the other day.  Seems she lives next to a house and they share a common driveway.  In fact, she and he both have a common easement.  For those that don't know, an EASEMENT is a right to cross or otherwise use someone else's land for a specified purpose.  In this case, she needed the common road to access her house.

The problem was that the other guy was acting like a jerk by blocking her access to the driveway.  He'd park his car in the middle of the road or block it with chairs and rubbish.  It got so bad that when she had to call an ambulance one evening, they couldn't get through because of the rubbish blocking access.

When lady had had enough, she called the police but they said it was a civil matter and couldn't do anything to help her. So, she figured she'd write a letter to the court and explain the situation.  That didn't do anything.  So, she decided to go to the courthouse and see if someone could help her.  They didn't/wouldn't but suggested they go to the law library.

That's where I came in.  Lady walks up to me, regales me with her tale of woe, says she can't afford an attorney and bemoans the fact that she doesn't know what else to do.  I tell her she has two options.  OPTION ONE: remove the rubbish and ignore the jerk neighbor's rantings.  OPTION TWO: File legal process against jerk neighbor.  Lady is distraught and says she wouldn't know where to begin.  Good thing she's in my law library because, as it turns out, I do know where she needs to start.

Quick as a flash, I suggest lady take a look at:
and before you knew it, lady knew most everything she needed to know about her situation like the difference between dominant and subservient easements and whether to file a permanent injunction or a complaint to quiet title. Who knew she could figure out what to do and how to do it? Turns out her local county law Librarian (i.e. me) did. I knew she could do it because she showed up. Imagine that!

When next you have a problem of a legal nature and can't seem to scrape enough coins together to get a lawyer to represent you, why not take the plunge and head over to your local county law library and see what your local county law Librarian can do to help you get out of your mess.

Monday, November 13, 2017

Honoring G.I. Joe

A minute of silence for all Veterans
You gotta wonder the timing of some things. Take, for instance, November.  November is the month for Thanksgiving and Veterans and wouldn't you know it but just the other day, I had a young Marine come into our law library seeking assistance?

Seems a few months back, he was serving overseas. When he got home and was sifting through his mail, he found that he had been served a complaint for a sizable sum of money. Because he didn't respond after 30 days, a default was entered against him.

So, let's recap.  Military man is serving overseas and while he was deployed, he was served and a judgement was entered against him.  I think that the operative words here are: WHILE HE WAS DEPLOYED.  The thing is, courts really don't like it when people take advantage of persons serving in the military.  Really, REALLY.

I guess because politicians don't like it they created the Servicemembers Civil Relief Act (SCRA) in 2003 under 50 USC 3901-4043.  Heck, according to the SCRA:
the Attorney General is authorized to file a federal lawsuit against any person (or entity) who engages in a pattern or practice of violating this law.  The Attorney General may also file such a suit where the facts at hand raise "an issue of significant public importance.”  When the Attorney General files a lawsuit under the SCRA, she has the authority to seek monetary damages on behalf of individual servicemembers.  The Attorney General also has the authority to seek civil penalties, equitable relief, and declaratory relief.  See Section 4041
In Sacramento, politicians don't take messing with our soldiers either and created similar protections under California Military & Veterans Code (Div 2, Pt. 1, Chp. 7.5) §§ 400-409.13.  So, with little fanfare, I suggested Marine take a look at:
and off Military man went to seek retribution.

Yep, if you're going to be messing with someone, you might want to consider NOT messing with those serving in the military.  Why?  Because there are whole lot of people watching their six and they don't take kindly with people jacking around with those who serve.

I'm just sayin.