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.

Monday, November 6, 2017

Word of the Month for November 2017: Qualified Immunity

Cops (like everyone else) loves donuts
The longer I work in the business of law, the less I am surprised about things. Things like judges who make law on the bench.  Things like politicians who think they're above the law.  Things like police who think the're above the law (in the video below, the Public Defender is defending her client and is arrested for doing so - and the police go and violate the law messing up the whole process (fruit of the poisonous tree, and all).

Thing is, daily I see or read about instances where the police ignore the rule(s) of law to effectuate an arrest and it makes me wonder whether police get prizes for arresting people?  So, for a jaywalking arrest, you get a whistle; for a misdemeanor, you get a dozen donuts; for a wobbler felony, you get a pony.  Is there some competition to chalk up arrests?  I got to wondering about this after helping this Guy who came into the library for help.  

Seems Guy had been walking through a local public park one day when a police officer ("Cop") approached him and demanded Guy lay face down on the ground.  When Guy asked why, Cop called over his four buddies who proceed to beat the living crap out of Guy until, now unconscious, Guy fell face down on the ground breaking his nose, his left cheek bone, a few teeth, and lost a couple quarts of blood. 


Months later, after getting out of the hospital, Guy filed a lawsuit against the city and the Cops.  Guy loses because the court says Cops are protected under the concept of qualified immunity.  Wait, what?!

According to Black's Law Dictionary, QUALIFIED IMMUNITY is:

Immunity from civil liability for a public official who is performing a discretionary function as long as the conduct does not violate clearly established constitutional or statutory rights. See also Saucier v. Katz, 121 S.Ct. 2151 (2001).
In this case, Guy says he was walking in a public park and was beaten senseless by a four thugs who happened to be wearing blue uniforms.  As far as Guy is concerned, "discretionary function" should not extend to beating a person into unconsciousness.  In any event, having lost his case in Superior Court, Guy filed his Notice of Appeal and was looking for information on how to best argue his case at the appellate level.

In the course of looking for information for Guy, I came across Behrens v. Pelletier, 116 S.Ct. 834 (1996) which noted that the qualified immunity defense shields government agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 

So, basically, if Cops say they believed Guy was violating the law, and were beating the stuffing out of Guy only because Guy was resisting arrest, they can do whatever they want - since Guy essentially has the burden of proving that he wasn't committing a crime or wasn't resisting arrest.  So, who do you think the court is going to believe?  Four Cops or one Guy?

While the voice in my head said, "face it, Guy is screwed,"  I did my best James Dean and led Guy over to:
and off Guy went to develop his case.

The thing is there are (at least) four sides to every story there's Guy's story, Cops story, what the judge believes, and what actually happened.  I mean who is to say Guy isn't fudging the facts to elicit sympathy?  Would you?!

The problem is that as long as you have a thing like qualified immunity hanging over the heads of we the people, there is always going to be a hint of impropriety by big government. Get rid of that immunity and come out fighting like everyone else and only then can we freely decide who is (or is not) guilty. 

Monday, October 30, 2017

It's all true

Truth is what it is
In the beginning when the smart people of the world said the world was flat and the earth was the center of the universe, everyone believed them.  When television was new, if someone said it on the TV, everyone knew it had to be true.  Fast forward a few decades and we get Facebook.  Turns out there are people who believe if it's on Facebook, it must be true.  

Have you ever heard something and thought, "That can't be true?"  Turns out there are a whole lot of things being said all the time that are, eventually, shown to be true. For example:
Wait, what?!?  County law libraries are open free to the public?  Yes, yes they are.  So, funny story. Guy comes into the LAW library.  Wants to know if he can come into the LAW library even though he is not an attorney or a judge or someone who works for an attorney.  I say, yes, he can come in and use/peruse everything we have in print and online. Floored, is he.  "How can anyone expect me to go through everything in one day," he asked.

We're not the Louve, I said, but I suspect it might take more than a day to get around to everything.  Take, for instance, our Bankruptcy collection.  Spanning an entire section, we've got everything from how to file bankruptcy to how to protect a creditor's rights.

Then there is our resources on corporations.  In addition to codes from every state in the union dealing with corporations


and we have over 18 CEB titles dealing with all things corporations and business (not to mention the dozens of other titles dealing with business and corporations).

I could go on and on and on about all the great things we have here at our LAW library that can help you do business or get out of a mess.  Busy as you are, why not take a break and just head on over to your local county law library.  I have no doubt but that your local county law Librarians have exactly what you need to help you do whatever you need doing.

Monday, October 23, 2017

No pain, no gain

A lazy man's mustache
Have you ever wondered why Hitler had that funky little mustache?  I was wondering that today as I started shaving.  See, I was sick for a couple days and hadn't shaved.  When that happens, the hairs on my face grow a bit long and since I'm too cheep to buy a new razor, it can really hurt when I start to shave my chinny chin chin.

So, picture it, Hitler comes in from days on the front line and starts to shave.  I can imagine the pain he's feeling having to shave with a knife or an old Schick blade.  OUCH!  Then he gets to that part just under the nose annnnnnnnd says "der Teufel mit diesem Mist, Ich werde es einfach herauswachsen lassen!"  And thus was born the funky little mustache we all know and love.

Of course, this got me thinking about all the painful/scary things people do (or choose not to do) in law.  Like not responding to a complaint when they get served process (i.e. notice that you are being sued).  As painful and scary as anything legal is, I know if I were served a summons and complaint that I would at least take a few minutes to read that opening announcement on the front of the summons, to wit:
NOTICE!  you have been sued. The court may decide against you without your being heard unless you respond within 30 days.  Read the information below.  You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff.  A letter or phone call will not protect you.  Your written response must be in proper legal form if you want the court to hear your case.  There may be a court form that you can use for your response.  You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you.
While the the notice painfully goes on and on and on, there are a few things of import right up top that should be pointed out, like:

  1. What does "The court may decide against you without your being heard unless you respond within 30 days" mean? Actually, there are two issues here.  First, if you don't respond to the complaint (see #2, below), court may enter a default against you if the filing party (i.e. plaintiff) filed a Request for Entry of Default with the court (before you file your response (again, see #2, below).  As to the second part, "respond within 30 days," this means that you have, count them, 30 days from the day you were served to file a response.  Not 31, not 3,001.  Thirty.  If you go to your local county law library and say I was served this notice 31 days ago, can I still file a response?  We will direct you over to California Code of Civil Procedure § 412.20 to help you answer that question.

  2. What does "file a written response at this court and have a copy served on the plaintiff" mean? There are a number of ways to respond to a complaint. You could file a General Denial using form PLD-050.  If you were sued for Breach of Contract, you could respond using form PLD-C-010.  If you were sued for a Personal Injury matter, you could use form PLD-PI-003.  If you were sued for Unlawful Deteiner you could use form UD-105.  Of course, for each type of action, you're going to also want to explore and declare any related Affirmative Defenses.  Other ways to respond to a complaint might include filing a Counterclaim, a Demurrer, a Motion to Strike, a Motion to Dismiss, or maybe even a Motion for Summary Judgement.  Most probably.  Can't be absolutely sure.  You might want to talk to an attorney to be 100% sure.  After you draft your response, you need to file the originals with the court AND deliver a copy of your response on the plaintiff.

  3. What does "A letter or phone call will not protect you" mean? It means that IF instead of filing a response you called or sent a letter to the person suing you and asked that they not sue you and you think that that's the end of things, it's not and you are still on the hook (because the plaintiff still wants their money). Even if the plaintiff were to say, "Sure, I won't sue you," don't believe it because they'll say anything to keep you from protecting yourself (like by filing a response).

  4. What does "Your written response must be in proper legal form" mean?  It means that you must format legal documents based on the rules of court.  In California, those rules can be found in California Rules of Court 2.100 et seq.  If you are reading this and are in a state other than California, then Google your rules of court by typing: "[state name] rules of court pleading format" (without the quotes).

  5. What does "There may be a court form that you can use for your response" mean?  It means that Californians do love their litigation.  So much so that the Judicial Council of California created cheat sheets based on the California codes to help people do all things legal.  Whether you're filing a lawsuit, a motion, an appeal, an injunction, or just changing your name, the Judicial Council forms help people quickly deal with many (but not all) legal issues.  Just check the box or fill-in a blank and you're on your way.  If you're not in California, you'll probably have to create your own form using codes and the Rules of Court for your state or jurisdiction (see #4, above).

  6. What does "You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you" mean?  It means if you go to the website, you have a 50/50 chance of finding something.  If you go to the courthouse, they may give you some suggestions but they will NOT give you any forms.  If, however, you go to your county law library, the Librarians will scramble over themselves to help you find whatever it is you are looking for.  We can't tell you want to do with it, but we can help you find resources that can.
So, how painful was all that?  Yeah, a bit scary, but everything new is scary. The thing to remember is that you can figure all this out on your own. 
    Of course, if you want to alleviate some of your angst and know that you're getting pointed in the right direction, you can always just hit up your local county law Librarian to help you find resources to help answer your most pressing legal research questions.

    Yeah, that's what I would do.