New Motorcycle Lane Splitting Law

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Riding a motorcycle can be dangerous even for the most experienced drivers.  Although significant improvements have been seen in many areas of traffic safety, that has not been the case with motorcycle accidents in California.  Motorcycle fatalities have consistently risen in California over the past decade. According to the California Highway Patrol website, from 1998 to 2008, motorcycle fatalities increased over 175% from 204 to 560.  It is estimated that fatalities finally did go down in 2009 and 2010, but preliminary estimates suggest that they rose gain in 2011 (no data is available for 2012 yet).

Partly in response to this problem, California has recently enacted new laws about the practice of lane-splitting.   Lane-splitting is when motorcycles share the same lane as another vehicle.  Many people are not even aware that this practice is legal. The Office of Traffic Safety found that only 53% were aware that lane-splitting is a legal practice.

The new rules allow lane splitting when the general flow of traffic is less than 30 miles per hour.  The rules also emphasize that motorcyclists should not be going more than 10 miles per hour faster than the rest of traffic, because accidents tend to increase when the motorcyclists are traveling significantly faster than the rest of traffic.

If you have recently been involved in a motorcycle-related accident, please call The Wilson Law Firm, A Professional Corporation, today for an initial consultation.  We will help you get back up and on the road again.

What is the difference between joint custody and sole custody?

Custody IssuesWe recently wrote a blog about the distinctions between legal custody and physical custody of children in a divorce proceeding. In order to truly understand how custody issues work in a divorce proceeding, however, it is also important to understand the differences between joint and sole custody, as each of these designations carries vastly different legal rights and obligations.

At the outset, it is important to note that in California, as well as in most other states, the courts make the presumption that it is in the best interest of the children to have meaningful contact with both parents.  While the facts of a case may suggest the contrary (e.g., when abuse is involved), in most situations the courts will try to foster healthy relationships between the children and both of the parents. That foundation leads us to the concept of joint custody.

Joint legal custody and joint physical custody are different. Joint legal custody is an arrangement where both parents share decision making responsibilities relating to the health, education, and welfare of the children. Joint physical custody is an arrangement where both parents have significant periods of physical custody.  There is a presumption in California that joint custody is in the best interests of the children (California Family Code §3080).

Joint physical custody should not be confused with 50-50 physical custody.  There are custody arrangements where the children do spend roughly equal time at each parent’s home, but there are also arrangements where parents have joint physical custody, yet the children spend more time at one of the parent’s houses. The key is that each parent has “significant periods of physical custody.” (Family Code section 3004) Both of these arrangements are joint physical custody.

Sole legal custody is when only one of the parents has the legal right and obligation to make decisions relating to the health, education, and welfare for the children. (Family Code section 3006) A courts will not award sole legal custody unless the court concludes that one of the parents should not participate in those decisions for some reason; joint legal custody is the norm even when one of the parties has sole physical custody.  Sole physical custody is when a child only resides with and is only under the supervision of one parent, subject to visitation rights. (Family Code section 3007)

Custody decisions are among the most difficult in any court proceedings.  You should be very careful not to give away any of your parental rights unknowingly.  If you are currently going through a divorce, please contact The Wilson Law Firm, A Professional Corporation for expert legal advice on all custodial issues.

What is the difference between legal custody and physical custody?

 

CustodyDivorce is messy.  When the parties have children together, it can make the divorce proceedings even more complicated.  Creating a workable custody arrangement that benefits both parties and looks out for the best interests of the children is one of the most important issues that needs to be addressed.  To understand how to create an effective custody plan, it is important to understand the difference between legal custody and physical custody.

Legal custody is the right and obligation of a parent to make the critical life decisions that affect the upbringing of the child(ren).  These decisions include general health care decisions, educational decisions, religious decisions, and other important decisions.  For example, parents with legal custody have the right to determine where their child will attend school.

Physical custody is a different combination of rights and obligations altogether.  The parent who has physical custody is the parent with whom the children live and who supervises them. In many cases, it is impractical or difficult to have the children split time living equally in each household, so one parent may be designated as having primary physical custody.

In fact, technically the Family Code only provides for joint or sole legal custody and for joint or sole physical custody, not for “primary” custody.  As a result court orders often say that one party shall have physical custody during certain times and the other party shall have physical custody at all other times.

Many parents get confused in divorce proceedings by misunderstanding the issues of legal and physical custody.  On top of that, they misunderstand the distinctions between joint and sole custody, physical or legal.  We will discuss the differences between joint and sole custody more in a future blog.

 

Can you remove a bad trustee?

Estate Planning

Administering a trust is complicated business.  Even for experienced trustees and attorneys, it can be a challenge.  Many trustees, however, are not trust officers or attorneys.  Rather, they are common people like you who were asked to be a successor trustee by a family member or friend who later passed away.  In addition to managing a trust, they go to work, they have families, and they are busy with other distractions that prevent them from giving their complete attention to the task of effectively administering the trust.

The law, however, makes no exceptions for the experience or education level of each trustee and holds all trustees to the same legal standard.  Although they may have the best of intentions, trustees who fail to administer a trust appropriately negatively affect the beneficiaries of the trust.  When this happens, the beneficiaries can sue to remove the trustee for breach of their fiduciary duties.  Under California Probate Code §15642, you can remove a trustee for any of the following reasons:

  • Where the trustee has committed a breach of the trust
  • Where the trustee is insolvent or otherwise unfit to administer the trust
  • Where hostility or lack of cooperation among co-trustees impairs the administration of the trust
  • Where the trustee fails or declines to act
  • Where the trustee’s compensation is excessive under the circumstances

If you are a beneficiary of a trust and you feel your rights are being abused by a trustee who has breached their fiduciary duty, please contact The Wilson Law Firm today for your initial consultation.

 

Don’t SLAPP the Messenger

July 24, 2013

The First Amendment to the Constitution states in pertinent part that, “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”  Accordingly, we have the Constitutional right to speak out about matters of public importance.

Some people would like to thwart that right.  California has seen a significant number of lawsuits filed for the sole purpose of intimidating and preventing common citizens from exercising their right to free speech.  This type of lawsuit is known as a Strategic Lawsuit Against Public Participation, or a SLAPP lawsuit.

In response to the increasing number of SLAPP lawsuits, the California legislature passed an anti-SLAPP statute.  The statute provides that if you have been served with a SLAPP lawsuit, you can file a Motion to Strike the complaint that has been unfairly filed against you.  In order to prevail in your Motion, you must demonstrate that your speech falls under one of the following four categories:

  • any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
  • any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;
  • any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
  • any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

It is important to note that not every free speech-related lawsuit is a SLAPP.  Competent legal counsel can help you evaluate your case to see if you are a victim of a SLAPP lawsuit. Please contact The Wilson Law Firm, A Professional Corporation today to schedule your initial consultation.

New Twist on Real Estate Fraud

House

Real estate fraud is nothing new to Californians.  Over the last decade, increasingly sophisticated schemes have arisen to take advantage of the boom, and the bust, of the real estate market.  Sometimes, however, the schemes are not all that sophisticated.

A Roseville man was recently arrested for using a common program to perpetrate real estate fraud.  Authorities accused the man of going into foreclosed homes in the Rancho Cucamonga area, changing the locks, turning on the utilities, and pretending to be a tenant.  They said he would then contact the lender and apply for the “Cash for Keys” program.  The Cash for Keys program is a relocation program where lenders pay tenants to leave a foreclosed home in good condition.  It is a win-win for both the tenant, who receives money, and the lender, who can then take the home and quickly get it back up on the market for resale. This fellow’s actions, however, may make lenders rethink the benefits of this practice.

He allegedly received money from both Bank of America and Freddie Mac. An accomplice of his was caught last year and served jail time and was required to pay restitution to the victims.  The California man, who was caught in Georgia, is currently in jail in San Bernardino County awaiting trial.

This story is just the latest in a long line of real estate scams.  As long as there is beautiful, pristine real estate in California, there will be those who try to obtain it through fraudulent means.  We want to protect you.  If you have been a victim of real estate fraud, please call The Wilson Law Firm, A Professional Corporation immediately at (916) 608-8891 for your initial consultation.

How is Child Support Calculated in California?

Divorce Child

When two parents separate, it is often the children who suffer most.  Child support is a court-sanctioned way to help alleviate some of that suffering.  Child support is a financial obligation that is typically paid by the non-custodial parent to the custodial parent to help provide for the well-being of the children. While every case is different, there are some general guidelines that the courts follow in determining how much child support should be.

As a general principle, California law holds that both parents are mutually responsible for the support of their children.  Each parent is expected to make their best effort to provide for their children according to their ability to do so.  It is also presumed under California law that the custodial parent is the one who “contributes a significant portion of available resources for the support of the children”.  With those principles in mind, California has tried to create a uniform process to determine child support obligations.

In calculating the precise amount of child support, California Family Code §4055 details a very specific mathematical formula that serves as a uniform guideline for determining child support orders.  The biggest factors in that formula are the income levels of each respective parent as well as the amount of time that the children will be with each parent.  The formula is so complex that the courts use computer programs to calculate it.

Child support is a very delicate issue because of the emotions involved and because of the significant impact that it can have on the lives of innocent children.  This brief overview in no way substitutes for effectively legal representation. If you are involved in a custody dispute, you need an experienced family law attorney on your side.  Please call us today at (916) 608-8891.

 

 

Inheritance Interference

Trust and probate law has been around for centuries and can often seem to be well-established. It is surprising, therefore, when new developments occur.   A recent court ruling here in California set new precedent and established a new cause of action: intentional interference with an expected inheritance.

While intentional interference with an expected inheritance has been recognized in other states for years (most notably in Florida where model Anna Nicole Smith made the headlines by filing this claim against the heir of her deceased husband), the recently decided case of Beckwith v. Dahl expanded this cause of action to California.

In Beckwith, a man awaiting surgery told his longtime partner to bring him a copy of the will that he had drafted so that he could sign it.  The will divided his property equally between his partner and his sister (his only living kin).  His partner was unable to find the will, so he created a new will for the man to sign.  When the partner called the man’s sister to tell her about the will, she told him that it might be better to establish a trust and that she would talk to an attorney about it.  Unfortunately, the man died intestate, before either the will or the trust could be properly created and his entire estate passed to his sister.

The partner sued the sister for intentional interference with an expected inheritance to recover his portion of the estate.  The California Fourth Appellate District recognized the tort indicating that it consisted of five elements:

  • An expectation of receiving an inheritance
  • Intentional interference with that expectancy by a third party
  • The interference was independently wrongful or tortious
  • There was a reasonable certainty that, but for the interference, the plaintiff would have received the inheritance
  • Damages

Since the court was establishing new precedent it could not rule in the partner’s favor at that stage of the case, but remanded the case back to the lower court so that the partner could amend his complaint to include the facts to support this newly recognized cause of action.

If you feel that you have been wrongly deprived of your inheritance, please contact The Wilson Law Firm, A Professional Corporation for an initial consultation.

What is a Marvin claim?

Sometimes referred to as the “Marvin” law, a Marvin claim allows unmarried partners who cohabitate together over a long period of time to seek financial support and an equitable (not necessarily equal) distribution of the property that was acquired while they were together. The claim is not created by California statutes; instead, it was created in a highly publicized California case in the late 1970’s.

A Marvin claim is named after a case involving the late actor Lee Marvin.  Marvin lived with Michelle Triola for a period of about six years. Following their separation, Ms. Triola filed a lawsuit claiming that she and Marvin had an oral agreement that while “the parties lived together, they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.”  In addition, she asserted that they agreed “to hold themselves out to the general public as husband and wife and that Michelle would render her services as a companion, homemaker, housekeeper and cook to Lee.”  She requested that the court determine her contractual rights as well as any property rights.

Although the court declined to treat Ms. Triola or any other unmarried cohabitant as a spouse, the court did find that contractual agreements that are entered into by unmarried cohabitants are enforceable. Although these cases have been referred to as “palimony” cases (combining the terms pal and alimony), there is never an award of alimony (now called “spousal support). The case is tried in civil court, not family court, and the claims that can be asserted include breach of contract, quantum meruit, and unjust enrichment, among others.

The law surrounding these types of cases is very nuanced and requires the assistance of a capable legal professional.  The Wilson Law Firm, A Professional Corporation, can help you determine if you have a Marvin claim, and if so, how you should proceed.

What is unlawful detainer?

July 15, 2013

As mentioned in a previous blog post, good tenants are hard to find.  Bad tenants can be even harder to remove.  Unlawful detainer is the formal legal name for the process to evict a tenant. Although an unlawful detainer action is not complicated, it does require a number of steps that must be followed precisely and should only be undertaken with the assistance of experienced legal counsel.

After you provide proper notice, and the notice period has lapsed, you may file an unlawful detainer motion to evict the tenant who is now unlawfully in possession of your property.  The unlawful detainer lawsuit should be filed in the county where you reside. Once it has been filed with the court, a copy of the Summons and Complaint need to be served on the tenant.  A copy of the notice and the rental agreement should also be attached to the complaint.

An unlawful detainer action is treated as a summary court proceeding, so the process moves through the court system relatively quickly.  Once the tenant has been served, he or she has five days to respond.  If the tenant fails to respond, the court will enter a default judgment.  If the tenant does respond, discovery will begin, and the proceeding will move towards resolution or trial. If you obtain either a default judgment or a judgment on the merits, the court will issue a writ of possession which orders the county sheriff to remove the tenant from the property, and hopefully resolves the dispute.

This high level overview of the unlawful detainer process is not comprehensive and should not be construed as legal advice.  When pursuing an unlawful detainer action, you should always seek out competent legal counsel to assist you.  Failure to carefully follow the technicalities can result in unanticipated delays and possible countersuits.  The Wilson Law Firm, A Professional Corporation has the experience to effectively guide you through the eviction process in California.