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Wednesday
Feb262014

New Family Law Adds Impersonation to Domestic Violence Claims

 

by Michelle S. Robins

 

Identity thieves beware, restraining orders can and will be issued against you in the future. 

Certain sections of the California Family Code regarding domestic violence have been repealed and amended, going into effect as of July 1, 2014. Currently, the law says a court may decree that a party cannot molest, threaten, attack, strike, stalk, sexually assault, batter, harass, destroy the personal property, contact (via telephone or mail, directly or indirectly) or otherwise disturb the peace of certain named family or household members.  

In July, add credibly impersonate or falsely personate, to this list.

Assembly Bill 157, written by Nora Campos of the 27th District, makes it a crime to falsely impersonate or steal the identity of a domestic violence victim. According to Campos' State Assembly website, false impersonation online is becoming a growing problem for those who suffer abuse.

When the law goes into effect, a judge may issue an ex parte restraining order against a person that falsely impersonates another person.  This means that the alleged domestic violence victim may not have to give the domestic violence perpetrator notice of a request for a restraining order or the time required for notice may be shortened. 

Furthermore, in some cases, the alleged domestic violence perpetrator does not even have to be present in court when temporary domestic violence restraining orders are issued.  Once restraining orders are issued, those who violate the order may be held in contempt of, which is a misdemeanor.

Disclaimer:

This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Feb122014

California Family Law: Broken Promises, Broken Proposals

 

Who keeps the engagement ring?by Lovette T. Mioni

 

February 14th is considered the most romantic day of the year for many. Sometimes, romanticism spurs a compulsion to make a grand gesture, like a very public proposal. Whether public or private, about six million people expect or will offer a marriage proposal on Valentine's Day, according to CNN.

Sometimes the best laid plans go awry though, and that is often the case with proposals. In that situation, who gets to keep the ring?

General rules of etiquette imply that a fiancée return the engagement ring to the former intended when a wedding is called off, regardless of which party cancelled the wedding plans.

In California there is a law that addresses this issue. California Civil Code §1590 says:

Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.

This means that civil courts in California look at who broke the engagement. If an engagement ring donor breaks off an engagement, it is likely a court would rule that the recipient, anticipating marriage, may legally keep the ring. If the donee broke off an engagement, the donor has the right to legally reclaim the ring. 

If you are considering giving a very expensive engagement ring, or a family heirloom engagement ring, we recommend obtaining a prenuptial agreement that sets forth who will keep the engagement ring in the event of a break up. 

Contact one of our Divorce Attorneys for more information.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Jan302014

Protecting Tenants at Foreclosure Act: California Court of Appeal

Business LitigationSan Fernando Valley Business Litigation Lawyer

 

Nicholas Kanter
818.907.3289

Five years after the Protecting Tenants at Foreclosure Act was passed, the California Court of Appeal recently published its first opinion interpreting the Act in depth.

The PTFA, a federal statute, was passed in 2009 as an effort to protect tenants from being quickly displaced from a rental property following a foreclosure sale. Prior to the PTFA, a foreclosure sale would generally eliminate a lease that was junior to the deed of trust for the subject property.  

As a result, the purchaser at a foreclosure sale was able to file an unlawful detainer lawsuit against tenants in a foreclosed property following the expiration of a Three Day Notice to Quit. The PTFA changed this.  

Under the PTFA, a purchaser at a foreclosure sale takes title to the property subject to the rights of a bona fide tenant residing in the property under a bona fide lease, with certain exceptions. 

For example, where the lease is terminable at will, or the purchaser intends to occupy the property as his/her primary residence, the tenancy can be terminated upon 90 days written notice to the tenant. However, if these exceptions do not apply, a foreclosure purchaser must generally honor the bona fide tenancy through the end of the lease.  

In Nativi v. Deutsche Bank Nat'l Trust Co., (Cal. Ct. App. Jan. 23, 2014), Deutsche Bank purchased a residential property at a foreclosure sale in August 2009. At the time of the sale, Rosario Nativi was renting a converted garage unit on the property pursuant to a lease that did not terminate until June 1, 2010. Following the sale, Nativi was displaced from the property and sued Deutsche Bank for a number of landlord-tenant causes of action, including wrongful eviction, breach of the covenant of quiet enjoyment, illegal entry of landlord and illegal lockout.  

Ultimately, the trial court granted a motion for summary judgment filed by Deutsche Bank finding the foreclosure sale extinguished the lease under California law, and therefore Deutsche Bank, as the immediate successor in interest in the property, did not step into the shoes of the landlord.  

The Court of Appeals reversed the trial court finding that under the PTFA, 

…a subordinate bona fide lease survives foreclosure for the remainder of the term by operation of the Act regardless of the state law to the contrary and, consequently, the bona fide tenants under that lease and the immediate successor in interest in the foreclosed property have a landlord-tenant relationship, although the lease may be terminated as provided in the Act. 

While the Court’s holding is not surprising in light of the PTFA’s language, it reinforces the importance of the foreclosure purchaser to take steps to determine if the purchased property is tenant occupied, and if so, the terms of the tenancy. Moreover, if a bona fide tenancy exists, based on the Court’s ruling, the purchaser becomes the tenant’s landlord and should act accordingly or risk claims by the tenant. 

Although the Nativi ruling focuses on the rights of bona fide tenants under the PTFA, it also touches an important but overlooked aspect of the Act.  

In particular, the PTFA does not explicitly address whether a bona fide tenant is required to pay rent to the new owner of the property, and if so, whether the new owner can terminate the tenancy for failure to pay rent without waiting 90 days. Nativi appears to answer this question in the affirmative.  

As quoted above, the Court held that “bona fide tenants…and the immediate successor in interest…have a landlord-tenant relationship…” In a landlord-tenant relationship, the tenant pays rent to the landlord.  Furthermore, the Court relied on administrative construction of the PTFA to support its ultimate findings.  One of the administrative guidelines relied upon was a release by the FDIC which stated: “For tenants under a lease who are current on their rental obligations, PTFA prohibits eviction prior to the end of their lease terms…”  (Emphasis added). 

This implies that tenants must be current on their lease to enjoy the protections of the PTFA.  A logical conclusion is thus, if a tenant is not current on his/her lease, the new owner may terminate the tenancy prior to 90 days for failure to pay rent.  

The lesson learned here is this: anyone purchasing a residential property at a foreclosure sale should take steps to ascertain the status of the occupants in the property. 

If tenants are occupying the property under a bona fide lease the purchaser should try to obtain a copy of the lease to determine the rights and obligations of both the tenant and the landlord (i.e., the purchaser) thereunder. Depending on the lease terms, the purchaser may be able to terminate the lease upon proper notice to the tenant, or may have to honor the lease until it expires. 

 

Nicholas Kanter is a Real Estate Litigation Attorney at our firm. Contact him via email: nkanter@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

Friday
Jan172014

"Divorce Corp.": What's Missing From This Picture?

Encino Tarzana Divorce LawyerFamily Law and Mediation Attorney Los Angeles

 

 

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

Let's face the facts: For most people, divorce is ugly. But let's not make it uglier than it has to be.

Case in point, Divorce Corp., a film currently in theaters, whose creators are calling it a documentary, depicts the worst possible case scenarios of family law. One of the movie's trailers begins with a voiceover that states, "Death is easier than divorce." That sounds more like melodrama than a documentary.

Another trailer talks about false claims of domestic violence and other crimes, so false accusers can gain financially, or have their spouse thrown out of the house.

The problem with this film is that it only depicts the negative aspects of family law court. There was not one example of a family law litigant who was helped by the family law system. Such examples exist. I recently attended a volunteer appreciation lunch hosted by the Van Nuys Judicial Officers, which recognized the many programs implemented by volunteer attorneys and the countless hours they spend helping people through the legal system.

A Variety reviewer, Justin Chang, says Divorce Corp. is:

…a vigorous but clumsily argued expose of the corrupt family-court practices that have turned one of life’s more painful experiences into a $50 billion-a-year industry. Chock-full of slick graphics, smart talking heads, one-sided emotional appeals and flailing accusations of judicial misconduct…

Yes, divorce is expensive, and maybe it is a $50 billion industry when you consider that half of all marriages in the nation end up in divorce.

This film however, fails to take into account certain facts, and that many couples are able to settle their divorce through mediation. Or that most spouses don't resort to framing their partners for crimes they didn't commit. Yes, there are hurt feelings and some people are vengeful. Not many people wind up in jail or lose their children, just because their marriage went awry.

The one lesson we all can take from this film is this:

Stay reasonable and be willing to compromise. If you can stay reasonable, you can participate in divorce mediation proceedings, eliminating the need to fight over custody or money.

 

Vanessa Soto Nellis is a Shareholder in our Family Law Practice Group. Contact her via email: vnellis@lewitthackman.com. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
Jan162014

Gearing Up: New Driving Laws in California

Personal InjuryPersonal Injury Attorney

 

 

by Andrew L. Shapiro

(818) 907-3230

 

There are new laws aimed at protecting all on our state's roadways, whether they are bicyclists, pedestrians or other motor vehicle operators and passengers.

Much of this legislation is aimed at cracking down on obvious wrong-doers, such as DUI offenders, people who text while driving, and hit-and-run drivers. But a couple laws will affect the rest of us as well.  Here are the new laws for California drivers:

 

Assembly Bill 266: High Occupancy Vehicle (HOV) Lanes

Have a low, or zero-emission vehicle? Congratulations – if you have a valid sticker from the Department of Motor Vehicles, you can continue to use the HOV lanes until 2019 (formerly 2015), or until federal authorization expires or the Secretary of State receives a specified notice, whichever comes first.

 

Assembly Bill 535: Emergency Alert System (Amber Alerts)

Law enforcement can now issue an Amber Alert when a child has been abducted by anyone, including a custodial parent or guardian, where law enforcement reasonably believes that the life or physical health of the child is in danger.

 

Senate Bill 194: Texting While Driving

Driving While Distracted (DWD) is a growing problem. SB 194 is aimed at cutting back DWD accidents caused by teens – one of the largest age groups guilty of this behavior.

Current law prohibits all drivers from using a cell phone while driving, unless it is a hands free device. This bill prohibits anyone under the age of 18 from using any wireless device, including phones, while driving.

 

Assembly Bill 1371: Passing Bicyclists

This is the Three Feet for Safety Act, which requires drivers passing someone on a bicycle to keep three feet away from the cyclist. Failure to maintain three feet of space between an automobile and bicycle while passing results in a $35 fine for the motor vehicle operator, or $220 if that failure results in a collision. This law goes into effect on September 16, 2014.

 

Assembly Bill 184: Statute of Limitations for Hit and Run Accidents

AB 184 amends Penal Code Section 803, potentially doubling the statute of limitations for hit-and-run accidents to six years from the date of any crash that causes serious, permanent injuries or death, subject to all other requirements set forth in AB 184. Before AB 184 the statute of limitations was three years maximum.

 

Senate Bill 717: DUI Search Warrants

This bill amends Penal Code section 1524. Drivers suspected of Driving Under the Influence who refuse a blood test can be served a search warrant to draw blood in a “reasonable, medically approved manner.” This bill was considered an urgency statute and actually went into effect last September.

 

Andrew L. Shapiro is the Chair of our Personal Injury Practice Group. Contact him via email: ashapiro@lewitthackman.com or phone: (818) 907-3230.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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