Remote Depositions

With the onset of Covid-19 and its accompanying changes to how we work, what do you do when it comes to taking and defending depositions?  Many attorneys and their clients are reluctant to conduct in person depositions.  As a result, video conferencing services, such as Zoom, Cisco Webex, and Skype, are now the new normal for remote depositions.

Preparing for and conducting a deposition when the deponent is not sitting in front of you presents its own set of logistical challenges.  Where will the deponent appear?  Where will the court reporter be?  What if you also need an interpreter?  Will the deposition be recorded?  Try to work out as many of these logistics as you can with opposing counsel before you set your date, if possible.

Serving the Notice and Preparing for the Deposition

When you send your deposition notice, specify that the deposition is going to be conducted remotely via video.  If possible, have the deposition notice indicate where each party will be located for the deposition.  Oftentimes this is coordinated by the deposition officer, so check with your reporter in advance and see what their procedures are.  For example, will each party appear via video conference, will breakout rooms be available, and confirm that the deposition will be recorded (do not assume it will just because it is via video).  Also, discuss with the court reporter and opposing counsel how exhibits will be handled – will you email them a certain number of days in advance?  Conversely, if you are requesting documents be produced the at the deposition, request that they produce them a few days before the deposition to give you an opportunity to review in case you want to use them during the deposition.

What about technical issues?

All the parties should be in a quiet area with sufficient lighting.  Familiarize yourself with Zoom, or any other video-conferencing platform you are using.  The middle of a deposition is not the time to discover that you have accidently shared your emails, your deposition outline, or a document you were drafting.  Consider using a device other than your everyday computer, such as an iPad or a separate laptop, if possible.  If not, make sure the only program running is the video-conferencing system you are using.  If you and your client are not able to be in the same room for the deposition, conduct a trial run with your client, so they will be more comfortable with the new procedures.  Depending upon internet connections and strength, a party may accidently be “kicked out” of the deposition.  The party hosting the video conference, ideally the deposition officer, will allow them back in.  Making sure that your client understands that technical glitches can happen and being patient will help them adjust to the remote deposition procedures.

Taking the deposition

In addition to instructing the deponent on the rules of the deposition, it is also advisable to inquire if anyone else is in the room and set some ground rules to avoid outside interference.  Inquire of the deponent if they are the only person in the room.  Ask the deponent to let you know if anyone else does come in the room during the deposition.  Ask the deponent if they are using anything that you cannot see (such as a cell phone, other documents, notes, etc.) and then instruct them to not look at anything other than the exhibits or documents produced while you are on the record.  Have the deponent agree to not communicate with anyone else besides you, including agreeing to not check email, text or use any other form of communication.  Particularly because nervous witnesses tend to speak over the party asking questions, this is a time to emphasize how important it is to listen to the question and respond when the question is finished.  This will allow for more time between speakers and give the court reporter time to adequately hear and record an accurate transcript.

With these tips in mind… Zoom off to your remote deposition!

By: Paula C. Clark, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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Determining Child Support When a Parent(s) is a Military Member

Veterans Day is a federal holiday celebrated each year on November 11th as codified in Title 5, U.S. Code, section 6103. It was originally established as Armistice Day to recognize the signing of the armistice ending World War I, which was executed in the 11th hour of the 11th day of the 11th month in 1918. Each year, Dias Law Firm, Inc. uses the occasion to bring to light special circumstances that may affect military veterans and active duty service members.

General Principal Applicable in All Child Support Cases

California’s rules for determining child support are no different for military members than for anyone else. The trick is in recognizing all of the military member’s income, determining its tax consequences, and understanding its permanence. Let’s start by understanding some of the underlying principles that apply to everyone as defined in Family Code section 4053:

  • A parent’s first and principal obligation is to support the parent’s minor children according to the parent’s circumstances and station in life.
  • Both parents are mutually responsible for the support of their children.
  • Each parent should pay for the support of the children according to the parent’s ability.
  • The state’s top priority is the interests of children.
  • Children should share in the standard of living of both parents, regardless of which household has custody of the children, and even if doing so also improves the standard of living for the other parent’s entire custodial household.

The “Guideline” Formula

California law establishes an algebraic formula that seeks to fairly and equitably establish an appropriate amount of child support based on several factors. The formula, codified in Family Code section 4055, is sometimes referred to as the “guideline” formula. The factors in the formula are:

  • The amount of time the children spend with each parent,
  • The high earner’s “net disposable income” (annual gross income from all sources, less certain specific deductions),
  • The combined “net disposable income” of both parties,
  • A multiplier that varies according to the combined net disposable income, and
  • Another multiplier that varies according to the number of children.

We’ll save the intricacies of the formula for another blog, but one of the most important factors of the guideline calculation is accurately determining the net disposable income of each party. This can be a little confusing for military members.

Defining “Gross Income” for Military Members

In general, “gross income” is broadly defined under Family Code section 4058. It includes, but is not limited to:

  • Commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security (SSA) benefits, spousal support (from another relationship), income from proprietorship of a business, employee benefits, and self-employment benefits.

Courts have interpreted this to mean that virtually any gain or recurrent benefit derived from labor, business property, or from any other investment of capital constitutes gross income. California law excludes only a very few specific sources of income from use when calculating child support, including:

  • Child support payments, and
  • Need-based public assistance programs such as
    • TANF (cash aid – formerly known as welfare),
    • SNAP (food stamps),
    • SSI (federal supplemental security income),
    • SSP (California’s State Supplemental Program), and
    • Need-based VA benefits (not to be confused with VA disability benefits, which are considered income for the purposes of the guideline formula).

Several appellate court cases have clearly defined employee benefits that are regularly received, and specifically including military benefits and allowances, to be included in the definition of gross income. Therefore, all of the following, and potentially other categories of military pay should be considered income:

  • Base pay,
  • BAH (or the BAH rate for military housing provided in kind),
  • BAS,
  • Uniform allowance,
  • Sea pay,
  • Re-enlistment bonuses,
  • Hazardous duty pay,
  • Hardship duty pay,
  • Hostile fire pay,
  • Assignment incentive pay,
  • Family separation allowance, and
  • Family subsistence supplemental allowance.

Net Disposable Income

Once the gross income from all sources is determined, the guideline formula requires deductions for certain items to arrive at the Net Disposable Income. These deductions include:

  • State and federal income tax liability resulting from taxable income.
  • Self-employed worker’s additional contribution (the employer’s portion) to Federal Insurance Contributions Act (FICA). This may impact military members or veterans who also run a business.
  • Mandatory union dues and retirement contributions.
  • Health insurance premiums for the parent and children.
  • State disability insurance premiums.
  • Child or spousal support actually paid (in another relationship).  
  • Job-related expenses, if allowed by the court.
  • A discretionary “hardship” deduction (often allowed for children of other relationships for whom child support is not paid, such as a child from a new marriage living in your home).

Often overlooked is the impact of the “non-taxable” status for the various categories of income listed above. For example, BAH, BAS and some veterans’ disability payments are not taxable. It is important to divide the payments received into taxable and non-taxable subtotals so the guideline calculation can accurately reflect the tax consequences and net disposable income of each parent after taxes.

The guideline calculation itself is often relegated to a computer program which accepts all of the variables mentioned above (including taxable and non-taxable income and the visitation time share ratio), and additional tax filing status information (single/married/head of household and number of exemptions) then calculates the net disposable income after determining the impact of taxes and other deductions on each parent’s gross income.

Non-Permanent Income

Some types of military pay are awarded on a temporary basis while certain conditions apply. Examples include hazardous duty pay, hostile fire pay, and family separation allowance. Others, like re-enlistment bonuses could be paid as a one-time incentive. It would be unfair to continuously impute those sources of income to the military member even after they have stopped. There are several ways a court could manage temporary pay and allowances when determining child support, but only if your attorney understands the situation and the intricacies of the various approaches available.

Dias Law Firm Is Here to Help

We live and work in a community with a large population of military personnel and veterans. Many of our attorneys and staff members have also served in the military or served alongside their military spouses and parents. We know the difficulties veterans and their families face. We can help the court understand your case and ensure the law is properly applied to your specific circumstances. If you are faced with a divorce, child custody, support, or any other legal matter, Dias Law Firm is here to help.

By: David M. Lange, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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The Applicability of a Force Majeure Clause in Lease Agreements

Force majeure clauses allocate risk between the parties when an unanticipated event makes performance impossible or impracticable.  The principle underlying the doctrine is simple and is set forth in California Civil Code § 3526, which states that “[n]o man is responsible for that which no man can control.”  Generally, a force majeure clause is triggered when the occurrence of a force majeure event ultimately renders performance so impracticable that it is excused.  A force majeure even is sometimes more commonly referred to as an “act of God”; however, it applies when there is an insurmountable interference with a party’s ability to meet its contractual obligations, whether man-made or not.  Pac. Vegetable Oil Corp. v. C.S.T., Ltd. (1946) 29 Cal.2d 228, 238.  The interference must be no fault of the non-performing party and the party seeking to invoke a force majeure clause must show “that, in spite of skill, diligence, and good faith on his part, performance became impossible or unreasonably expensive” due to the force majeure eventIbid.  As such, the person invoking the clause must demonstrate that the force majeure event was the proximate cause of nonperformance.

Agreements With a Force Majeure Clause

California case law has demonstrated that compliance with a contract that involves greater expense or hardship than anticipated does not by itself excuse the obligation.  Instead, the party bearing the burden must prove that there exists “extreme and unreasonable difficulty, expense, injury, or loss involved.”  See Metzler v. Thye (1912) 163 Cal. 95, 98; see also Oosten v. Hay Haulers Dairy Employees & Helpers Union (1955) 45 Cal.2d 784, 788.  Similarly, California law requires that parties invoking force majeure demonstrate that “sufficient” or “reasonable” efforts were made to avoid the consequences of the force majeure event.  See Butler v. Nepple (1960) 54 Cal.2d 589, 599.  Commercial leases typically include force majeure provisions.  If such a provision is present in an agreement, the explicit language should be examined.  California courts have traditionally given force majeure clauses a strict interpretation so that the terms of the agreement will generally control and will be enforced by the courts.  While specification of any force majeure event in many states will preclude other force majeure events from being included within the definition, California has interpreted such provisions less narrowly in that a non-listed event can still fit within a written force majeure provision if it is “unforeseeable at the time of contracting.”  See Autry v. Republic Productions (1947) 30 Cal.2d 144.

It is further important to note that in order to invoke a force majeure clause in a lease, the lease may require prompt notice of a claim of force majeure.  Failure to provide adequate notice for such a claim under the provisions of the lease may result in a forfeiture of the claim.

Agreements Without a Force Majeure Clause

In the absence of any applicable contract language or when a non-listed event in a force majeure provision occurs, contract law has recognized situations where a party’s contractual performance is made impossible or impractical by intervening and unforeseeable events.  To protect against such situations, the California legislature codified equitable protections in Civil Code §1511(2), which provides that the performance of an obligation is excused “[w]hen it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary.”  (Emphasis added.)  In essence, the aforementioned code section acts as a default force majeure clause for a contract that does not have one, which would allow a party to take advantage of force majeure protections.  In California, the test for whether a force majeure situation is present is “whether under particular circumstances there was such an insuperable interference occurring without the party’s intervention as could not have been prevented by the exercise of prudence, diligence and care.”  Pac. Vegetable Oil Corp. v. C.S.T., Ltd., supra, 29 Cal.2d at p. 238.

In order for a party to take advantage of the force majeure protections pursuant to Civil Code § 1511(2), the nonperforming party must be able to prove that (1) the force majeure is responsible for the inability to pay, and (2) it was unforeseeable.  For example, a business that was suffering financially before the pandemic may not be able to effectively use the coronavirus as an excuse without proving a direct connection to its failure to pay rent.  As a further matter, the burden resulting from the event must be more than an increase in expense or financial difficulty.  That is, the breach must result from circumstances that are “extreme and unreasonable.”  Butler v. Nepple, supra, 54 Cal.2d at p. 599.  With respect to force majeure, Witkin’s Summary of Law has indicated that it is the equivalent of the common law contract defense of impossibility.  1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 828, pp. 916-917.  As to impossibility, California courts have held that the inability to perform “must consist in the nature of the thing to be done and not in the inability of the obligor to do it.”  El Rio Oils, Canada, Limited v. Pacific Coast Asphalt Co. (1949) 95 Cal.App.2d 186, 197.  As such, where a party’s inability to perform is due to the disruption and/or closure of supply chains and vendors, this may provide further support for the application of a force majeure clause in light of the impact that the disruption has had on the industry.

Contact Dias Law Firm, Inc. today to set up a consultation if you have an issue with your lease agreement.  Our knowledgeable attorneys and staff are here to assist you with your legal matter.

By: Ella R. Floresca, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

Why a Homestead Exemption?

For most Americans, their home is their most valuable asset.  One of the biggest questions that any person who is considering bankruptcy or is facing mounting debts with aggressive creditors will ask is, “Will I lose my house?”

Filing a homestead exemption may provide protections from certain creditors and keep the equity in your home from being taken.  A homestead exemption can protect your property’s equity from certain creditors if you file for bankruptcy or are anticipating eventual judgments in favor of those creditors.  This is all within certain exemption limits and, also, with limitations of application.  The limits are higher for seniors and disabled homeowners. 

The home being protected must be the homeowner’s primary residence for all purposes.

As of April 1, 2019, California allows for the following pursuant to Code of Civil Procedure §§ 704.710, 704.720, and 704.730:

  • If the homeowner is single and not disabled, then the homeowner may be legally exempt up to $75,000 of equity accrued in the home.  This amount increases to $100,000 if the homeowner is married.
  • If the homeowner is 65 years old or older, then the homeowner may be exempt up to $175,000.  Or, this exemption amount may apply if the homeowner is at least 55 years old and has low income and creditors are forcing the sale of the home.

As it relates to bankruptcy law, the exemption applies to Chapter 7 and Chapter 13 bankruptcies.  Depending on how much equity may exist beyond the applicable exemption amount, a trustee may still decide to sell your property.  Talk to an attorney for details.

An important caveat with homestead exemptions is the following:

  • If your home is being foreclosed upon by a mortgage lender or bank, a homestead exemption will not protect your equity.
  • If the homeowner has a judgment against him/her for marital support, child support or if the property has a mechanic’s liens, then a homestead exemption will not offer protection.

In short, homestead exemptions offer protections from certain creditors or can protect equity in the case of an eventual bankruptcy. 

A homeowner should consult with his or her attorney and tax planning professional to discuss the filing of a homestead exemption.

By: Steven E. Alfieris, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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COVID-19 and the Statute of Limitations

How has the pandemic, COVID-19, affected a person’s ability to file a lawsuit?  Governor, Gavin Newsom issued shelter-in-place orders on March 19, 2020.  And from those orders, some counties shut down their courthouses, and some did not.  Our local court, Kings County Superior Court, remained open throughout the spring and summer.  But since, some courthouses closed, the California Judicial Council imposed Emergency Rule 9,which suspended the statute of limitations for civil actions from March 6, 2020, until ninety (90) days after the governor lifted the state of emergency.  Emergency Rule 9 was subsequently amended and clarified that cases that have a statute of limitations less than six (6) months or one hundred eighty (180) days, the statute of limitations is tolled (or on hold) until August 3, 2020.  For cases that have a statute of limitations that is more than six (6) months or one hundred eighty (180) days, then the statute of limitations is tolled (or on hold) until October 1, 2020. 

This emergency rule is intended to apply broadly to any civil action – including family law, probate law, employment law and any special proceedings.  For a plaintiff who missed a statute of limitations deadline after April 6, 2020, he or she may have an extended opportunity to file a lawsuit.  For a defendant, it may mean that he or she may have to fight a lawsuit that would have otherwise been time barred.

Let the knowledgeable attorneys at Dias Law Firm, Inc. assist you with your legal matter.  Call us for a consultation today!

By: Sarah M. Hacker, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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New Statewide COVID-19 Tenant and Landlord Protection Legislation on August 31, 2020

On August 31, 2020, Governor Gavin Newsom and the California legislature enacted the Tenant, Homeowner, and Small Landlord Relief and Stabilization Act of 2020.  This legislation has been touted to protect millions of tenants from eviction and property owners from foreclosure due to the economic impacts of COVID-19.  It is important to note that these protections apply to those tenants who declare an inability to pay all or part of their rent due to a COVID-related reason; however, landlords can immediately pursue any case that does not involve a tenant who has been unable to pay because of a financial hardship related to the pandemic. 

Under the legislation, no residential tenant who provides a declaration of hardship under penalty of perjury can be evicted before February 1, 2021, as a result of rent owed due to a COVID-19 related hardship accrued between March 4, 2020, through August 31, 2020.  Further, no residential tenant can be evicted for a COVID-19 related hardship that accrues between September 1, 2020, through January 31, 2021, if the tenant returns a declaration of hardship under penalty of perjury and pays at least 25% of the rent due.  All higher income tenants who make more than 130% of the median income in their area, if it is above $100,000, must provide documentation to support their declaration upon a landlord’s request.  

Tenants are still responsible for paying all unpaid amounts to landlords for any unpaid rent due between March 4, 2020, through January 31, 2021, which landlords may begin to recover this debt in Small Claims court on March 1, 2021.  The jurisdiction for small claims court has been temporarily expanded to allow landlords to recover those amounts and will sunset on February 1, 2025.  Landlords who do not follow the court eviction process, i.e. locking the tenant out, throwing property out onto the curb, shutting off utilities, etc., will receive increased penalties under the Act.

The legislation further provides additional legal and financial protections for tenants as follows:

            1.         Extends notice period for nonpayment of rent from 3 to 15 days for tenants to respond to landlord’s notice to pay rent or quit;

            2.         Requires landlords to provide hardship declaration forms in a different language if rental agreement was negotiated in a different language;

            3.         Provides tenants a backstop if they have a good reason for failing to return hardship declaration within 15 days;

            4.         Requires landlords to provide tenants a notice detailing their rights under the Act;

            5.         Limits public disclosure of eviction cases involving nonpayment of rent between March 4, 2020, through January 31, 2021; and

            6.         Protects tenants against being evicted for “just cause” if the landlord is shown to be evicting the tenant for COVID-19 related nonpayment of rent.

The legislation also extends anti-foreclosure protections in the Homeowner Bill of Rights to small landlords with 1 to 4 non-owner occupied units, provides new accountability and transparency provisions to protect small landlord borrowers who request CARES-compliant forbearance, and provides the borrower who is harmed by a material violation with a cause of action.  Lastly, the existing local ordinances can generally remain in place until they expire, and future local action cannot undermine this Act’s framework.

The knowledgeable attorneys at Dias Law Firm, Inc. are here to help with your eviction or foreclosure issues.  Contact us today for a consultation.

By: Jonette M. Montgomery, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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Temporary Emergency Rules on Evictions and Foreclosures are Set to End on September 1, 2020

The Judicial Council of California voted on August 13, 2020, to end two (2) temporary emergency rules governing evictions and judicial foreclosures at midnight on Sept. 1, 2020.  Emergency Rule 1 has made it nearly impossible to evict tenants during the current COVID-19 pandemic, which was originally set to remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.  More specifically, Emergency Rule 1(b) and (c) prohibit the issuance of a summons on a complaint and the court’s entry of default or a default judgment for restitution in an unlawful detainer action unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.  In the event that a defendant appears in the action, Emergency Rule 1(d) provides that the court may not set a trial date earlier than sixty (60) days after a request for trial is made unless the court finds that an earlier trial date is necessary to protect public health and safety.  Emergency Rule 2 stayed all judicial foreclosure actions on a mortgage or deed of trust unless the court finds that action is required to further the public health and safety until ninety (90) days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until this rule is amended or repealed by the Judicial Council.  Emergency Rule 2 further tolled any statute of limitations for filing a judicial foreclosure action and extended any right of redemption from a foreclosure sale or petitioning the court in relation to such a right.

California is still under a State of Emergency proclaimed by Governor Newsom on March 4, 2020, and there are numerous executive orders still in force.  In one of those executive orders, the Governor provided the chair of the Judicial Council with unprecedented temporary authority to take action to protect the health and safety of all who have business in the courts and work there, and to maintain the safe and orderly operations of California’s courts in response to the COVID-19 pandemic.  This was during the time that the Legislature was not in session.  Emergency Rules 1 and 2 were originally approved by the Judicial Council at a special remote meeting on April 6, 2020, which were never intended to be in effect on a long-term basis.  Then, the vote by the members of the Judicial Council originally scheduled on June 10, 2020, was suspended by Justice Tani G. Cantil-Sakauye to provide the executive and legislative branches with more time to develop appropriate policy proposals and solutions to deal with the potential impacts of evictions and foreclosures during the COVID-19 pandemic.  The Judicial Council’s decision to end Emergency Rules 1 and 2 on September 1, 2020, was by a 19-1 vote by circulating order on August 13, 2020.  After the vote, Justice Tani G. Cantil-Sakauye made several comments wherein he urged Governor Newsom and the legislature leaders to act before the expiration of the current moratorium and the massive wave of evictions that is expected to occur in California.  At this point, it is unknown what is going to happen, and we must wait and see what our legislature and Governor do in the next few days.  Unless there is an alternative solution to halt evictions by our legislature and Governor, the current moratorium will expire on September 1, 2020, and all evictions and judicial foreclosures will proceed throughout the State of California.

Contact Dias Law Firm, Inc. today for a consultation with our knowledgeable attorneys regarding your eviction or foreclosure issues.  Our firm is here to help.

By: Jonette M. Montgomery, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

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What is Eminent Domain?

Eminent Domain is the power of the government to acquire private property for public use under the theory that this power is an attribute of the sovereignty of the government.

The private landowner, however, is protected by the Fifth and Fourteen Amendments to the U.S. Constitution, which states that “nor shall private property be taken for public use, without just compensation.”  The California Constitution provides the same protection.  This means that whenever the Federal or State government takes property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair market value of the property. 

Eminent domain can be exercised to acquire privately-owned land for public use, such as Kings County is currently experiencing with the High-Speed Rail.  Land has also been acquired for courthouses, forts, highways, and other public spaces such as parks.

In order to obtain the land, it has to be privately held and the owner is unwilling to sell it outright to the government.  The government may take all or some of a landowner’s property, which is usually called a taking.  The landowner, however, must receive “just compensation.”  But what is just compensation?  Because the government (Federal or State) has the right to take the land, the majority of the litigation surrounding eminent domain involves determining what is just compensation.  Just compensation means the fair market value of the property on the date it is appropriated. 

The State will present the landowner with an offer to purchase the land, along with its appraisal of the fair market value of the property.  Oftentimes, the State’s appraisal will differ greatly from the landowner’s perception of value, usually because the landowner has a more detailed understanding of how much his or her property is worth.  For example, a farmer is more likely to know the value of his or her orchard’s infrastructure and production than the State.  As such, the landowner often will obtain an independent appraisal.  This may be much higher than the State’s, depending upon factors such as crop production over time, age of the trees, installation of new irrigation, etc.

The theory behind just compensation is that the landowner should not bear the full cost of the public benefit, but that the entire public (because they are receiving the benefit of the taking, such as using a highway) must also shoulder the compensation to the landowner.  The courts have long supported this theory, finding that “The right of eminent domain…cannot be exercised except upon condition that just compensation shall be made to the owner;…it is the duty of the state…to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it.”  Searl v. School Dist., 133 U.S. 553, 562 (1890).

As the parties (landowner and government actor) negotiate their way through the eminent domain process, they can arrive at a value, or compensation, that is acceptable to the landowner.  As with many government functions, this process can be long and complicated.  Dias Law Firm, Inc. has represented many local landowners in this type of litigation.  Call our office today for a consultation with our experienced attorneys.

By: Paula C. Clark, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

Photo credit: ID 122511589 © Larry Metayer | Dreamstime.com

Bankruptcy: You may be able to keep your home and car

Have you been thinking about bankruptcy?

You are not alone.  While employment statistics reported in June of 2020 were slightly better than May, California’s unemployment rate was still at 16.3% and over 3 million fewer Californians are currently employed compared to last year (source: California’s Employment Development Department press release, June 12, 2020).  In economically troubling times, bankruptcy could be the best option for more and more Californians.

Many people wonder about keeping their property, especially their home and vehicles, when they file for bankruptcy.  Bankruptcy is a complicated subject, and there are usually at least 2 different types of bankruptcy that people can choose to file.  One of those, called “Chapter 7” after the name of the chapter of the federal Bankruptcy Code, can result in a complete discharge of most or sometimes all unsecured debt without repaying anything to creditors.  However, there are some limitations to how this works.  Sometimes debtors who do not understand bankruptcy laws make assumptions that simply are not true.  This can result in disastrous results if their home, car, or even business assets are seized and sold.

When debtors (this is what the Bankruptcy Code calls individuals or married couples) petition the court to resolve their debt, they submit their financial situation to an administrative review by a trustee who must determine whether their unsecured assets meet the standards for exemption from being seized and sold to pay their creditors. A complicating factor is that California has 2 different systems for exempting certain property from being sold in chapter 7 bankruptcy.  One of those systems is more generous to debtors with equity in a home, while the other is more generous to persons with equity in personal property like vehicles.

One of the most important things a bankruptcy attorney can do for debtors is to properly classify their assets and choose the exemption system that allows them to keep the most, or the most important assets.  A bankruptcy attorney can also help debtors determine whether chapter 7 (discharging all debts) or chapter 13 (a court-managed repayment plan) makes the most sense.

Don’t try to navigate this complicated subject alone.  The experienced bankruptcy attorneys at Dias Law Firm, Inc. in Hanford offer a free 30-minute consultation to debtors who are considering filing for bankruptcy.  Bankruptcy probably is not as expensive as you think, and we offer payment plans for your legal fees if you decide to proceed.  Give us a call today!

By: David M. Lange, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that 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 competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

ID 179633655 © Inna Dodor | Dreamstime.com

Small Business Benefits Under the CARES Act

The Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, was signed into legislation on March 27, 2020, and was intended to redress some of the economic pain our nation is suffering as a result of COVID-19.  This article will address three sections of the CARES Act aimed at helping small businesses during these difficult times:  (1) Paycheck Protection Program (PPP) Loans, (2) forgiveness of PPP Loans, and (3) the Emergency Economic Injury Disaster Loan Program and Grant.

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The Families First Act: The Federal Government’s Response to COVID-19

In response to the escalating spread of the COVID-19 virus, and to reduce the impact of the virus on families and the economy, Congress passed and President Trump signed into law the Families First Coronavirus Response Act.  Known as the Families First Act, the law creates expanded employee benefits and protections related to COVID-19, including a new federal paid sick leave law, an emergency expansion of the Family and Medical Leave Act (FMLA), and expanded unemployment insurance provisions.

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Owner Liability for Dog Bites in California

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Overview of Recent Changes in Employment Law in California for 2020

ID 121901332 © Bakhtiar Zein Dreamstime.com



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Overview of Recent Changes in Landlord-Tenant Laws in California for 2020

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Employers: Do You Have to Reclassify Your Independent Contractors in 2020?

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The new year is fast-approaching and employers should be aware that several new labor and employment laws will become effective when the clock strikes midnight and the last of the confetti falls.  In fact, the California legislature and Governor Newsom passed several significant laws this year that will go into effect on January 1, 2020. (more…)

California’s New DUI Law and Ignition Interlock Devices

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An ignition interlock device is a blood alcohol testing device similar to a breathalyzer that is wired into a vehicle’s ignition system. The device requires a breath sample from the driver in order to start the engine. (more…)

Living In A Social Media World: How Social Media Can Cause a Business to Be in Violation of the Law

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Over the past decade, social media and its numerous platforms have grown exponentially.  While social media, undoubtedly, has its perks, it has proven to have a number of pitfalls. (more…)

Settling Divorce Actions Between Military Service Members by Default

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The Servicemembers’ Civil Relief Act (SCRA) is a federal law (50 U.S.C. §§ 3901-4043) that provides a wide range of benefits and protections to those in military service.  The SCRA also provides certain benefits and protections to dependents and, in certain instances, to those who co-signed a loan for, or took out a loan with, a servicemember.  (more…)

Modifying an Irrevocable Trust: An Introduction to California’s Uniform Trust Decanting Act

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Generally, an irrevocable trust, by its terms, is one that cannot be modified.  However, the Probate Code identifies limited circumstances in which modification is allowed, (more…)

Can an Employer Be Found Liable For The Sexual Harassment of Its Employees By Customers or Clients?

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When one thinks of sexual harassment at work, the visual that comes to mind is a boss or co-worker being the offender.  However, a customer or client may be the person treating the worker improperly. Depending on the situation, reporting such issues to management may be even more difficult than reporting on a supervisor or co-worker. (more…)

Drug Testing for Parents in Family Court

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When parents divorce or partners separate and children are involved, custody often becomes an issue.  As such, the court’s main concern is the best interest of the child.  Many factors can be considered by the courts, including substance and alcohol abuse. (more…)

New Changes to Response Times for Unlawful Detainer Actions

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In California, when a landlord wants a tenant to vacate their leased premises, a landlord may have to have court involvement and file an unlawful detainer (“UD”) action to have the tenant removed.  A UD action can be initiated for a variety of things, but the most common actions stem from the tenant failing to follow a provision of their lease. (more…)

Wage and Hour Expanded – Do You Owe Your Salaried Employees Overtime?

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There’s a commonly held belief among both employers and employees that salaried employees are not entitled to be paid overtime, however, this isn’t always true. In fact, the amount you have to pay an overtime exempt employee from year-to-year has probably changed a lot since the last time you thought about making your valued employee a salary man (or woman!). (more…)

What Happens to Our Pets During Divorce?

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Going through a divorce can be a difficult process. No one enjoys dividing their property and it is especially emotional discussing custody plans for your children, but what about your family pet(s)? Because California is a community property state, the courts recognize pets as personal property and when a couple divorce, each spouse is entitled to half the value of the animal. (more…)

Post Judgment Relief in Criminal Matters, Part One

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Everyone makes mistakes…but they don’t have to stay on your record forever. Many criminal defendants who are charged with crimes spend a lot of time and effort to fight the case. However, the fight does not end when the criminal defendant is convicted. (more…)

Wage and Hour Claims

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As an employer, state and federal laws establish how much an employee can work and how an employee must be compensated for those hours worked. Failing to follow these laws allows an employee to sue the employer, and in some instances, the employer could be subjected to civil and/or criminal penalties. (more…)