In re: Christmas Trees

In the spirit of this season, I want to share a short post on the subject of Christmas trees. Decorating a tree seems to be an ancient tradition, predating Christ himself, and a custom of having a Christmas Tree also seems to exist for several centuries, yet the appearance of Christmas celebration in the US law is not that old--the oldest cases I was able to find only date back to 1879.

Paying Rent: Toward the Past and Back For The Future

There is almost nothing to discuss on the rent's timing, or when does a rent payment become due. And everybody knows what to do when the rent is past-due. Yet, there are a few more possible timing problems relevant to the rent obligations: retroactive application of rents, retroactive change of terms, or charging the already left tenants for a loss of future rent. While these problems were litigated over, the answers are not always straight-forward:

e-Filing comes to San Francisco, hopefully without Jim Crow laws

Filing court papers online (termed as "e-filing") is a very useful feature. It was implemented already 10 years ago in the Federal courts, through the so called ECF/Pacer system. The efficiency of ECF/Pacer was recently put on the test, during the Federal Government's shutdown, allowing the courts to remain functional. In his address to the bar, Chief Judge Jaroslovsky commented that he would be writing a much different letter, should no eFiling system be in place at the time of the government's closure.

[UPDATE 11-5-14] 3 vendors are finally approved for the SF Court, in addition to the previously approved sole provider "File & Serve Xpress." Given the e-filing becomes mandatory in this court starting December 8, it's about time to get the providers on board.

[UPDATE 7-24-14] The voluntary e-filing became available on almost all kinds of cases, and I have personally successfully filed my first document through this system today.

[UPDATE 1-27-14] The "mandatory" e-filing is changed to "voluntary," while the second provider is getting up and running. New estimate for mandatory e-filing's cut-off date is June 30, 2014.

[UPDATE 1-6-14] San Francisco Court moves forward with one vendor and announces an additional vendor selected "through a competitive process." Competitor's name is not yet disclosed. Expansion of the mandatory e-filing kicks in on January 27, 2014.

Mandatory Health Exchange Notice - Where A California Employer Can Look For Help

It is a sad coincidence that the deadline of one event (federal budget) matched with the date when another event started rolling out (Health Care Reform). It is even sadder if the two events are related and the impasse on one may get the other stuck in its opening gates. It is for politicians to wrestle in search of a compromise; meanwhile, the law's one of the initial stages came into force, people are enrolling, and the California Employer is now mandated* to give employees a certain notice about health exchange. Where can one look for tips and hints, or, better, for suggestions on the notice's form? I have assembled here what I was able to find so far:

Federal Courts Will Remain Open During Shutdown

I just started wondering today, what would happen procedurally with the cases pending before the Federal courts during the Shutdown, when I received an email from our District's Bankruptcy Court, stating that "[t]he federal Judiciary will remain open for business for approximately the next 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance." This arrived at 9:30 A.M. and I couldn't stop myself from imagining scenarios, what would happen to the cases and whether it can be used to my clients' advantage. I felt half-worried half-excited approaching the Unknown.

Monthly Rent: When Is It Due And When Is It Late?

The most typical arrangement for the monthly rent payments is to be due on the 1st day of the month. This is probably how 99% of all landlord-tenant relationships operate. But is it required to be due on the first? Or, at least, is it so implied? And next question we might ask, once the due date is defined, when does the rent becomes late? This post will provide you with some hints on the subject.

Ghostwriting in Federal Courts in California - allowed, disfavored, or banned?

Attorney's ghostwriting, a practice for an attorney to draft documents for client's submission in court without revealing who actually wrote the documents, becomes more and more acceptable as a form of practice and is now generally allowed in California (Cal. R. of Ct., Rs 3.36, 3.37), subject to some reasonable ethical considerations. If you ask BAR for an advice, they would refer you to Los Angeles Bar Association's publications on the subject, such as this one from 1999 and a fresh 2012 update. Yet, the view on ghostwriting practice in the Federal courts of this same state remains unsettled.

Moving-in the Subtenants: Sensitive Time Limits under the Rules 6.15A and 6.15B

The San Francisco Rent Board's Rules 6.15A and 6.15B look alike in many aspects, yet they provide for different time limits. These differences should not be overlooked.

In Leasing an "In-Law" Apartment Don't Be "In Pari Delicto" - Beware of an Exception for Legal Enforcement of Illegal Contracts

Leasing an "unwarranted" unit contains inherent risks: recent court cases often treat such lease agreements as illegal contracts, a finding leading to a set of scary, but possible discussions, ranging from such lease being simply unenforceable to a claim for restitution of back rents. A question then naturally arises, what can be done with an illegal contract, and are there any exceptions or conditions for its enforcement. The basic rule is that the contracting parties are both "in pari delicto" and neither can enforce the contract or recover therefrom. There is, however, an exception developed in California, which still lets one side to such allegedly illegal contract to recover from the other. An exception itself is not new, but its application to "illegal" leases developed more recently.

Update 03-07-14: San Francisco pilot program for legalizing in-law apartments got approved at the Planning Commission level.
Update 04-07-14: Board of Supervisors approves the pilot program
Update 02-21-16: Decision in Chen v Kraft invalidated a lease with an unlawful object, under CC § 1598.

New Condo Conversion Ordinance

The famous condo conversion lottery is now suspended, and there are new rules now governing the process. The San Francisco Board of Supervisors adopted changes and amendments to the SF Subdivision Code, Sections 1396, 1396.4, and 1396.5. You can read a final version of the Ordinance No. 117-13 here.

F. Lee Bailey is coming back

I was preparing a post on language tools, when I thought of F. Lee Bailey. A quote from his book "To Be a Trial Lawyer" will be a great opener for the subject. I searched for the links and found out that he was actually disbarred for several years and just recently (June 2013) got his clearance to practice law again.

A Case For July 4

I came across a good case to present for the July 4: Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992). I was looking to find a case describing past presidents, seeing if any decision reflected the fact that three presidents died on that day. I found this case instead, and, although it does not directly relate to July 4th, it has all the elements of a rightly fitting case for the occasion.

More on LLC's Personhood

A couple of recent cases, issued within a week of each other, touched on the subject of entity's personhood, seemingly from two opposite sides of the problem.

Not So Hard a Deadline On Posting Jury Fees

Since I've learned this rule, I always lived under an impression that the deadline to post jury fees is a "hard" deadline: one who misses it, deemed waived her/his right to a jury trial. (Cal. Code Civ. Proc., § 631(f)(5)*). When the rule was amended in the middle of 2012, some pending cases got caught mid-way with the change, leading to unexpected quirks in the local procedure. This recent decision may become handy for arguing failures to post jury fees under the new version of CCP 631.

$1.7 million default judgment is possible, even after a 473(b) motion.

Obtaining a default judgment is not easy. And if the judgment debtor later moves to set default and a judgment aside, especially if done on "mandatory" grounds of attorney's mistake [CCP 473(b)], courts often read it as equally a mandatory requirement to grant the requested relief. Often, but not always. This recent case presents a rare situation, when a simple act of submitting a declaration with an acknowledgement of fault did not help. The case is even more unique because of its facts: the judgment at stake was for a significant amount of $1.7 million, and the party asking to set it aside submitted not one, but several declarations regarding its attorney's fault.

Involuntary Un-Servitude

There is a recent move in the State of New York to increase the age limit for judges, to allow them to serve beyond the currently imposed 70 years. New York Times' article states that there are more than 30 states, plus D.C., that have an age limit on jurists. I found the article very interesting: it gives a reader a broad set of facts and, at least to me, feels like an exam set, inviting to "discuss this" and spot possible issues. I came up with these:

Verification on behalf of a dissolved or non-existent corporation

Can a non-existent or a dissolved corporation verify its discovery responses? Even if there is no human agent or officer left around? Court in a recent decision in Melendrez v. Los Angeles Sup. Ct. (In re: Special Electric Co.), 215 Cal.App.4th 1343 (2013), says "yes" and comes up with no less than three alternative solutions.

The Time Has Come to Abolish the Slave Law

Slavery was abolished with the passage of 13th Amendment in 1865, and now, with the State of Mississippi completing formalities of filing their ratification this year, it seems fully and universally approved, nationwide. It should be only logical that the "slave law," a body of pre-Amendment court decisions regarding slavery aspects, would become outlawed just as its subject did, instantaneously with it. I was surprised to find out that it didn't. Majority of the slave cases are still marked as "good law." Many of them are cited in decisions made decades after the Amendment. Some are even recognized authority in up-to-date treatises. I think this is an important issue, worthy of our attention, something we should, and now can, fix.

Passing the BAR Exam. Tips I Still Remember.

This weekend, the results for California February 2013 Bar Exam came out. The news reminded me of my own experience with this formidable exercise and I decided to "reduce to writing" what, in my opinion, were for me the most important tips for winning this game.

Affirmanti, non neganti, incumbit probatio

AFFIRMANTI, NON NEGANTI, INCUMBIT PROBATIO
a more common form: Ei incumbit probatio qui dicit, non qui negat

Meaning: The proof lies upon one who affirms, not upon one who denies.

The maxim provides a rule in establishing a presumption of who initially carries the burden of proof. This is a deep-rooted and well known maxim, mentioned in the Blackstone's Commentaries (Book 3, p.366 (1791)) as one established both in common and civil laws. It appears to be a part of the Justinian I's Corpus Juris Civilis (Digest book*), completed in 533 A.D. And even there, it is referred as "A maxim of Paulus," enforced by the Emperor Pius' rescript. Its full cite and a detailed account are given here.

Books to read

If you have ever scanned through biographies of successful figures in legal profession, you could not miss a similar element in their upbringing. It is a very basic, foundational element: their education. Being educated is not the whole recipe, but is an unavoidable ingredient for success in a "learned" profession. This necessity, traditionally, is a costly one, and a large share of the costs fell on books.

From Cicero's times, "books, like works of art, were expensive." You would think that with the advance of printing technology the prices would drop, yet the textbooks remain extremely expensive today,* and the prices are on the rise. Imagine, how different our history would be, if Thomas Jefferson wouldn't be lucky to inherit his father's library and then get another one from George Wythe. The world will be all so more different if Abraham Lincoln, who "was mostly self-educated and was an avid reader and often sought access to any new books in the village," wouldn't be able to self-educate himself with books.

100 California Appellate Decisions

In order to observe litigation dynamics on the state's appellate level, I took a sample scope of 100 appellate decisions (including ones from the Cal. Supreme Court, but not including Superior Court's Limited Jurisdiction's appeals). Unlike my earlier sample of 100 filed complaints at the trial-court level, which took only 3 days to fulfill, 100 appellate decisions were rendered over a span of approximately a month: my particular scope covered cases from March 26 to April 30, 2013. The results differ, as expected, since there are whole classes of cases regularly commenced in the trial court, but rarely appealed. Yet there are some similarities as well. Here are the particular results, per field:

A lost fight over the lost script for LOST series - an Idea is as free as the air

On April 4, 2013, Second Appellate District issued an opinion in Spinner v. American Broadcasting Companies, Inc., Case No. B239229, coming out, of course, from Los Angeles Superior Court. This is a case regarding a fight over the rights to LOST television series. In its "Facts" section, the court described the inception of the series in great detail, which in itself is an interesting story.

Interest on Security Deposits: State view vs. San Francisco

California's general rule is that the landlord is not required to pay interest on the tenant's security deposit. The return of a residential security deposit is covered by the Cal. Civ. Code, Section 1950.5, and, as the case Korens v. R. W. Zukin Corp., 212 Cal. App. 3d 1054 (1989) indicated, "[a]lthough the subject of security deposits given in connection with the rental of residential properties has been extensively regulated by the legislature, Cal. Civ. Code § 1950.5, no provision of state law imposes the additional requirement that interest be paid on security deposits by landlords."

Burning Man Law

This month, Stuart Banner's book came out, covering courts' treatment of baseball, exempting it from the antitrust law. Reading an article about this book, I sought of another cultural phenomena, the Burning Man festival, and decided to take a look, what impact the festival makes on shaping courts' decisions, what constitutes the Burning Man law. I found six cases, which contributed to a variety of rules.

100 Cases filed in the San Francisco Superior Court

I took a sample of 100 cases filed in the San Francisco Superior Court, to see its litigation dynamics. If another sample will be taken in a future, it will be interesting to compare, like I did with the scoop of 100 California appellate decisions, here. For now, here are my findings:

De Minimis Non Curat Lex

DE MINIMIS NON CURAT LEX

Meaning: The law cares not for trifles.

This maxim may be seen as one of the principles of judicial economy―that the court should not spend its time on trifling matters, or that some trifling details should not divert court's decision on a material point.

How rare an accident may still be "foreseeable"? 1 in 641,025 years.

In a recent strict liability case, Collins v. Navistar, 214 Cal.App.4th 1486 (2013), court held that it is possible for a vehicle manufacturer to foresee an event, with an effective chance of .003―.009 per billion vehicle-miles.

Not Having The Fear of God Before His Eyes: How Long Does It Take to Separate Religion From Indictment? [208+ years]

When I studied the legal maxim "Allegata et Probata" and came across a 1778 case Respublica v. Carlisle, 1 U.S. 35 (1778), it caught my eye that the allegations against the defendant were made with a help of religious reference to God and Devil: "not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil."

The allegation sounded very romantic, but looked suspicious for its place in a middle of an indictment of a serious criminal case. I thought to myself, this smells like an issue of mixing religion with the government, and decided to look closer. Here is what I found:

Vasquez v. Greene Motors - detailed decision re: enforceability of an adhesion contract and its arbirtration clause

On March 27, 2013,  1st Appellate District handed down a decision in Vasquez v. Greene Motors, Case No. A134829. There, Vasquez, a buyer of a used car, was challenging the car's purchase agreement, printed out on a standard form ("553-CA-ARB"), particularly its arbitration clause, arguing that the clause may not be enforced, because it is unconscionable, procedurally and substantially, and is overall one-sided and unfair. This decision contains a few thoughts worth to notice.

Are the decisions of the Confederate courts good law?

When I research on a given rule, I try to look for a chain of decisions as far as it may go. Getting with a well-settled rule past the 20th century and into 18xx-ies' decisions is something happening often and without much of an effort.

Since I practice in California, rule's ancestry beyond 1860s quickly becomes unpredictable: we may have a US Supreme Court's case (lucky!), or it be referred to another state's earlier decision (easy), or to jump a hundred years and quote an earlier UK case (not so easy), or even rely on a Spanish/Mexican rule or tradition (the research stops there for me, almost always). This unpredictable change in time or space makes the search exciting, yet it also made me think, what if the chain gets into a decision held by a Confederate court? Are those decisions "bad law"?

Allegata Et Probata

ALLEGATA ET PROBATA 

Meaning: The things alleged must agree with the things proved.

This rule applies to the proofs presented at trial, holding that such proofs have to be corresponding with what was alleged in the pleadings. Proving a fact not alleged is disallowed as a "variance."
The rule believed to be applied strictly in the Medieval period, but got relaxed in more recent times, so that the presented proofs need only to relate to the allegations. Variances to some immaterial degree become allowed.

Upholding monetary obligations through the times of change - from 1796 to 2001

I had an assignment to find citations to the cases, which deal with the problem of conflicting loan papers: if there is a conflict between a note and a deed of trust, whose terms prevail.

As it usually goes, I went too far with it too soon, quickly finding myself in the 19th century territory. There, I came across a case, Gavinzel v. Crump, 89 U.S. 308 (U.S. 1875). While the case had little to do with my research subject, it caught my eye for its rich story, a real-life adventure (even within the original meaning of the word), where the backdrop was the Civil War, and where two residents of a rebellion state (Virginia) made a deal, one borrowing from another a certain sum in Confederacy notes. The lender then "got out of Richmond and went to Europe; his escape through the rebel lines having been, according to his own account, almost impossible; attended with greater difficulties than anything which he had ever in his life done." (Id. at 5)