The "Educators" Ordinance Is Back

Today the court of appeals reversed in full its 2016 judgment, which up until today was holding the "educators" ordinance on hold. There is a hope that the certiorari review will follow, but, as of now, the ugly and self-contradicting piece is coming back on the books. And I mean it literally as well, I'll have to update the book again (only in this case, downgrade it back).

"Educators" ban on evictions is gone, no longer

[02-14-2018: Court of appeals reversed the judgment];
[Cal. Sup. Ct. denied review on April 25, 2018; Rent Ordinance reinstated back the "educators" ordinance's language on May 15, 2018, see the press release here].

On September 28, 2016, the San Francisco court adjudged the writ of mandate granted on August 31, invalidating the infamous ordinance of last year, which was injecting a new type of a protected tenant, the "educators." That the new limitation was overbroad and unnecessary wide, both as to covering categories of tenants, and in including previously unheard-of amount of types of evictions (even the temporary move-out for repairs)—all that I have already had an opportunity to cover in my earlier post. Thus, the Court's decision, invalidating the ordinance, was not a surprise to me.

What is surprising is how the Court arrived to invalidating this ordinance. This path seems to me worth our attention, to make a mental note in case of a similar argument in the future.

Disability As Criminal Defense

This post covers how some well known concepts of criminal defense in California can be made in the context of a disabled defendant. There is nothing new in the rules, yet the recent case, People v. Gana, provides some more detail and guidelines on application.

Security Deposit - Held In Trust Or Not?

It is an understandable to assume that, when you entrust someone with your money, to hold and use only under certain conditions, and to return the money back to you when/if those conditions don't apply, the money are held by someone in trust for you (Dillon v. Cross (1907) 5 Cal.App. 766; Spencer v. Duncan (1895) 107 Cal. 423), or as a bailee (Niiya v. Goto (1960, Cal App 2d Dist) 181 Cal. App. 2d 682; CC § 1814).

Not so with the security deposits. The court in Korens v. R. W. Zukin Corp. (1989) 212 Cal.App.3d 1054, ruled that the money held by the landlords as security deposits create a debtor-creditor relationship, but are not held in trust, citing in support CC § 1950.5(d). (Id. at 1058-1059). Is the Korens Rule absolute? As it is with many legal concepts,  the answer is "it depends."

Stealthy Amendment to The Rent Ordinance

Some amendments pass while being widely covered in the news, but not this one. It was not even announced in the "What's New" section of the Rent Board. And yet it did pass and will become effective in a couple of weeks, Ordinance 0017-16.
[Update 3-22-16] - The new form is now available for download and the news announcement is published]

This ordinance is a very short piece, but the changes it enacts should not be overlooked; indeed, that is the very danger of unknown changes in legislature, since ignorantia juris non excusat,* an ancient maxim apparently known since Aristotle. If you are like me, and had no idea about the changes coming, you might be interested in this summary below:

Waiver Defense Becomes Available To Landlords

Interpreting a lease agreement under the latest court decisions will be much different from the rules accepted among practitioners even a year ago. It seems the changes are now coming down almost every week, and the latest one is a rare specimen: Chen v. Kraft (2016) 243 Cal.App.4th Supp. 13. It holds, among other findings, that a landlord may not waive a prohibition against illegal use of the property, even if a landlord were to enter into a written agreement expressly permitting such use.

New practice of S.F. tax assessor requesting extensive info

A new practice of assessing the property tax gains speed in San Francisco. No longer it is enough to report your sale's price to establish the new value. Instead, new owners now receive a letter like this from the San Francisco Tax Assessor Office. It asks the new buyer about a lot of additional information, even some that buyer may not even know, such as future rent values. What a buyer to do?

Dog Law

Dogs are in the spotlight lately. Governor Brown has recently signed into law a new act allowing statewide access for dogs in restaurants. There is also an ongoing debate of a too flexible and uncontrollable approach of "service animals," proliferating in great numbers, especially in San Francisco, who are often confused with rigorously trained guide dogs. San Francisco also now amended its Health Code, by adding Article 39, which codified a "commercial dog walker," which is in effect since April 21, 2013. How all these developments affect the landlord-tenant relationship?

Employer's Bond To Appeal Labor Commissioner's Decisions - Mandatory or Not?

Not everyone works a 4-hour workweek, but all those who work some finite periods of time may wonder, when does the time worked starts counting toward the overtime. In California, a straightforward response would be, after 8 hours per day or after 40 hours per week. But not everything is straightforward, and the overtime may come sooner just as well as it may come later in the workday or workweek. In other words, "it depends."

When Overtime May Be Due Over A Shorter (Longer) Time?

Not everyone works a 4-hour workweek, but all those who work some finite periods of time may wonder, when does the time worked starts counting toward the overtime. In California, a straightforward response would be, after 8 hours per day or after 40 hours per week. But not everything is straightforward, and the overtime may come sooner just as well as it may come later in the workday or workweek. In other words, "it depends."

Rescind, Surrender, And Cancel. Courts' Handling Of Leases.

I recently had to ask a clerk of the San Francisco Superior Court to enter a default judgment "for possession only" in an eviction case. The procedure does not require many steps to comply with, but this time I talked the details over with the clerk, and left very glad that I did, because I accidentally discovered that the SF Court follows an ancient tradition of physically canceling an original instrument, the lease agreement.

Similarities Between Landlord-Tenant and Employer-Employee Relationships

Since I primarily practice litigation in these two fields, real property and labor law, it has caught my eye that the rights and obligations of the parties in rental and employment contexts have many similarities. To see just a few, consider the holdings I highlighted in this post.

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.

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.

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.

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.