Legal-Eaze: Tehachapi News

Legal Eaze

Q: I sold my car to a guy on a Friday night. He wrecked the car two days later and called me for help. He was driving it without insurance and title had not transferred over to him yet. He gave all of my information to the person who hit him. I agreed to help him by making a claim with my own insurance company to help him fix the car. The car was considered a total loss. Now this guy is suing me for his loss. How can I prepare myself for the Small Claims Court hearing?

A: If you were still insured at the time of the incident and there is a claim/lawsuit against you, you should submit the claim/lawsuit to your own insurance company. One of the important duties of an insurance company is to defend their insured in a legal action where their insured and his/her driver are likely to be liable. Otherwise, you may want to consult with a civil litigator long before the hearing, since following some of his/her suggestions may take some time to put into place.

Q: While fighting a custody battle with my ex-wife, I was accused of numerous allegations such as child abuse, spousal abuse, philanderer, etc. While reading a section of California Civil Law, I read that by law, no one is allowed to defame another without evidence. Since no evidence was offered, do I have a civil lawsuit against the Superior Court since the Judge and clerks did not stop her from saying all these lies?

A. It is highly unlikely that you would be successful in such lawsuit. Judges are absolutely immune from suit for acts or omissions committed in their judicial capacity. As for the clerks in the courthouse, they have no power to stop a person from saying whatever he/she wants in the courtroom or courthouse.

Q: I found finger and/or toenail clippings in my Del Monte chili. What can I do?

A. Throw it away and never buy Del Monte products again. Or call Del Monte company and complain. They'll probably send you a flat of Del Monte chili cans to replace the first one. Go back to the store where you bought and demand your money back. If you are thinking “Who can I sue to get damages?” you will have to prove what damages you suffered as a result of this find. If you did not suffer extensively from “gag-eritis”, it is unlikely that your lawsuit would be successful.

Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at 825-8880 or e-mail your questions or comments to http://www.generalaw.com She will answer your questions to the best of her abilities.

Legal Eaze

Q. I rented a car recently. Because I was working when the car was due for return, I asked my brother to return it for me. My brother wrecked the car on the way to the rental car office. Now, I owe a lot of money. What do I do?

A. It depends on the rental contract you signed. If you had to name the authorized drivers when you entered into the rental contract, and your brother was not one of them, yet you let him drive the car back to return it, then it is your responsibility to pay for the damages. If you had insurance on the rental car, then let the insurance pay. If you had no insurance to protect you from this kind of occurrence, then shame on you.

Q. If I have a living trust prepared for me, do I still need a will?

A. Yes, it is called a “pour-over will” and is usually part of a Trust package. The pour-over will is a catch-all document, that will “catch” any assets you forgot or failed to transfer to the trust. Sometimes, an asset worth a substantial amount of money has not been transferred, and if the asset is worth over $100,000, the threshold amount to necessitate that a Probate case be opened in Court, hence it is a good idea to have a Pour-over will drafted so as to make your wishes known with regards to your un-transferred assets.

Q. Will checking my own credit report appear on the credit report as an inquiry for credit?

A. No. New credit applications will appear as an inquiry, but you have the right to verify all credit report entries to ensure they are accurate. Your own verification will not be used as an inquiry for credit. In fact, most credit card companies check your credit report every month. These checks are not reported as credit inquiries. Only new applications for credit are counted.

Q. When does a Power of Attorney for Medical Care go into effect, and how long it is effective?

A. It depends on how the POA was drafted. Most of them become effective when one or two physicians declare you incompetent. Some of them become effective on the date they are signed. If you do not wish a POA to be effective upon signature, then you need to make sure the POA contains a clause that only makes it effective upon your incapacity for making medical decisions about yourself, and are nul and void upon your recovery.

Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880

Legal Eaze

Q. I received a book in the mail that I did not order. The box had printing on it describing the contents as a free gift. There was no bill enclosed, therefore I assumed it was indeed a free gift. I just received a bill for $36. Do I have to pay for a “free” book or waste an hour of my time waiting in line at the post office to return a book I did not order?

A. You do not have to pay nor do you have to return the book and pay for postage out of your own pocket to return something you did not order. I hope you kept the box as well as the bill. I would write a letter to the sender stating exactly that: you will not pay for this book because you did not order it, and because you thought it was a gift, nor will you pay for postage to return it.

Q. Is there a statute of limitations on collection of debts?

A. Yes there is. If the debt was incurred as a result of a written contract, the statute of limitations is four years. If the debt was made orally, the statute is two years. Very often, some collection agencies will buy debt in bulk for a couple of pennies on the dollar owed and will then attempt to collect on the debt. Sometimes, the debt is 10 to 15 years old. The collectors can really harass people, calling them at all times of day and night, calling at work, despite laws that protect from this kind of harassment. Often, the debtors don't know any better and pay the debt. The statute of limitations will protect the debtors, but the collection agency can place a derogatory note on the debtor's credit report. If that happens, it falls upon the debtor to respond and ask the credit reporting agency to put a note written by the debtor explaining why that particular debt has not been paid. If the debt is older than 10 years, the credit reporting agency cannot still report it. Even when a debtor files for bankruptcy, the debts unpaid due to a bankruptcy cannot be reported for longer than 10 years.

Q. If older people with families from previous marriages get married, how do they each protect what they want to leave to their own children or grandchildren?

A. By setting up a Joint Revocable Living Trust. When one spouse dies, that spouse's half of the trust becomes irrevocable, and whatever assets are in it will get transferred to the intended beneficiaries.

Legal Eaze

This is a re-visitation of my last column with regards to the question about how one can smoke medical marijuana in one's apartment without incurring the wrath of the landlord or neighbors. I received a very instructive email from an enlightened reader who suggested that a person with a prescription for medical marijuana find another method of getting it into his/her system, i.e. nebulizer, cookies, brownies, honey, breath strips and even ointments would not only be excellent alternate methods, but in fact healthier. A reputable marijuana dispensary would probably carry all of the above-mentioned products.

Q: What should I know in order to win my Small Claims Court case?

A: Get to court on time, or even a little early. Have your case and evidence organized. The story of your case should be told in a chronological order, and your argument should be short and concise. Have your documentation in triplicate (one for the judge, one for opposing party and the last one for you to refer to). Use a highlighter to draw attention to relevant portions of your documents. Dress and behave appropriately. Practice your argument (practice makes perfect). Bring a witness willing to testify on your behalf. A live witness is better than a signed statement by that witness. It is difficult to cross-examine a written statement. Wait until the judge tells you it's your turn to speak. Do not interrupt the other party. You will be given an opportunity to respond, just be patient. Be reasonable. Judges have to listen to many people who think they are right all day long. Being reasonable will make you stand out, and eventually might win the judge's favor, and by the same token, your case.

Q: I am hesitant to file my taxes because I owe money and I can't pay it right now. Should I withhold from filing my taxes until I have the money to pay?

A. No, file your tax return or extension on time, even if you do not have the money to pay the taxes due. The penalty for failure to file your return on time is 5 percent of the amount owed for each month the return is late to a maximum of 25 percent. Save yourself a significant amount of money by simply filing your return on time. You can negotiate a payment plan to pay your taxes over several months, or make an Offer in Compromise. This is when you pay a lump sum to the IRS to resolve all outstanding taxes owed. This occurs when you are simply unable to pay back taxes. Such an offer can be made for a percentage of what you owe. Procrastination can only result in penalties and interest being assessed against you.

Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or email maxinedev@msn.com. She will answer your questions to the best of her abilities.

Legal-eaze

Q. I have a physician's prescription for the use of medical marijuana to ease the back pain I constantly experience after undergoing several back surgeries. I live in an apartment and I fear that the management will eventually evict me for smoking it in my apartment. Already my immediate neighbors have complained that they can smell marijuana right through our common walls. What can I do to protect myself against a potential eviction?

A. Honestly, I cannot answer your question because the courts have not yet addressed your situation. The Compassionate Use Act of 1996 (California law addressing the lawful use of medical marijuana) has been narrowly interpreted to protect the lawful use of medical marijuana only against criminal prosecution from the state. The problem is that the federal government still considers the possession and cultivation of marijuana to be illegal under all circumstances. This means you can still be arrested and prosecuted by federal authorities acting within the state. A state court has addressed the situation wherein a computer technician who failed a drug test administered by his employer, despite the fact that he presented a copy of his prescription with the failed drug test results. He claimed that he smoked on his own time and that it helped him better perform on the job. He was nevertheless fired. The court sided with the employer. In your case, it could go either way, but if a lawful user cannot smoke in his/her own home, then where can he/she? If your landlord attempts to evict you, you might become the test case on this issue.

Q. Is it legal for me to use my cell phone while I am driving?

A. In California, it still is, although not for long. As of July 2008, you will no longer be permitted to use a hand-held type of cell phone while driving. You will still be permitted to use a hands-free “speakerphone” type set up for cell phone calls as long as you have both hands on the steering wheel. There have been thousands of accidents due to cell phone usage while driving all over the country. As a result, various jurisdictions took a position that no use of hand-held cell phones while driving is safe use.

Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office, as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to 825-8880.

Legal Eaze

Q. I was driving on a rural road and I hit a patch of ice, ending up in someone's fence. I damaged the fence so much that the cattle in the field could easily get out through the hole in the fence and spill out onto the road. What if someone hits the cattle, am I responsible for the ensuing damage?

A. Yes, you are responsible if the fence is not repaired as soon as possible and the cattle does get out and cause an accident. You will also be responsible for lost cattle, for the repair of the fence and anything else that happens as a result of your mishap. Those are the reasons why you must carry insurance. Of course, aside from your insurance company, you must also notify the property owner that you damaged his fence so that he can take the steps necessary to reign in his cattle. You must ensure that you do everything in your power to repair the damage you caused as soon as possible so as to not compound the consequences of your actions. The less consequences will cost less.

Q. My neighbor has a very big tree right between our houses. With all the snow we've had in the past week, a branch from the tree broke and fell on my garage. Not only is the roof of my garage damaged, I can't use my garage at all right now because the garage door won't open and close due to the damaged roof. The roof is hanging down, stopping the door from moving up or down. My neighbor does not live in that house during the winter. He lives somewhere in Los Angeles but I don't have his phone number and I don't know how to reach him. What do I do?

A. Now you understand why one should always get along with the neighbors and know how to reach them should something bad happens. First, call your insurance company. They will take the steps necessary to find out who owns the house next door, and get in touch with the owner, wherever he/she lives. Your insurance will subrogate the claim, i.e. make a claim against your neighbor's insurance because it is your neighbor's responsibility to take care of his property all year round, not just during the summer. It is difficult to deal with an owner in absentia, but not impossible. Good luck!

Legal Eaze

Q. I purchased several Christmas gifts online to be shipped to my sister's kids in New York. I ordered the gifts at the beginning of December. I just received my credit card bill and the same gifts were billed on my card twice. I called the online company but I am being given the total runaround. What should I do?

A. You need to call your credit card company and file a complaint. Then you need to write a letter to the company you ordered the gifts from and put your complaint in writing. Make sure you address your letter to the President or CEO of the company, and send it by registered or certified mail. Keep a copy of your letter. I would suggest that you mention you will contact the attorney general of the company's state if you do not obtain a satisfactory result. If you haven't received a reply within a reasonable time (give it a month), then contact the attorney general of the state in which the company is located and file a complaint with the attorney general. Not only can you get the information online, but with most attorney general's offices, you can file the complaint online.

Q. I was sued in Superior Court. I filed a cross-complaint at the beginning of December and served it on the attorney. I have yet to receive an answer to my cross-complaint. Isn't the “answer” time barred by now?

A. Typically, a cross-complaint has to be served on the party himself, unless the attorney informs you that he had permission to be served on behalf of his client. A cross-complaint must be answered 30 days after it was served, the same timeframe as a regular complaint. You should call this attorney and find out if it is was permissible to serve the attorney rather than the attorney's client. Not every attorney is retained to file a lawsuit on behalf of a client, and to represent him as a cross-defendant as well. If the attorney tells you that he cannot accept service on behalf of the client, then you have to serve the cross-complaint on the cross-defendant. Hire a process server or a sheriff to do that. Even better, hire an attorney so that the entire lawsuit can be handled properly.

Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to 825-8880

Legal Eaze

Q. My boyfriend of 7 years and I bought two adjoining properties in Los Angeles County. The house was built on my side. Utilities were installed on my side, but are connected to his side to operate machinery, and provide water and electricity to various out buildings he installed on his side. He died 2 years ago. He left no will. Now his mother wants to take over and take away out buildings, and various items that we purchased together but located on his side. Do I have any rights?

A. If I understand you correctly, your boyfriend died intestate. This means all of his assets will be distributed according to intestate laws. If he has no children, his assets will go to his parents, if they are still alive. If not, next his assets will go to his brothers and sisters and/or aunts and uncles, then grandparents and nieces and nephews. Since you were not married to him, you have no rights to his assets, however if you can prove that you participated in the purchase of the items being taken away by your boyfriend's mother, such as having receipts in your possession, then you can claim ownership of these items. If you do not have any proof that you participated in the purchase of the items, and they are located on his side, then they belong to his heirs and not you. This is why it is so important to have at least a will drafted so that your assets will be distributed to the people you decide should inherit them rather than the persons the state of California decide should get them.

Q. I represent myself in my own divorce and hired a paralegal to fill out all the paperwork to be filed in court. Come to find out that the paperwork was filled out incorrectly and now my divorce has turned into a nightmare. What do I do now?

A. Hire an attorney to represent you. All is not lost. Legal paperwork can be amended. Paralegals are not attorneys and they cannot practice law. Many are quite knowledgeable and can do wonders with the court paperwork, but not all. Unfortunately, paralegals do not have to answer to the California State Bar and cannot be sued for malpractice. It is true that attorneys charge more for their services, but rightfully so. They do answer to the California State Bar and can be sued for malpractice.

I wish all of my readers to have good cheer, good food and good company for very Happy and Safe Holidays.

Maxine de Villefranche is an attorney and civil general practitioner with 15 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to 825-8880

Legal Eaze

Q. I have a neighbor who leaves his three dogs alone in his house for days at a time. I don't believe these dogs are fed or given sufficient water during the time that he is gone. The dogs are very skinny, their ribs are showing and the house smells very bad during the summer when the windows are open. I feel terrible about these animals not being taken care of properly. What can I do?

A. Lately, Kern County has seen more than its share of animal abuse cases. You can call the Animal Regulation inspector and this owner will be cited, if indeed, his animals are abused. Not feeding your animals and not providing sufficient water is a form of abuse. Obviously, the dogs are relieving themselves in the house because they have no place else to go, hence the bad smell emanating from the house. However, if the dogs have no food and water, the house should not smell so bad since they would not be relieving themselves because they would have nothing to relieve themselves of. Kern County's Dept. of Animal Regulation, despite its officers' over the top reaction in certain cases, is a fairly efficient organization. They respond quickly to complaints or reports of abuse. If necessary, your neighbor's dogs will be taken away from him if the abuse continues. It will be investigated thoroughly, you can be sure of that. Thank you for your concerns about helpless animals.

Q. I live in Stallion Springs and I take the 202 to go home every night around 6:30 p.m. Now that it is dark so early, I see people walking along the 202 in the dark, with dark clothes on. What if I hit someone and I did not see that person until the accident occurs. What will happen?

A. When you are driving a car, you must be ready for any and all conditions on the road. You might bear some responsibility for the accident depending on the conditions at the scene of the accident. Obviously an investigation would need to be conducted by the police to ascertain whether the pedestrian was at fault. A pedestrian has a duty of due care and must take precautions to avoid an accident. There are numerous statutes and municipal ordinances that provide guidance with regards to this. Violation of a statute or ordinance is evidence of negligence in virtually every jurisdiction. If the law is in your favor, the more power to you.

Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880

Legal Eaze

Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?

A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada's jurisdiction, hence a California court ended up with the case.

Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?

A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer's bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send questions via fax at 825-8880 or email maxinedev@msn.com. She will answer your questions to the best of her abilities.

Legal Eaze

Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her three times but were unsuccessful. Now they want to charge me more to serve her. What do I do?

A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physically service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife's location.

Q: Is it possible to overturn a judgment of full custody?

A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party's attorney's fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.

Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?

A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.

Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at 825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.

Legal Eaze

Q. What is the statue of Limitations?

A. The word is spelled “statute” rather than “statue”. A Statute of Limitations is a law setting forth the maximum period of time after certain events have occurred for legal proceedings based on these events to begin. In many law systems, these legal provisions are part of the civil code or criminal code. For example, in our common law system, we might have a statute limiting prosecution of misdemeanor crimes to two years. In other words, if someone is discovered to have committed a misdemeanor offense five years ago, he or she cannot be prosecuted for it because the Statute of Limitations has run on that offense. The same goes for a civil case. If you have a car accident caused by someone else, you have only a certain period of time to sue that other person for any injuries or damages you suffered. The period of time you have to file a lawsuit is called the Statute of Limitations.

Q. Do you have to be an American citizen to file a Small Claims Court action?

A. No. No one will check your citizenship or immigration status to file a claim.

Q. I was personally served with an Order of Examination prepared by a lawyer to appear in Court. I just started a new job and if I take the day off to go to Court, I might lose my job. This is about an old debt that I have been unable to pay because of my unemployment. What happens if I don't go?

A. The Court will issue a warrant for your arrest. It is a Court order and you must obey it. You need to inform your new employer that you must appear for the examination and that you do not have a choice in the matter. If you do not appear, you will eventually get arrested and brought to Court by the police.

Q. Just before our separation, my husband added my name to the home loan to help build up my credit. Now he refuses to pay the mortgage and just wants the house to be foreclosed on. I am living with my parents now, and cannot afford to pay the mortgage. What can I do?

A. You need to file an Ex-Parte Motion with the Court in your divorce action to force your husband to pay the mortgage. Time is of essence. The family residence is a community asset, and if there is equity in the house, it must be preserved in order to divide that equity fairly between the parties. Your husband's actions are unfair and selfish.

Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880.

Legal Eaze

Q. Other than forfeiting an earnest money deposit, is there a penalty for canceling a real estate purchase contract?

A. It depends on the contract. If the purchase contract was accepted by the seller, escrow was opened, the seller may file a lawsuit for specific performance, specially if the real estate market is in a downward mode and the seller would lose money by having to put the property back on the market and sell it at a reduced price. Time is often of essence in a real estate sale and obviously a lot of time, and profits can be lost when the seller loses several months in paying a mortgage on real estate that did not sell quickly. The penalty would be attorney's fees in defending a lawsuit for specific performance, not to mention the Court can force you to buy the property if you lose the suit.

Q. Can I remove myself from a mortgage that I had with my mother when she bought her house? I now want to buy my own house, but I cannot qualify because I am still on the hook for the mortgage on my mother's house.

A. You cannot remove yourself from a mortgage unless the mortgage holder consents or the mortgage is paid off. Typically, this scenario occurs in a marriage that ends up in divorce. But since this is a deal you made with your mother, you cannot “divorce” her. I would approach the subject with your mother and see if she is in a position to refinance her house without your financial backing.

Q. I rented a house with an agreement to rent to own. There are numerous problems with this house. The roof was leaking. I got it fixed. The toilet in the basement was leaking. I got it fixed. The support beams are all crooked, and major repairs need to be done. I had this house appraised, and it is worth $50,000 less than what the owner is asking for it. I have got to get out of this “rent to own” agreement. Can I?

A. It really depends on the terms of the contract you entered into. You may have to let go of the equity you built in the house. However, you may be entitled to recover the cost of the repairs and improvements you made to the house, however you need to document the costs of the repairs and improvements.

Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661) 825-8880

Legal Eaze

Q. My brother bought a “roach coach” business. He paid good money for three trucks, the routes and included a no-compete clause so that the company he bought the business from would not get back into the same business within five years from the sale. That business is now back in business, operating on the same routes that were sold to my brother only two years ago, and taking business away from my brother. What should he do?

A. I believe your brother should sue that company. Usually non-competition clauses are enforceable as long as they are not overly restrictive. For example, not permitting the operators of that company to re-open in the same area the business was previously operating simply protects your brother's investment in purchasing the company. The enforcement of non-compete clauses in business-sale contracts depends upon the notion that part of what the buyer is paying for is the goodwill of the business (defined as the expectation of future public patronage) and by competing, the seller is unfairly undermining the value of the goodwill for which he was paid. Here your facts make it clear that part of what your brother bought and paid for was “the route”, and if the seller is going after his old customers on the route, that would violate a typical non-compete clause and could be the basis for a successful lawsuit.

Q. One of my co-workers took off a half day last week. He made it up this week. He was then told by our supervisor that because he failed to notify him of the switch, he would not only be docked for the time he missed, but would also not be credited for the made-up time. Is this legal?

A. The employer must live up to its agreement with the employees when a worker needs time off. The contract covering a particular pay or benefits provision does not necessarily have to be written down. However, if there is a written policy, a past practice, a general understanding, that alone may be deemed to be the contract between the parties as to that particular practice. Hence, a particular practice will generally not be against the law most of the time, but failure to honor a practice in an arbitrary or discriminatory manner is likely to be a breach of contract, a civil wrong addressable not through the Labor Commission but through a private lawsuit.

Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to 825-8880.

Legal Eaze

Q: There are an awful lot of products being recalled. Why is this happening so much nowdays?

A company is recalling a product because principals of the company discovered some safety issue with the product being recalled. It is basically an effort to limit liability for corporate negligence, to avoid costly legal penalties imposed by some government agency overseeing the type of products being manufactured and to curb bad publicity. Of course, this can be very costly because it often entails replacing the recalled product or paying for damages caused by using the product in question.

United States has specific requirements in regard to product recalls. Safety-related recalls can be voluntarily initiated by the manufacturer, or made compulsory by a government agency if the risk is significant to consumers and if it is in the consumer's best interest. Lately, we've had a recall on food items produced in Northern California. These food items had to be recalled because not only did they caused death, but also caused hundreds of people to become violently ill from consuming the food. Recalls of cars, tires, children toys and canned food are common. We must return any items which are the subject of a recall immediately. There will be reimbursement of the money paid to buy the product by the store or the manufacturer.

Q. I believe there is toxic mold or mildew in my brand new house. My children are suffering from various illnesses because of it. I have complained about it to the builder, but nothing is being done about it. I think the house was insufficiently covered when it rained last winter during the construction phase and now mold is present in the attic and growing. What can I do?

A. Molds are ubiquitous in nature, and mold spores are a common component of household dust. The term toxic mold is sometimes used to refer to mold-related indoor air quality problems. Exposure to significant quantities of mold spores can cause allergic reactions. Some species of molds can be toxic to humans or animals.

You should contact a company specialized in conducting mold inspections. If toxic mold is found, send the report to the builder. The builder may be responsible if you are still within your warranty period, or even outside it, depending on what caused the toxic mold, if any. A lawsuit may be in order if the builder continues to ignore your plea for help.

Maxine de Villefranche has been an attorney for 14 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at 825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.