Fish Tank

Sunday, January 25, 2015

Wipe it clean

YOU are under arrest
Picture it.  You're sitting by yourself in your car listening to a classical radio station.  No drugs (are present), you are wide awake, and all of a sudden a dozen police officers come out of nowhere, guns drawn and demand that you exit your vehicle (happens more often than you might think).  Anyway, not wanting to make a scene, you comply and are promptly thrown to the ground and handcuffed.  No "howdi do?" or anything - just asphalt to the face and cuffed.

Next day (after sitting in jail all night) you are released.  No charges, no prosecution.  Problem is, there is a record of your arrest on file somewhere so when next you are out looking for a job and the application says, "have you ever been arrested?" you have to say "YES" because if you say "NO" and the potential employer does a background check, out of a job you are.  

So, to summarize: 

  • You were arrested
  • No charges were ever filed and
  • You now have an arrest record

The question is what can you do to remove that record of an arrest from your record?  First, some history. A while back, a Librarian friend of mine who worked in a law firm in the great of Georgia (that's state, not country) was representing someone who had been arrested but never charged in California.  They needed to know how to clean-up his record.  After a few phone calls and not a few emails, I finally hooked up with a fellow at the California Attorney General's Office and he tells me the only way to clean a record (where no charges were brought) is to file a Petition to Seal and Destroy under California Penal Code section 851.8.  

Basically, you need to complete the petition and file it in the jurisdiction where you were arrested. The single best resource I have found that covers all parts of that petition (which includes the petition, declaration, points and authorities, order) is in California Criminal Practice, Motions, Jury Instructions and Sentencing (West; Vol. 5, Ch. 60). 

Yep, life in the legal world can get pretty funky.  Good thing you have county law Librarians who are in the know and know where you can the legal resources you you need to get you back on your feet.

Sunday, January 18, 2015

It's a Trap!

You get what you pay forA problem with the Internet age is that people seem to think that if they can't find it on Google.com, then it isn't worth using or that everything found on Google is the bee's knees of information.  Darn near every day I have someone who asks, "Isn't everything (that everyone wants) online for free?"  Short answer: no, it isn't and the problem with this mindset is that, as with most things, you get what you pay for.

Too often I have people coming up to me complaining that the judge tossed out another of their legal documents because it was "wrong" because they relied on free stuff they scrounged up on the Internet. "WHAT is the court's problem!?" they'll scream.  I'm sorry to be blunt but the problem is not the court - it's you.  

You (and most everyone else) sit at home searching the Internet looking for free stuff on the web because you are too lazy to go to your local county law library and use the resources lawyers use.  I know, I know - that's a bit harsh but the problem is that the free stuff on the web is not acceptable in any court.  Anything of worth is not going to just sit around free for the taking.  As such, you need to stay away from the siren song of the Internet and physically go to your local county law library and use the resources lawyers use if you want to get your legal documents accepted (and respected) by the court(s).  Which brings us to the point of today's discussion.

See, a while back I had a guy come into the library.  Seems guy had scored some free stuff off the Internet about how to write a motion for the Superior Court.  For the record, motions filed in a California court have 5 parts:
  1. Notice of Motion (says that you are filing a motion)
  2. Motion (says what you want)
  3. Declaration (says what happened)
  4. Points and Authorities (says what you want based on the law)
  5. Proposed Order (says what you want the judge to do)
The problem guy faced was that he didn't have #'s 2, 3 and 5 and failed to apply parts of #4 all because he relied exclusively on the free stuff he'd found on the Internet to show him what to do.  Sad, sad, sad was he (because he'd been humiliated in court). 

Happy, happy, happy was he when he met me (his local county Law Librarian) because in less time than it took me to write this blog post, I located  California Forms of Pleading and Practice (Lexis) and guy had everything he needed for his motion in a nice, tight package.  You can also find most of what you need looking in American Jurisprudence Pleading and Practice Forms Annotated (West).

I guess the moral to this story is, if you want to be set on the path to happiness and glory, consult your local county Law Librarian.  If, however, you have a penchant for misery and woe, stick with using free stuff on the "Internet."  Personally I'd go the Librarian route because it's a whole lot less of a hassle (to get it right the first time) and just talk with someone who knows where to go to get what you want.

Wednesday, January 14, 2015

Everyone goes sometime

Another death threat
Earlier this week, I received another death threat.  I was debating writing this post but figured I'd do it now in case I'm not around to do so later.  Thing is, I get these threats every now and then from people who get mad that I can't/won't give them legal advice.  Most times the people are just blowing off steam or don't have the cojones to follow through with the threat.  Thing is, you work with the public long enough and you can see in their eyes that it won't be long before it all hits the fan.

It all started with a family law matter.  Seems soon-to-be-ex-wife came in the library a while back.  She was looking for information about child support and custody so I suggested she take a look at
This is what I do.  I help people find what they need to help their cases go forward.  Thing is when money is involved, people freak out.  I mean, they FREAK the freak out.  Doesn't matter if it's a family law matter, someone dies (probate), someone won a lawsuit (civil), or someone won the lottery - if there is money to be had, people freak out to get a cut or avoid paying out a dime.

Anyway, apparently soon-to-be-ex-wife took the resources I suggested and prepared her case against soon-to-be-ex-husband.  Come her day in court, soon-to-be-ex-husband is absolutely floored when the court grants soon-to-be-ex-wife's request for child support and custody and demands to know how she got so smart.  Soon-to-be-ex-wife smugly tells soon-to-be-ex-husband that the tall, bow tie wearing guy at the law library helped her make him look like a fool in court (I mean, really?!?  If you're going to brag - leave me out of it!).  Apparently, soon-to-be-ex-husband didn't like being made to look foolish in court and eventually found his way over to my library fuming mad, stood as tall as his 5-foot frame could stand and informed me that, well,...  

So now I'm in the market for some personal protection - for all that will do me.  Bottom line: if you need help with all things legal research, I'm your man.  Just, please, if you're going to brag about how smart you got (with my help), have the decency to leave my name (or description) out of your gloating.

Monday, January 12, 2015

Holidaze

Going on a vacation
Who doesn't like taking a vacation?  Better yet - how about those paid vacations?!?  As most lawyer-type people know, in addition to time off, a holiday can mean that courts may be closed for business.  In fact, in the calendar year of 2015 alone, the California Courts are closed about 13 days.

What is important about knowing this is that because when the courts are closed, attorneys can't file legal documents (it gives them an extra day to string things out). The reason I'm bringing this up is because my CEB rep, Suzanne Smith, wrote an article in Linkedin.com about a new holiday affecting California Courts. Effective January 1, 2015, California Courts will honor Native American Day on the fourth Friday in September (thanks in no small part to a recent amendment to  California Government Code section 6700). While I suspect people may be a bit confused about how to honor Native American Day (um, going to an American Indian casino, maybe?), they will still be happy to frolic with family and friends.  So, win-win!

Anyway, if you happen to need legal reference assistance and happen to be in California on the 4th Friday in September, know that the good folks at your local county (operative word being "county" as in closed for the "official" holiday) law libraries will probably be out partying with the best of em. Yeah, we do party that hard!

Sunday, January 4, 2015

Idle Hands = Devil's Playground

Not all laws are good laws
What I want to know is why do we pay legislators full-time pay when they only work part-time?  I mean, these guys (and gals) take long vacations/breaks, aren't voting on anything most of the time (because they're out stumping to be re-elected), and are out spending my money on pork barrel legislation.  Then, when they are in session, they go and make laws like:

AB 1897: Employers Jointly Liable with labor Contractors for Violations.  Picture it, Company A contracts with Company B (like Kelly Services or any other temp agency) to hire employees to work at Company A.  Because the temp agency is the employer, if the temp agency doesn't pay a valid wage, the temp employee's only recourse is against the temp agency that hired them.  Under AB 1897, the temp employee can now go after the employer, too (in this case Company A).  The problem is, what is the point of having an temp agency intermediary if the company who uses temp employees are on the hook if the temp agency screws up?  Can you say bye bye to all the temp agencies?  Can you say unemployment is going up up up (thanks to some self-serving legislators).

AB 1522: Paid Sick Leave, up to 3 Days Annually.  So, here we have a law that says if you work 30 days or more in a year, you get 3 (paid) days guaranteed for sick leave. Sounds great (if you're a day laborer). The problem with this is imagine the scenario where people hire day laborers (i.e. illegal aliens/undocumented workers) for a long term project.  Say workers work for 31 days on a project; now they all can call in sick and get 3 extra days paid in FULL!  What a crock.  This isn't 30 consecutive days.  This is 30 total days.  So, what's going to happen is the employer is now going to have to fire everyone on the 29th day and hire a whole new crew.  Sucks for the day laborer who is doing a bang-up job.  Kudos to the guys who get hired on day 30.  Pain to the employer who has to keep track of everyone.

AB 1443: Prohibits Discrimination and Harassment of Unpaid Interns and Volunteers.  Courts around the state have held that unpaid interns and volunteers are not employees and, as such, are not afforded the same protections as an employee.  That said, really?  Apparently, there are some employers out there who can't differentiate between punching bags and humans so the legislature has to step in and create another stupid law to force people to see more clearly the difference.  Sad that you have to have a law to treat people decently.

Thing is, the California legislators have been up day and night thinking up ways to mess with we the people.  For a more extensive list of new laws, take a peek at Bills Enacted in the 2014 Regular Session and you all have a safe (and sane) New Year!