My husband and I are having a few financial difficulties due to the tight economy.  We have a beautiful home here in the Almaden Valley and want very much to keep it, of course.  I have read that a homeowner has the right to file for a homestead but that it makes no difference if you record one or not, you still have the right to it.  Is this true?

/s/Nina N.

Almaden Valley

Dear Nina:   

In a few words, Nina, it may make a difference if you have a recorded homestead as compared with just claiming the exemption.  Let me explain.

The law gives a lot of protection to homeowners to stay in their homes if at all possible.  Certain monetary amounts are set aside to homeowners if they get themselves into financial difficulty and a money judgment is entered against them.

Some of those homestead rights are referred to in the California Constitution and some are set out in the California Code of Civil Procedure, including §704.730 that sets out the amounts for a homestead exemption depending upon, for example:

$75,000 typically for a single judgment debtor;

$100,000 for a family unit with a judgment debtor;

$175,000 if over 65 or mentally or physically disabled, or 55 years of age or more with a limited income.

If your question relates to the amount of the homestead exemption, the rule generally is that the amount of a declared (i.e., recorded) homestead is the same as the general homestead exemption.

However, there are often many other issues involved, aside from just the monetary amount of a recorded homestead compared with the general homestead exemption.

Frankly, this topic becomes rather involved quite easily and the best thing to do is for each person or couple to see their own attorney for advice.  It is good to do a little background reading for general information and awareness, but there is no substitute for your own personal attorney’s advice.

I for one would not like anyone to rely on an internet article or column in a newspaper for legal advice, simply because there are too many variables in every situation and there is often too much at stake.

It would seem to me that if a person or couple were having serious financial difficulties, it would be much better for them to see their own attorney or perhaps a bankruptcy attorney for legal advice.

Often an initial consultation can clear up a lot of issues and provide a clear path, depending on the situation, and for a reasonable fee.

/s/Donald J. DeVries

Almaden Valley

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I had an unfortunate automobile accident a few months ago and now the other party is threatening me with a lawsuit if I don’t pay her for her claimed injuries.  On top of it, I did not have insurance.  Maybe I can offer her a token settlement but I am concerned that if I do, it will look like I was in fact responsible for the accident.  How can I deal with this?

/s/Jake J.

Almaden Valley

Dear Jake—

It is indeed unfortunate that you did not have your automobile insured at the time, since if you did, you could just turn the matter over to the insurance company.  Perhaps I can offer a few suggestions for general information, keeping in mind that every case is different.

First of all, you probably do not need to be concerned about the appearance of admitting liability for the accident by offering a settlement, if and only if it is done right. The California Evidence Code provides in §1152(a) that:

“Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”

So, you can see that if you offer to pay the other driver some money, that should not be held against you so that it looks like you are responsible for the accident just because you offered to pay some money.

However, it should also be understood that such an offer should be done right.  This would include your having legal representation to assist you at all stages to help ensure that it is processed appropriately.  Your attorney would undoubtedly require that the other driver and owner of the vehicle sign a full “release of all claims, known and unknown,” when the settlement is reached.  No money changes hands until this is done.

Such a “release of all claims” would include a waiver or giving up of unknown claims.  Under California Civil Code §1542 a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

However, the protection offered by §1542 can be waived, and your attorney would probably ensure that this protection is waived—for your benefit.

/s/Donald J. DeVries

Almaden Valley

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I have a really neat Web site domain name and I would like to change my name to be the same, including “.com.”  Is it OK legally to do that?  My name now is rather dull and I have never liked it.

/s/Jane J.

Almaden Valley

Dear Jane:

You have emailed in a very interesting question, Jane.  Generally speaking, one’s name is his or her own business, but there are a few rules to follow if a person wants to change their given name or surname.

A case arose in the Los Angeles area last year that dealt with this very issue.  A young man, very interested in pushing the legalization of marijuana, filed a Court Petition to have his name changed to match his Web site, “Njweedman.com.”

His real name was Robert Edward Forchion, Jr., and he was a resident of New Jersey.  He operated a Web site, “Njweedman.com,” and he wanted to legally change his surname to match the Web site.  The California Court of Appeal for the Second Appellate District said no, you cannot do that for a number of reasons.

First of all, a statutory name change to Njweedman.com would last indefinitely.  But Mr. Forchion might lose the use of his Web site by failing to make periodic registration payments or by breaching the registration agreement.  In that event, the Web site name (Njweedman.com) could be registered to someone else and, at the same time, Mr. Forchion could keep his new personal name (Njweedman.com).  If both parties used that name to conduct business, confusion might result.

Further, the Court of Appeal said, even if Mr. Forchion were allowed to adopt Njweedman.com as his personal name, and he properly maintained it as the name of his Web site, the name might be so similar to another Web site name or trademark that the multiple usage would create confusion.

Alternatively, in the words of the Court, the name change would associate Mr. Forchion’s new personal name with the Web site’s advice that individuals violate the law in several respects.  And a name change should not have that consequence.

A similar Petition for change of name had been filed by Mr. Forchion in New Jersey in 2001 which was denied by the New Jersey Court.  So, as a matter of “comity” (mutual respect of sister-state laws and Court decisions), California should not grant the new Petition that was previously denied in his home state.

Almaden Times readers can read this case very easily by heading for their favorite search engine and entering the name of the case in their browser: “In re Robert Edward Forchion, Jr., for Change of Name.”

/s/Donald J. DeVries

Almaden Valley

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I work for a well-known high tech company, the name of which is not important.  I want to sue a co-worker for grossly insulting me at work.  It was really humiliating.  If I lose in the trial court, I will appeal—for sure.  If I can’t find an attorney to take my case, I will do it myself.  Is this OK?

/s/Rocky R.

Almaden Valley

Dear Rocky– 

Generally speaking, you may have the right to represent yourself in many, but not all, situations.  However, first you need to have grounds for your suit.

And along the way, you need to follow certain rules of our court and litigation system.  If you do not do so, you could be hit with “sanctions”, very much like a fine for abusing the judicial process.

These rules were discussed in a recent case arising in our own back yard, Santa Clara County Superior Court and the Court of Appeal of the State of California, Sixth Appellate District.

In this case, Loretta was found to have violated several rules set by the trial court and was hit with sanctions of $552,153.28 in favor of her former husband, Drew.  That’s right, over a half-million dollars.

In that same case, on the court’s own motion, the Court of Appeal also imposed sanctions for filing a “frivolous appeal” of $15,000 and Loretta’s two attorneys were also each ordered to pay $5,000 to the court.

In a footnote, the Court of Appeal stated that a party who chooses to represent himself is not entitled to a different standard than an attorney.  Mere self-representation is not a ground for exceptionally lenient treatment.  A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties involved in the litigation.

In that case, the Court of Appeal also stated that “As is the case with attorneys, pro per (self-represented) litigants must follow correct rules of procedure.”

Almaden Times readers can read this case for themselves quite easily.  It is dated February 2, 2012 and it is entitled Loretta Wahl v. Drew Perkins. If you enter the name of the case in your browser, it should be on your screen in about a half a second.

So, I would be careful, Rocky, about suing anyone without proper grounds.  You might want to consult an attorney first to see if you have the proper basis for a law suit.

And then, you will want to follow all of the rules of our system as time goes on.  You may find that following the rules pays good dividends.

/s/Donald J. DeVries

Almaden Valley

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I read in the San Jose Mercury News on February 19, 2012, an article about documents consumers might have just in case serious health issues arise.  One document as an Advance Directive and the other is the Physician Orders for Life-Sustaining Treatment (POLST).  What is your thinking as an attorney about these documents?  Is either one or both worth having?

/s/Sarah S.

Almaden Valley

Dear Sarah– 

I too read that article with some interest, Sarah.  In short, both documents are very good to have, just in case serious health issues arise.

The Advance Directive, also called the Advance Health Care Directive, or Power of Attorney for Health Care, is very important in that it names your agent to work with your health care providers in case you are incapacitated.  You would ordinarily work with your attorney to prepare and sign that document.

The Physician Orders for Life-Sustaining Treatment (“POLST”) is also important.  You would work with your doctors to prepare and sign that document.  Actually, I wrote about the POLST in this column that appeared in the Almaden Times on January 11, 2009.

You can read my earlier article about the POLST procedure by going online and heading for my web site, www.almadenvalleylawyers.com.  Click on “Ask the Lawyer” and then “Estate Planning” articles.  Scroll way down and click on “Older Posts” twice and you will eventually come to it.  The title of the article is “POLST Comes to California to Assist Consumers.”

On April 1, 2011, the POLST form was revised by a statewide POLST Task Force, but older versions of the document are still valid.

You can learn more about the Physician Orders for Life-Sustaining Treatment by going online to www.finalchoices.org.  You will be automatically directed to the web site for Coalition for Compassionate Care of California.  There you can learn a lot more about this document and how it works.

It seems to me, Sarah, that both the Advance Directive and the POLST form are important for California consumers.  When you look at the POLST form you will see that it provides for boxes to be checked pertaining to the person’s Advance Directive.  You will also see that the POLST form can be signed by the patient or the “Legally Recognized Decisionmaker,” such as the Health Care Agent.

Finally, by having both documents in effect, you may avoid a costly Conservatorship of the Person, which is a court proceeding that is often protracted and stressful.

Consumers in California do have options and it pays huge dividends to explore various ways to deal with these health care issues.

In short, both documents are “worth having.”

/s/Donald J. DeVries

Almaden Valley

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I am thinking about going into business for myself and I need some legal help. It seems to me that a corporation is the only way to go to keep creditors away just in case my new business is not successful. Isn’t it true that only my corporation would be responsible for corporate debts?

/s/Kevin K.

Almaden Valley

Dear Kevin—

The short answer to you question, Kevin, is a definite maybe. Maybe yes and maybe no. Let me explain.

Let us assume that your corporation was properly set up in terms of articles of incorporation, bylaws, and all the rest. Let us further assume that the corporation incurred a business debt. This does not automatically assume that only your corporation is responsible for the business debt.

A creditor could possibly argue in court that you are the “alter ego” of your corporate entity. If that argument were upheld in court, you could possibly be personally responsible for the business debt, along with your corporation.

These principles were discussed in a recent case arising out of Los Angeles County Superior Court. The case is entitled Misik v. D’Arco and it was decided July 27, 2011 by the Second Appellate District.

In the Misik case, Mr. Misik loaned Mr. D’Arco’s company, Sayrahan Group, LLC $150,000. A default occurred and a judgment was entered after trial in favor of Mr. Misik for the $150,000. However, the initial judgment was only against Mr. D’Arco’s corporation and not against him personally.

An appeal followed by Mr. Misik and the Court of Appeal found that even after a trial, personal liability under the “alter ego” theory of liability could be imposed against Mr. D’Arco, even without a finding of actual fraud. A finding of “injustice” in adhering to the fiction of the separate existence of the corporation may be sufficient.

The Court of Appeal discussed the various conditions under which the corporate entity may be disregarded and personal liability imposed for business debts.

One factor is whether there is a sufficient unity of interest and ownership between the corporation and the individual or organization controlling it that the separate personalities of the individual and the corporation no longer exist.

And a second factor is whether treating the acts as those of the corporation alone will sanction a fraud, promote injustice, or cause an inequitable result.

Almaden Times readers can read this case for themselves by going to their favor search engine and entering Misik v. D’Arco and hitting “go.” Several ways to access the case should be on your screen in a heartbeat.

/s/Donald J. DeVries

Almaden Valley

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I have several items of fairly low value that I want to pass on to my children.  The problem is that if I list them in my will and then change my mind, it may cost more than they are worth for my attorney to change my will.  Is there any way around this?

/s/Stephanie S.

Almaden Valley

Dear Stephanie—

I can understand your predicament, Stephanie.  From your point of view, the attorney’s fees for a new will or codicil or amendment to your present will made cost more than some of the items are worth.

Fortunately, the California legislature has been aware of this problem as well.  In 2006, the legislature enacted Probate Code §6132, entitled “Writing Directing Disposition of Tangible Personal Property.”

This law basically states that your will may refer to a writing that directs disposition of tangible personal property.  There are a few exceptions, such as money that is common coin or currency and property used in a trade or business.  And there are some monetary limitations.

So, what you might want to do is to leave a list of which items pass on to what people if something happens to you and make sure that the list is referred to in the will.  You will also want to make sure the list is kept up to date.

I would also check with my attorney to make sure that my will refers to the list and that the list of items is proper in all respects.  Then, you may be able to just change the recipient names or the items as time goes on.

If you would like to read the key provision authorizing such a list, you can go online with your favorite search engine and enter California Probate Code Section 6132.

You will see that the will needs to be unrevoked, i.e. it must be your current, valid will.  Also, the writing needs to be dated and either in your own handwriting or the list needs to be signed by you, the testator or will maker.

Another requirement is that the writing must describe the items and the recipients of the property with reasonable certainty.  For example, I would think that “My wedding rings to my niece Patsy Faye” or “My toy car collection to my grandson Benjy” would be OK.

In this manner, if you change your mind later on about who gets what, you can just change the list without incurring the legal expense of a new will or codicil (amendment) of your current will.

Good luck with your list, Stephanie.  I hope it works out OK.

/s/Donald J. DeVries

Almaden Valley

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I loaned about $1,500 to a friend at work and now he says he cannot pay me back.  I had him sign a promissory note at the time.  I have asked him several times about it, but he just refuses to pay me.  Hiring a lawyer is probably too expensive.  Can I proceed in Small Claims Court?  What do I do to prepare properly?

/s/Kenny K.

Almaden Valley

Dear Kenny—

Sorry to learn about your predicament, Kenny.  If you have exhausted all (proper) means to collect the debt, Small Claims Court may be for you.

Before you go to the courthouse to file your claim, you will want to get your paperwork in order, and you should learn a little about Small Claims Court before you start that process.

If you go online with your favorite search engine you should find a wealth of information that is available.  One of my favorite web sites is the State Bar of California.  The State Bar web site has a number of consumer pamphlets available online and by mail.

One of those pamphlets is entitled “How Do I Use the Small Claims Court.” You can read it online at any time.  It is just excellent, and it is published by the State Bar.  Consumers can have a sense of satisfaction that it is from a objective qualified source and it is published for their best interests.  Other pamphlets are available as well.

The Small Claims pamphlet might be a little out of date in one respect, though.  It mentions in question two that the maximum claim is $7,500.  However, my copy of the California Code of Civil Procedure states in Section 116.221 that the maximum amount for individuals is ordinarily now $10,000.

After your homework is completed and your hearing has been set and the defendant served, you will want to prepare properly for the hearing.  Have a chronology typed out for yourself showing step by step what happened that you can refer to at the hearing.  During a court hearing, it is easy to forget key dates and events.

You will also want to have your key documents in order with a copy for the judge and a copy for your adversary.  I served as a temporary Small Claims judge many years ago and was favorably impressed when the parties had their case well organized.

At the hearing, you will want to be brief and to the point.  Answer the judge’s questions and then stop.  Don’t tell a big, long story that has nothing to do with the case.  Keep the tone civil and businesslike.

I’m sure you will do just fine.  And good luck!

/s/Donald J. DeVries

Almaden Valley

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I have a very good attorney and I want her to testify on my behalf in our court case coming up.  She can take the stand just like anyone else and really to a good job, but she says she cannot do that and be my attorney at the same time.  Are there any rules on that?

/s/Nina N.
Almaden Valley

Dear Nina—

I can understand why you have raised this question, Nina, but the rule is fairly clear.  Allow me to explain this a bit.

There are different roles that people play in the courtroom.  One of those important roles is that of a witness.  Often that witness is a percipient witness, who would testify about things he or she perceived in the past.

Another important role in the courtroom is that of your attorney, or your advocate.  The problem is that these roles may be very different.

The basic rule is that one should not be both a witness and an advocate in the same proceeding.  This is known as the advocate-witness rule.  This rule was discussed at length in a recent court case entitled Kennedy v. Eldridge, from the Court of Appeal for the Third Appellate District in Sacramento.

In that case, the dispute was over an infant child. The child’s paternal grandfather was an attorney, representing his son, the father of the child.  The case was against the mother of the attorney’s grandson.

The Kennedy case was a very involved family situation with overlapping issues and competing interests.  The court discussed the advocate-witness rule and stated that the advocate-witness rule prohibits an attorney from acting both as an advocate and a witness in the same proceeding in most situations.

The Court of Appeal quoted an American Bar Association ethics provision that now states that a lawyer shall not act as advocate at a trial in which he lawyer is likely to be a necessary witness except in a very few limited situations.

The problem is that as a witness, the attorney must tell the truth, and as an advocate, the attorney’s job is to obtain the best result for the client.  Further, those duties may not necessarily be coextensive and where they are not, the attorney-witness may not choose between them.

In the Kennedy case, the court also said that the likelihood of conflict inherent in the dual status of the attorney-witness was indisputable.

Almaden Times readers can read the Kennedy case for themselves by entering the name of the case in their favorite search engine and hitting “go.”  Once again, the name of the case is Kennedy v. Eldridge.

/s/Donald J. DeVries
Almaden Valley

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My wife and I have a living trust, wills, and related documents, but I am curious about this question.  If I were to die, just who are my heirs? Where would my property go? Where can I go for more information about this topic?

/s/Henry H.
Almaden Valley

Dear Henry—

Thank you for emailing in that question. And it’s good to know that you and your wife already have a living trust, wills, and related documents. You should be in good shape legally if something were to happen to you.

Listing your heirs really depends on a lot of things. First of all, you would want to look at your legal residence, since many state laws are different. Let us assume you live in California when you die.

By the way, if a person dies without a will, we say that the person died “intestate.”

Next, you would look to see your marital status. If you are married, your surviving spouse has certain rights if you die without a will. Some of these rights are stated in California Probate Code §6401.

If a person dies as a single person, his or her property usually passes to the decedent’s “issue”, or children, in equal shares, under California Probate Code §6402(a), and if there is no surviving “issue”, to the decedent’s parent or parents equally.

If there is no surviving “issue” (children) or parent, then to the issue of the parents or either of them, i.e., brothers and sisters of the decedent, under Probate Code §6402(c).

Of course, there are provisions in the law for more remote relationships, just in case that becomes necessary. One can envision where it may be necessary to pass property interests to great grandchildren, or even first, second, or third cousins thrice-removed. Of course, the decedent may not have ever met these people.

A colorful chart showing some of these relationships can be found by going online to MyStateWill.com. You can readily see various “Degrees of Kinship by the Rules of Civil Law” prepared by the author of that work. A note of caution is needed, however, and that is to always determine what state the information applies to, since each state has different laws when it comes to trusts, wills, and related issues.

Another note of caution for our Almaden Times readers: you will always want to consult with your own attorney to see how these general legal principles may or may not apply to your particular situation. It seems like for every rule there are numerous exceptions, and only your own personal attorney can advise you properly.

/s/Donald J. DeVries
Almaden Valley

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