Angela Martin’s Legal Blog

Whenever you move out of an apartment, the question about the security deposit is raised.  “Do I get it all back?” “Why did I get so little back?”  “It was clean when I left, what did they use it for?”

 Just so you know, California allows for 4 primary uses the landlord can apply the security deposit for (this is not including a “pet deposit” which is often in addition to the regular deposit”)

• unpaid rent
• Cleaning the unit (putting it back as clean as when you moved in)
• Repairs for damage beyond regular wear and tear
• If provided in your lease, repair or replacement cost of furniture, personal items, or keys, beyond regular wear and tear damage.

In any of these cases, the landlord has 21 days from your move to provide you with either the full refund of the deposit, or an invoice itemizing what the security deposit was applied to and the remaining balance. 

The major problem is a forwarding address.  If you do not provide your landlord with an address to forward your security deposit to, the default location is the rental unit you just moved out of.  Once mailed, they have fulfilled their obligation.  So, for your own interests, whenever moving you should:

• Review the lease to see if the deposit can be applied to anything different
• Have a walkthrough with your landlord before moving out (this can often be requested 2 weeks before your noticed termination upon request) to review any alleged damages.
• Provide your landlord with a forwarding address!

 Good Luck with your move.

Perhaps one of the most useful tools in fighting against domestic violence is Califofnia’s Domestic Violence Act (and its parallels in other states).  This allows anyone who has been injured, threatened, stalked or harrassed to immediately go before the court and obtain an order to at least temporarily restrict the abuser.

 The temporary restraining order is a remedy that in essence may save lives, and will often put people on notice about the danger that others will present.  However, the abuse of the system has also been used as a legal manuver to restrict a parent’s access to their children, cause difficulty for an ex-boyfriend/girlfriend, or in very extreme cases be competely unwarranted.  In addressing any TRO, it is important to remember that the Courts ar there to protect people and will often err on the side of caution.  This is often unfair to individuals who are not a threat, but the goal is to protect parties from the real threats.

In addressing a restraining order that you may believe is unfounded, the key thing is to remember and demonstrate to the court exactly what occured.  Deny every allegation that is false and provide the court with evidence or witnesses that can show what truly happened.  Although the system is made to err on the side of protection they Court is required to review the testimony before determining there is a valid concern.

 No one will be “ok” with their rights or ability to visit their children restricted, so it is very important to take any allegation or petition for a restraining order very seriously. 

I will be the first to say that I currently love my job.  I enjoy coming to work, being productive, helping people during a time in their life when they can potentially be at their worst.  I get a certain sense of fulfillment when I come into the office.

However, there is definitely something about an overcast or rainy day that makes you want to just stay curled up in your bed  - despite how much you love your work.  It is as if those days were made for nothing but a warm comforter, hot chocolate, and maybe a good movie.

Recently, the weather here in our Long Beach office has been pretty gloomy, and although I love comign to work I  have been severely tempted to just stay in a couple of days.  

So to those of you who CAN remain in bed - enjoy the rain.  For the rest of us, watch out for those LA drivers who are scared of raindrops!

Many times, there are couples that have been together for years, but never took the time to get married.  They love each other, spent their lives together, may even have had children.  It was just like being married - just no paper.

Other than the extra steps to ensure medical or other employee benefits, for the most part it would appear to be the same.  In fact many of the couple’s friends may beleive they were married.  However, if they ever break-up, the state of California does put quite a bit of stock in that “piece of paper.”

 Currently, only 9 States (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma, and Texas) and the District of Columbia recognize “common law marriage.”  This means, that in the State of California, unless your marriage was solemnized (or deemed valid in another state), you cannot file for divorce and seek relief under the Family Code when you break up.

California does provide another option - in certain circumstances.  It is called the Marvin Action.  This is a situation where two consenting adults live together and agree - expressly or impliedly - to provide support or have some sort of property arrangements.  It is a contract claim, that for the most part is filed in civil court.  Based on the terms of the “contract” a party may be awarded a division of property, support or other remedies.  The trick is determining whether the agreement existed and what the terms were.

In any case, although that “piece of paper” makes it easier under the code to sort out a longterm relationship in the end - JUST LIKE being married, isn’t as easy as BEING married in the end.

You may have already heard, but just in case you didn’t I would be remiss if I didn’t spread the word.  The Hope for Homeowners Program is alive and active.  This federal program is a new tool in the loan modification process.

 For eligible borrowers, the Hope for Homeowners Program will assist in modifying your loan to a fixed 30-40 year rate.  This program will also reduce the principle to approximately 96% of the value of the home.  Now this also does require that the government will have an interest in the home’s equity, but that is only to secure their interest.

 Through this program, lenders will have to discount loans, but borrowers will have to demonstrate (through documentation) their ability to make the new monthly payments for the new life of the loan.  It’s a great start and will definitely provide help in the common situtation where the home is now: “upsidedown.”

 For more info, check out:  http://hopeforhomeownersact.us/Program-Details.html

The first batch of 2008 California Foreclosure figures are in!  Although California is not the leader in the number of foreclosures, we are close to the top.  Early reports state that foreclosure proceedings were initiated on 1 in 54 homes across the United States this past year.  In California at least one organization, RealTrac, reports the total number of filings (ie Notice of Default to begin the process) was over 520,000.

The first quarter of the year saw the largest increase in foreclosure filings, but with the passing of SB 1137 (California Senate Bill to assist homeowners and encourage loan modification) the filings did slow.  This new law now requires that before filing a Notice of Default a lender MUST contact the borrower at least 30 days prior to beginning the foreclosure process, assess the borrower’s financial situation, and provide a toll free number to HUD for borrower assistance.  In essence this extends the foreclosure process to a minimum of 150 days in which the borrower can attempt to save their homes.

SB 1137 was signed in July 2008, but went into full effect in September 2008.  This much needed bill will help a lot of homeowners at minimum begin working with their lenders and provide just a little more time to save their homes.  This did allow the process to slow down for the final quarter of 2008 - let’s hope that it will only continue to encourage lenders to work with borrowers in the future as well.

Many landlords have a number of requirements and obligations to fulfill in regards to maintaining a property.  There are some obligations and covenants that must regularly be addressed.  An interestingly vague/broad requirement is the covenant of quiet enjoyment.  This is the duty of the landlord to enable a tenant to

Recently, a California case has directly utilized this covenant to prevent exposure to secondhand smoke in common areas.  The case is Birke v Oakwood Worldwide.  In this case, a child (2 at the time of filing) diagnosed with asthma sued the property owner for public nuisance asserting that by not limiting smoking in the common areas they “allowed, encouraged and approved” exposure to toxic contaminants that prevented other tenants from comfortably enjoying the residence. 

This case has not gone to trial, but initially was dismissed at the filing stage because the trial court held that the child lacked standing to file a public nuisance claim because she did not allege she suffered any direct injuries from the exposure that the general public (other tenants) would have suffered.  Her dismissal was appealed and the appellate court held that although this is true, she may have had a private nuisance claim because of her medical conditions.

 This ruling did not establish that the landlord is liable or required to restrict the smoking in common areas, but it does establish that the child at minimum has a cause of action.  As the case moves forward, it must be decided whether the landlord has a duty in this arena.

Many landlords to avoid this have often included no-smoking clauses in lease agreements or will post rules regarding areas that are smoke free.  However, as a general rule (unless otherwise restricted) you are permitted to smoke in your own home and places that are not considered “public” in California.  This is a case that should be watched because in the near future, instead of just reminding your tenants to put a leash on their dog and clean up the mess, you may also be required to monitor smokers as well.

One of my original posts on this blog concerned the court battle over the Oscar received by Mary Pickford - a 1920’s Hollywood star, one of the original founders of the Academy of Motion Pictures Awards, and recipient of two Oscars herself.

As a brief recap, Ms. Pickford received the 1930 Academy Award for Best Actress.  In 1950 the Academy began requiring all recipients to sign a contract upon receipt that in the event a recipient were to sell their Oscar, the Academy would have the right to purchase the Oscar back for $10.00 (now reduced to $1).  Ms. Pickford received an honorary second Oscar in 1976. When Ms. Pickford died, in 1979 she the Oscar was inherited by her husband Buddy Rogers.  After his death, his beneficiaries sought to sell Ms. Pickford’s Oscars to raise funds for the Buddy Rogers Youth Symphony and Orchestra.  That is when the Academy stepped in and asserted that when Ms. Pickford received her second Oscar she signed the agreement which required the 1976 Oscar as well as the 1930 Oscar to be returned for the $10.00/$1.00 instead of being sold.  The trial began in December.

 After a two week trial, the jury returned deciding that the Oscars could not be sold, until after the heirs offered it to the Academy for a mere $10.00.  So it appears that the heirs will either keep the Oscars in the estate or hope that the Academy declines the offer.  This is not the first Oscar that has been placed on auction.  In fact a few Oscars (pre-1951) have managed to slip through the Academy’s fingers.

In 2001, Steven Spielberg was revealed as the anonymous bidder who paid $578,000 for Bette Davis’ Oscar for 1938’s “Jezebel.” Spielberg, a supporter of the Academy’s policy, donated the statuette to the organization. He later bought Davis’ Oscar for 1935’s “Dangerous” for $207,500 and paid $607,500 for Clark Gable’s best actor prize for 1934’s “It Happened One Night.”

Kevin Spacey also won an auction, paying $156,875 for composer George Stoll’s Oscar for 1945’s “Anchors Aweigh,” which Spacey donated to the Academy.

Others have paid high prices but not done the same. Michael Jackson paid $1.54 million for the best picture Oscar for 1939’s “Gone With the Wind,” and magician David Copperfield bought for less than $250,000 the Oscar awarded to Helmer Michael Curtiz for 1942’s ” Casablanca .”

With these facts and the timing of Ms. Pickford’s first Oscar (1930),  the heirs were reasonable in believing they had a right to sell it.  The big clincher for the jury was that Ms. Pickford was one of the founders of the Academy itself and an active member - including assisting in designing the Oscar itself - until her death.  It appears that because she voted on the bylaws that established the first right of refusal she should be bound by it.

There are other issues still pending in the matter, and possibly an appeal.  However, as it stands now - Oscar is staying in the closet.

Everyone has heard of the bailout/rescue program for the nation’s largest banking institutions.  Were you aware that the first half of the $700 Billion Dollar fund has already been allocated to individual banks, investment firms, etc.  However, there has been little explantion as to how many individuals - if any have been able to benefit through better loan modification deals or reduction in foreclosures.

 Thus far, there has been an implication that lenders will work harder with borrowers, federal tax breaks, and a reduction of federal interest rates.  These are all helpful, but there are still many individuals that need some extra assistance immediately.

Let’s all hope that this coming year brings a bailout and a lot more transperancy.

 In the meantime, it is always helpful to remember that you should be able to talk to your lender, request the modification and review your other options.  The attorneys of Smith & Garg, PC are always willing to sit down and explain the current options available to you.

Happy New Year, everyone!

 It is time for a fresh start, new beginnings, changes - or any other description you desire.  It is also the time to start paying off those fun little credit card charges incurred over the holiday season.  Of course we all resolve to pay off debts or not spend so much during Christmas, but for those of us who have ignored our little “recession” and continued to spend, here are a few post-holiday credit tips:

Step No. 1: Make a list of what you owe on each credit card and arrange all of your debts in order, starting with the largest balance first. Then prioritize your repayments (ie paying down the highest interest rate first).

Step No. 2: Eliminate credit cards and don’t roll over balances. Once paid off, notify the company that you want to close the account.

Step No. 3: Track the money that’s coming in and going out. Use a debit card instead of your credit card. Download your bank transactions into a computer program for easy categorizing.

Step No. 4: Don’t go back to spending on the credit cards that are already paid down! Many people pay down credit cards only to charge them up again.

Step No. 5: Some people, the problem of overspending is a psychological one. Spending can become a habit that’s as difficult to kick as alcohol, drugs or gambling. Sometimes, it’s due to circumstances they truly could not avoid: medical bills or divorce or loss of a job.

Remember, there are a number of organizations that provide help in creating a credit management plan.  Be sure to research these organizations before paying.  Often the Better Business Bureau and the Federal Trade Commission will have listings on their websites of reputable comanies.

 Happy New Year and good luck with your resolutions!