3 Lawsuits That Are Changing the California Labor Law Landscape

Employment lawsuits have risen to their highest peak in history, with almost 100,000 claims files in 2010, according to the EEOC. Incredibly, that number reflects a 31% increase from just 4 years ago! There is a never-ending flow of new court cases and decisions that change the employment landscape, making it extremely difficult for employers to stay ahead of the curve. Particularly in California, labor law evolves faster than federal law, adding to the complexity of employment compliance.

In the first half of 2011, employment and labor lawsuits in California have resulted in many important decisions that will directly affect the way employers in the state relate to their employees. Many of these cases have already been decided upon by the California Supreme Court, while others are still pending a decision.

Below is a brief outline of three key cases, and an important “take away” for employers from each one.

Case #1

Summary: The Plaintiff was a senior executive at Google and claimed that he was discriminated against because of his age in a notoriously “young” corporate culture. To support his case, he relied on various comments by superiors and coworkers that his ideas were “obsolete” or “too old to matter,” that he was not a “cultural fit” and that he was an “old man” and an “old fuddy-duddy.” Google argued that none of these remarks were made in connection with any employment decision and should be deemed irrelevant “stray remarks.”

The California Supreme Court rejected the notion that “stray remarks” made by non-managerial staff, or by supervisors outside of the disciplinary process, should not be given weight in court. Rather, such “stray remarks” may and should be considered in the context of the evidence and could be used towards reaching a final decision.

Take away: All managers should be aware of what is being said in the workplace, even in casual talk between employees, and to be proactive in eliminating derogatory or discriminatory remarks.

Case #2

Summary: This employer’s corporate location was based in California, but had employees working out-of-state. Due to California’s dissimilar overtime laws, the employer paid the out-of-state employee based on his state of residency, and not according to California’s overtime regulations. The California Supreme Court is currently reviewing the case to determine if the California Labor Code applies to overtime worked in California for a California-based employer, by out-of-state workers.

Take away: While the case is still pending before the Supreme Court, employers should carefully review all state labor code guidelines.

Case #3

Summary: The E.E.O.C. sued a California airport services company based on a male employee’s allegation that he was sexually harassed by a female co-worker and thus suffered from a hostile work environment. The California Ninth Circuit Court of Appeals reversed a summary judgment for the employer, emphasizing that Title VII of the Civil Rights Act entitles men, like women, to protection from an abusive work environment. The California Supreme Court eventually found in favor of male plaintiff.

Take away: Never just tell a male employee to “Be a man” or “Get over it”, if he claims of harassment. Take the claim seriously and conduct a proper investigation.

In conclusion

Most work related acts made by employers toward employees are not intentionally bigoted, malicious or discriminatory by nature. However, the complexity of labor laws in California demand that employers act with extreme caution when engaging employees and making employment decisions. In many cases, these actions can and will be brought against them in an employment lawsuit. As a reminder, California labor laws differ in many areas from Federal laws, so check with legal counsel before making any questionable employment decision or act.

Thinking of Relocating to California’s Silicon Beach?

What do Hulu, True Car and Snap Chat have in common?

These companies have invaded Southern California to comprise what is currently known as Silicon Beach! It’s not really a specific beach or even a location; it’s a movement of startup companies that could have settled in Silicon Valley, but prefers the Southern California lifestyle. And the rising prices of homes in Northern California kept many entrepreneurs looking for other great destinations on the West Coast.

Over 500 tech startup companies have opened offices in the Los Angeles area including well-known companies like Google, Yahoo, You Tube, BuzzFeed and MySpace. Their presence expands from El Segundo to Beverly Hills and Hollywood, and the size plus the diversity of Los Angeles provides a much better laboratory for startups to test new products than Silicon Valley in Northern California. With a population of more than 18 million, Los Angeles has a representative sampling of the United States or perhaps even the world.

These companies are attracting the best and brightest to their employment ranks, and most are also attracted to the beaches, great weather and the presence of the entertainment industry.

As more young professionals move to Los Angeles, the look of the city has changed with a growing number of upscale restaurants, farmers markets and chic retail boutiques. In LA, there’s a neighborhood for everyone’s taste; young professionals are attracted to the funky, upscale vibe in Venice while those families with kids, and concerned with schools, gravitate towards Mar Vista or Culver City. Playa Vista is a planned community with its own schools, library, fitness club, farmers market and restaurants. It attracts a lot of New Yorkers because of the ability of residents to walk everywhere.

If you’re relocating to Los Angeles, the wide variety of architectural styles of homes will attract you. Spanish is popular, showcasing beautiful tiles and mosaics. Craftsman homes were some of the earliest built in Los Angeles, and many home buyers are remodeling them to their original luster. Ranch style, mid Century and Colonial are all here, waiting to be purchased. Angelinos favor the open, indoor/outdoor look taking advantage of all the sunny days which are perfect for entertaining. To many, the outdoor BBQ space is just as precious for entertaining as their indoor kitchen and dining area.

If you like socializing with the best and the brightest in an upscale, fun atmosphere, consider relocating to Silicon Beach.

How to Obtain Title For Abandoned Real Estate Through Adverse Possession in the State of California

What is Adverse Possession? How can I obtain title to real estate?

In a nutshell adverse possession is a process where a person or an investor can obtain the ownership or title of real property from another person because the owner has abandoned the property. This is done by simply taking possession of that property in the manner prescribed by state law.

In doing so, you can, literally acquire ownership or title of the real property for just paying the back delinquent real estate taxes and the cost to file a quiet title lawsuit establishing that you obtained title to the property through adverse possession. In other words, you can take title of valuable property for a incredible discount.

The Law of Adverse Possession

The laws governing adverse possession is local state (or, in Canada, territorial law); consequently an Abandoned property investor must look into the specific laws of a specific state or Canadian territory where the real property is located. Since the laws are different dramatically from jurisdiction to jurisdiction and can often be confusing, anyone wishing to take title to real property through adverse possession should contact a knowledgeable attorney before attempting to do so.

In order for you to begin understanding the requirements of Adverse Possession let’s look at a specific example. Below is a closer look at th California Adverse Possession law. We will use this law to identify and explain some of the more common terms used in Adverse Possession.

California Adverse Possession Law

Briefly, California state law states that Real Estate investors wanting to obtain title to another person’s real property through adverse possession MUST satisfy all the following Requirements:

1.That the Abandoned property investor’s possession was held under either (1) a claim of right or (2) under color of title:

2.That the Abandoned property investor’s possession was actual, open and notorious;

3.That the Abandoned property investor’s possession was hostile, adverse an exclusive;

4.That the Abandoned property investor’s possession was continuous and uninterrupted for a period of five years;

5.That the Abandoned property investor paid th real property taxes during that five-year period.

Possession must be held under either (1) a claim of right or (2) under color of title.

The California statutes governing adverse possession and as well as the statutes of most other states make a distinction between claiming adverse possession based upon a “claim of title founded upon a written instrument or judgment or decree” (often referred to as a claim under color title) and claiming adverse possession based upon “a claim of title exclusive of any other right, but not founded upon a written instrument, judgement, or decree” (often referred to as a claim as either a claim of right, see California Code of civil procedures Section 322 and 323. As to such claim under claim o right, see Code of Civil Procedures Section 324 and 325.

Basically a claim of adverse possession based upon color color of title is one where the claimant(Abandoned Property Investor) took in good faith possession under a deed (or some other written instrument) or judicial decree that appeared to transfer good title, but was defective. For example, a tax sale investor might take adverse possession through color of title for real estate bought at a California county tax-defaulted sale where the sale was conducted improperly and, consequently, the deed was void.

“Claim of Right” or “Claim of Title”

Abandoned property investors attempting to take title to real estate through the doctrine of adverse possession are generally more interested in taking such title through “claim of right” or “claim of title”. Under this doctrine, an investor merely needs to take actual possession of the property and hold that possession as required by appropriate jurisdictional law.

As might be expected, the requirements to establish adverse possession under a claim of right are (under California law and under the law of most all other states) are more strenuous than those associated with claiming under color of title.

In order to be accurate as the specific requirements for a claim of right refer to the specific state statutes. Again, to be safe consult with a knowledgeable attorney in the county where the property is located.

Possession must be actual

As will be seen below, an abandoned property investor claiming possession under the doctrine of adverse possession does not have to personally occupy or live on the real estate to be in actual possession of the property. However, actually living on the real estate is probably the strongest and clearest evidence that possession is actual.

Possession by tenant as actual possession

Real property can be occupied, lived on, and actually possessed by a tenant under a tenancy agreement. Take, for instance, if you look at the California appellate case of Traeger v. Friedman (1947) 79 CA 2d 151. In that case, the adverse possession claimant took possession of a apartment building through tenants and, then, managed and rented for five years. She evn paid the real property taxes out of the rent. The California court held that she had met the actual possession requirement needed to perfect title under adverce possession.

Possession is deemed actual if lands is “protected by a substantial enclosure”, “usually cultivated or improved”

If the adverse possession is claimed based on a claim of right, then California Code of Civil Procedure Sections 324 and 325 apply.

A abandoned property investor’s possession is deemed to be in actual, open and notorious possession of specific real property under a claim of right when that person has either

1.”protected” that property “by a substantial inclosure” OR

2.That person has “usually cultivated” OR

3.Has “improved” tht property.

If the real property being taken through adverse possession is a lot and acreage and cannot be actually possessed (i.e., lived on) then that property must be either “protected…by a substantial inclosure”, “usually cultivated”, or “usually improved”.

If the property is protected by a substantial inclosure, then the inclosure must be “substantial” enough to give the true owner notice of the investor’s Claim of adverse possession during the entire prescriptive period. Older Cases hold that the inclosure must be substantial enough and remain so throughout the prescriptive period of five years and protect all sides of the property claimed from intrusion by cattle or other animals. If the inclosure is so damaged as not to be able to protect all sides of the property from such intrusion, then the Abandoned property investor or claimant must promptly repair that damage inclosure or risk being found by the court to have not met this requirement.

Meeting ANY one of the three alternative, meets the actual possession requirements for adverse possession even though the Abandoned property investor or claimant does not live on the property.

Additionally, California cases have held that although “grazing” or “pasturage” is not mentioned in the Code of Civil Procedure Section 325 reproduced above, it is a method whereby an investor can take actual possession.

Possession Must Be Open And Notorious

Basically, an owner of real estate will not lose that real estate through the doctrine of adverse possession unless the manner in which the investor holds actual possession would provide reasonable notice of that possession if the owner inspected the property. Repairs and improvements made to houses such as painting the ouside of the house, keeping up the outside ground, etc. are examples of such actions.

However, an owner can lose title to real estate through adverse possession even through he or she is never actually aware of the possession because the owner never visited the real estate to discover the improvements made by the abandoned property investor.

Possession Was Hostile, Adverse And Exclusive.

Basically, if the abandoned property investor or claimant is in possession under color of title, then that possession is deemed to be adverse and hostile to the true owner and it is not necessary to offer any further proof.

However if the Abandoned property investor or claimant is in possession under claim of title, then the claimant must prove that the possession was hostile and adverse. The word “hostile” does not mean that the possession was “overtly antagonistic” to the owner; it means simply that such possession is “inconsistent” with that of the true owner.)

It must be shown that the possession was in violation of the true owner’s property rights and that it should give rise in the owner a reason to begin an action to terminate the Abandoned property investor or claimant’s possession or use.

Possession of the property with the owner’s permission is not hostile or adverse. see California Civil Code Section 813 which provides a better legal explanation of this process.

Basically what the California Civil Code Section 813 means that the owner of the property can give permission for the use of that property by the general public or specific individuals. The statute further states that: “In the event of use by other than the general public, any such notices, to be effective, shall also be served by registered mail on the user.

The claimant’s use must also be exclusive, use of that property by the legal owner or any other person except the claimant or abandoned property investor or a tenant of the claimant or abandoned property investor holding possession on behalf of that person will probably defeat a claim of title through adverse possession.

Possession Was Continuous And Uninterrupted For Five Years.

This requirement can be found in Civil Code Section 1007 when read together with Code of Civil Procedure Sections 318, 319, 321, 322, and 325. Most specifically, Code of Civil procedure Sections 325 provides:

“provided, however, that in no case shall adverse possession be considered established under the provisions of any section or sections of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuosly, and the party or persons, their predecessors and grantor’s, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land.”

The requirement does not mean, however, that the investor must be physically on the land every day for five years. For instance, if actual possession of a home or other rental real estate is held by tenants on behalf of the adverse possessor or abandoned property investor, then ordinary vacancies will not disrupt the continuity of the possession.

So, if an investor were to take possession of rental property, for example, and there were normal vacancies that occur, these vacancies would not be considered a violation if the five year occupancy requirement. It also means that the investor does not have to live on the property to make this claim. That means you can claim adverse possession at multiple properties as long as the property is safe and liveable for tenants. That means a positive cash flow while waiting in the prescribed period and also without your physical stay at your property.

Claimant Paid The Real Property Taxes During That Five Year Period.

See Code of Civil Procedure Section 325 which governs this requirement

The Abandoned property investor or claimant must prove that he or she has paid all taxes that have been levied and assessed against the real property claimed during the entire five year period. A failure to pay taxes assessed for any one year will defeat a claim for adverse possession. Then the claimant must also pay any delinquent taxes outstanding for years prior to the start of the claim for adverse possession. For more details please refer to the case of Los Angeles v. Coffey (1963) 243 CA 2d 121,125.

Under the law of the state of California, if a Abandoned property investor meets all the requirements of the law of adverse possession under claim of title, then that person becomes the true legal owner of the real estate that has been abandoned. If the legal title of the real property was held by the former owner with no outstanding liens that superceeds the tax lien, then the investor will have acquired the real estate for, basically, just five or more years worth of back delinquent real property taxes or for just a small investment.

So, What Should A Abandoned Real Property Investor Look For?

The two most important principles of the law of adverse possession is that a Abandoned real property investor wants to see are the following:

1.The ability to take adverse possession under Claim of right or claim of title as opposed to color of title and

2.A relatively short prescriptive period. The period of time the Abandoned property investor must adversely possess the real property before that investor can obtain title to the real property.

You are probably asking yourself, Why?

Because in the state of California, the period or prescriptive period is five years based upon the California Code of Civil Procedure. However in some states the period can last from 10, 15 or 20 years until you get title through adverse possession.

California’s Last Dry Town

The coastal town was proud of its prohibition against alcohol. The town was origi-nally founded as a religious retreat for Methodists wanting to become closer to God by living and worshiping in the beautiful forest that He had created.

At the Howard Street Methodist Episcopal Church in San Francisco on June 1, 1875, a group of people held the first meeting of the Pacific Grove Retreat Association.

Among the major concerns of the group was the sale of intoxicants. The blue laws, often referred to as the “Rules by the Founding Fathers,” dealt with some rather diverse subjects.

They included things such as the behavior that would be allowed on the grounds, the delivery of baggage on Sundays, staying out past 10:30 p.m., smoking on platforms or near public buildings, cursing, and walking around clad only in a bathing suit.

The provisions concerning alcohol were particularly strict.

Even those buying property had to agree to a provision in the lease that prohibited the sale of liquor on the property. This clause also prohibited gambling on such property.

The town became known as the “Chautauqua-by-the-Sea”, a community of culture and learning. The first camp meeting of the Pacific Coast branch of the Chautauqua Lit-erary and Scientific Circle was held in 1879.

The event was fashioned after the Methodist Sunday school teachers’ training camp established in 1874 at Lake Chautauqua, N.Y. Pacific Grove built Chautauqua Hall in 1881, which became known as the Old Chapel or Assembly Hall.

Speakers were said to come from all over the world to lecture at what had become a well-known cultural center in the west. At the end of each season, the town held its “Feast of Lanterns”, which signified the closing of each Chautauqua until the next sum-mer.

In November 1879, after the summer campers returned home, Robert Louis Steven-son wandered into the deserted campgrounds: “I have never been in any place so dream-like. Indeed, it was not so much like a deserted town as like a scene upon the stage by daylight, and with no one on the boards.”

It wasn’t until 1927 that Pacific Grove Retreat decided to become a legitimate town.

Residents of Pacific Grove soon learned that the city’s strict control over the sale of alcohol was hurting them economically.

Tourists were welcome visitors to the Monterey Bay area, and their dollars were im-portant, even to Pacific Grove.

But many of the tourists, not able to relax with a glass of wine at dinner, simply drove to neighboring towns outside the dry area, such as Monterey, Watsonville or Santa Cruz for dinner.

Soon, the tourists began staying at hotels in towns that allowed the sale of alcohol, al-leviating the necessity of driving back to Pacific Grove after dinner.

It didn’t take Pacific Grove’s city fathers long to realize they were losing money to surrounding communities because of the ban on alcohol. Residents began holding meet-ings to discuss the need to legalize alcohol.

Strong campaigns emerged to abolish the “no alcohol” law. Merchants felt they were at a great disadvantage with their neighboring communities, especially Monterey, which was their main competitor.

The Monterey Herald reported, “There are no bars, liquor stores, nor cocktail lounges in Pacific Grove and there may never be any. The original deed restrictions provided for a town whose lips would never touch liquor.”

Leading the fray to keep Pacific Grove dry was Mrs. Elmarie Dyke, who moved to Pacific Grove with her family in 1909.

Mrs. Dyke had graduated from Pacific Grove high school, and later became a school-teacher in the city’s schools. She also reinstated and produced the Feast of Lanterns from 1963 until 1980.

Her strong determination was not enough to keep alcohol out of Pacific Grove.

Pacific Grove Mayor Bob Quinn noted at one meeting that Pacific Grove residents didn’t drink any less than their neighbors. There were just as many liquor bottles in the trash in Pacific Grove, but the people just could not buy it there.

Finally, in 1968, the City of Pacific Grove decided to vote on the issue of whether the laws barring alcohol should be repealed. The measure passed easily on a vote of 3383 to 2269.

Even today the consumption of alcohol in public places in Pacific Grove is restricted to sit-down restaurants where food is served.

Liquor can be purchased, however, at a limited number of closely monitored package stores.

California Bans Non-Disparagement Terms in Consumer Contracts

Can you be sued for saying you did not like a product? Or because a business did not like your negative review on Yelp?

It has happened, and now California lawmakers have stepped in and banned the practice.

The issue involves non-disparagement clauses. A non-disparagement terms in a contract prohibits someone from making truthful, but negative statements about a business, its employees, or products.

For example, if you write a review about your experience at a restaurant saying the service was slow, the food was cold, it was over priced, and give it one star, that is a negative review. These are disparaging comments about the restaurant.

Compare disparaging comments to defamation. If you slander or libel someone that means you have made factual statements about them which are false. Untruthful statements are still against the law in California if defamatory, and you can be sued for making them.

What was happening is bad businesses were seeing negative reviews appearing online on popular websites like Yelp. To stop negative reviews, and to only have positive reviews appear, businesses were including terms in their online purchase contracts which state the consumer cannot make any disparaging comments about the company.

Often, the abusive contract would include a term stating the customer automatically owed thousands of dollars in penalties saying anything negative about the business. The customer could also be required to pay the company’s attorney fees.

When a negative review appeared the company would threaten the consumer with thousands of dollars in damages unless their removed their review. Sometimes businesses actually sued it this had generated some publicity.

The new law in California creates Civil Code section 1670.8. The law states a business can no longer include these terms in a consumer contract. This is a contract for the sale of consumer goods or services. The new law does not apply to business to business contracts.

The new law provides it is illegal to have a non-disparaging clause in a contract, or even in a proposed contract.

A business also cannot try to enforce such a term, or threaten to enforce it.

If the business violates the law the consumer or the California Attorney General can sue. For a first violation the penalty is up to $2500. The penalties increase for subsequent violations.

Additionally, if the violation is intentional, which will usually be the situation, another $10,000 in penalties can be recovered.

These are in addition to any other damages allowed under the law.

Finally, California says this is an important public policy issue and a consumer cannot be required to waive the law. Any waiver is void.

The bottom line is California now imposes stiff penalties for any business who tries to prevent its customers from saying what they really think about their product or service.

Mandatory and Optional Judicial Council Forms in California

Mandatory and optional Judicial Council forms for California are the topic of this article. California Judicial Council forms are adopted as mandatory or approved as optional pursuant to the provisions of California Government Code section 68511. Mandatory forms must be used. Optional forms may but need not be used although the local rules of some of some courts make the use of some or all optional Judicial Council forms mandatory in the courts located in that county so any attorneys or parties involved in California litigation should carefully review their local court rules.

An example of a mandatory form is Form FL-100 which is the Petition form used to request a dissolution, legal separation or nullity in California. An example of an optional form is form FL-145 which is the Form Interrogatories that may be used for family law cases. The first few letters of the form number denotes the type of case for which it was designed. For example, FL means a family law form.

Certain types of California litigation such as family law and probate require the use of numerous mandatory Judicial Council forms.

To determine whether a particular Judicial Council form is mandatory or optional, look at the lower left-hand corner of the first page of that form. This will state whether the form was adopted as mandatory or was approved as optional by the Judicial Council of California.

Optional forms must be accepted by all courts pursuant to California Rule of Court 1.35 so long as they are applicable to the case in which they are used.

A fact that some people working in the legal profession are not aware of is that the lower right corner of the first page of many if not most Judicial Council forms cites the California code sections that are applicable to that particular form. For example form FL-145 mentioned previously cites Code of Civil Procedure sections 2030.10 through 2030.410 as well as Code of Civil Procedure section 2033.710 all of which are applicable to that form. Anyone served with a form may want to carefully review the lower right corner of the first page, and then review all code sections cited. This may prove to be useful in certain cases.

To browse all of the California Judicial Council forms you can visit the California Courts official website at the following link: http://www.courts.ca.gov/forms.htm

The author sincerely hopes you have enjoyed this article and found it informative. If you did enjoy this article please tell others about it.

Sincerely,

Stan Burman

Presumption of Undue Influence in California Dissolution (Divorce) Cases

The presumption of undue influence in California dissolution (divorce) cases is the topic of this article. The presumption of undue influence is due to California Family Code Section 721(b), it arises whenever any interspousal transaction advantages one spouse over the other. It is also applicable in California legal separation cases as well.

The confidential relationship between spouses imposes a duty of the highest good faith and fair dealing on each spouse, and neither may take any unfair advantage of the other. See Family Code Section 721(b).

While the general rule in California is that record title determines ownership, that is not always the case as will be shown in this article.

In a case decided by a California Court of Appeal, the Court of Appeal stated that the trial court properly placed on former wife the burden of proving that a transfer of the former husband’s separate ownership of certain property to joint tenancy was not the product of undue influence; the presumption of undue influence under Family Code Section 721 in interspousal transactions that advantage one spouse to the disadvantage of the other prevails over the presumption under Family Code Section 2581 that property acquired as joint tenancy by a married couple was community property.

Another California Court of Appeal has stated that in a divorce proceeding, where the common law presumption of title, and the community property presumption of undue influence conflict, then the presumption of undue influence prevails. And the same Court of Appeal also stated that when there is a presumption of undue influence, the burden is on the advantaged spouse to prove the transaction was freely and voluntarily entered into with full knowledge of all relevant facts and a complete understanding of the effect of the transfer. And if the advantaged spouse does not meet their burden of proof then the disadvantaged spouse is entitled to a set-aside of the transaction, effectively defeating the record title.

Clearly, anyone involved in a divorce in California, who previously signed an interspousal quitclaim deed transferring ownership of any real property to their spouse, or any other document which transferred ownership of any other property including personal property such as vehicles, etc., to their spouse needs to consider whether the presumption of undue influence is appropriate in their case. If so they should request that the Court set aside the interspousal transfer. The request could be made by an Order to Show Cause or Notice of Motion.

To view the Family Code Sections cited in this article, or any other code sections in California visit the website below.

http://www.leginfo.ca.gov/calaw.html

The author sincerely hopes you have enjoyed this article and found it informative.

Sincerely,

Stan Burman

California Conservatorships

Background

Definition. A conservatorship is used in California where a person cannot handle their own financial matters or take care of themselves physically, so another person is appointed by the Court to handle these matters.

Since 1981, in California a guardianship can only be obtained for someone under the age of 18. Other states, though, use the term “guardianship” for what California now calls a conservatorship.

Terminology. A conservatorship must be established by a court. The person needing the help is called the “conservatee” and the person who receives authority to handle financial, medical and/or other matters for the person needing the help is the “conservator”.

Types of Conservatorships. There are two basic types of conservatorships, a conservatorship of the person and a conservatorship of the estate. Often one conservator fills both roles, but it does not have to be that way.

Conservator of the Person. A conservator of the person makes sure that the conservatee has appropriate food, clothing, shelter, healthcare, social contact and sources of enjoyment.

Conservator of the Estate. A conservator of the estate handles the conservatee’s finances.

A conservator of the estate must use the conservatee’s money and other assets to support (and educate, if appropriate) the conservatee and any dependents the conservatee has.

If the appropriate court order is obtained, the conservator can handle not only the conservatee’s personal finances but his/her business matters as well.

The Process

Starting the Process. A conservatorship is started by filing papers with the Probate Court and giving copies to the proposed conservatee and his/her close relatives.

Obviously, this can be a painful process for the conservatee, who is being required to give up rights to manage his/her finances, make his/her own medical decisions, etc. Still, sometimes a conservatorship is unavoidable.

Court Investigator. A court investigator must talk with the proposed conservatee and others who may know something about the situation.

The Hearing. A hearing date is scheduled and at the hearing the judge decides whether a conservator will be appointed and, if so, who that will be.

Unless the proposed conservatee is unable to attend for medical reasons, the proposed conservatee should be present at the hearing, as the Judge will often want to question them.

Note that it is possible for someone else, usually a family member, to object to the proceeding or propose a different conservator.

Inventory and Appraisal. Within 90 days of the date the Judge signs the Order Appointing Probate Conservator, the conservator must file a report with the Court listing the assets that the conservatee owns.

More specifically, the conservator prepares an Inventory and Appraisal form. If there are assets other than cash, the conservator must forward the Inventory and Appraisal to the probate referee, who is appointed by the Court. The probate referee will appraise the non-cash items, complete the Inventory and Appraisal by inserting the value of those items, and return it to the conservator, who must file it with the Court. The probate referee usually takes four to six weeks to return the form.

The estate is charged a fee for the appraisal, generally 1/10th of 1% of the total value of the conservatee’s estate, with a maximum fee of $10,000. The probate referee may also be able to recover expenses, such as mileage, in addition.

Court Investigations. Once a conservatorship is in place, the Court conducts periodic investigations to confirm that the conservatorship is still needed and that the conservatee is being treated appropriately.

Bond and Periodic Accounting. If the conservator is handling the conservatee’s finances (which is generally the case), the conservator must post a bond and must provide detailed accounts periodically to the Court that list all income and expenditures.

Amount of Bond. The amount of the bond depends on the assets that the conservatee has and his/her annual income, as well as whether a professional bonding company (versus family members or friends) is providing the bond.

Bonding Companies. Note that most bonding companies will not issue a bond unless an attorney is handling the conservatorship proceedings

Status Reports About the Conservatee. Often the conservator must also prepare periodic status reports stating how the conservatee is faring and what the conservator is doing in regard to his/her duties.

Cost. Usually the cost of the conservatorship comes out of the conservatee’s income or other assets.

Fees and Reimbursements for the Conservator.

Expenses. Generally, the conservator is entitled to reimbursement for reasonable expenses incurred on behalf of the conservatee, including expenses to establish the conservatorship and sometimes money spent supporting the conservatee prior to the conservatorship.

With the exception of Court filing fees and premiums on the bond, the conservator must obtain Court approval before receiving reimbursements from the conservatee’s estate.

It is crucial for the conservator to keep receipts and records of all expenses (and reimbursements).

The conservator is allowed to hire help as needed – for example, an accountant – as long as the expense is reasonable in comparison with the size of the conservatee’s estate.

Generally the conservator cannot be reimbursed for postage, photocopies, mileage or the cost of trips to court.

Compensation for Time.

It is crucial that a conservator who wishes to receive compensation for his/her time keep a detailed written record of the time spent on the conservatorship, indicating the date, amount of time and the work done on an entry-by-entry basis.

Courts usually allow a family member to recovery only for time spent on managing the finances of the estate, and not for any time spent acting as a family member (such as visiting the conservatee) or for acting as a conservator of the person.

Courts may not allow compensation for time if little time has been spent on financial matters or if the conservator has not followed court procedures, including filing accountings on time.

Some courts have schedules that set out the compensation that a conservator may receive for his/her time, often a percentage of the conservatee’s estate.

The conservator may only petition the Court for compensation for time after the later of both:

90 days after the Letters of Conservatorship were issued; and when the Inventory and Appraisal is filed.

Alternatives

Powers of Attorney. Unfortunately, the process of obtaining and maintaining a conservatorship is expensive, which is why we strongly urge people to sign powers of attorney that designate who will handle their affairs if they become incapacitated. If the proposed conservatee is mentally competent, by far the best approach is to have him/her sign durable powers of attorney. There are two types of powers of attorney.

Durable Power of Attorney for Finances. One type of power of attorney is a durable power of attorney for finances, which designates which people can handle the grantor’s financial affairs (such as paying bills) if the grantor becomes incapacitated.

Advance Health Care Directive. The other type is durable power of attorney for health care. In California this is now known as an advance healthcare directive. This is designed to allow the grantor’s designated agents to make health-care decisions if the grantor is incapacitated.

Agents. Frequently the spouse (or partner) is the primary agent, and then adult children or friends are the successor agents in case the primary (or subsequent) agent is unable (due to incapacity, etc.) or unwilling to act.

Medical Decisions. Often if a person is incapacitated, medical personnel will allow the family members to make medical decisions if they are all in agreement. It is also possible to obtain court authorization for specific medical procedures, but if authority is needed on an ongoing basis a conservatorship may be more effective.

Representative Payees. Most government agencies allow another person (a “representative payee”) to receive checks for the beneficiary and spend that money on the beneficiary’s behalf. Each agency has its own application procedures and requirements. Many agencies require the representative payee to provide them with periodic accountings.

Community Property. If one spouse becomes incapacitated, the other spouse usually can manage all of the community property that they have.

This will not help if action needs to be taken regarding any separate property the incapacitated spouse has.

Also, even with community property, the spouse with capacity may not be able to roll over Treasury bills, sell stock, or sell or obtain loans against real property.

Again, it is possible to have the court authorize the spouse to make specific transactions, but it may be easier to obtain a conservatorship if ongoing authority is needed.

Trial De Novo Request After Judicial Arbitration in California

The procedure for requesting a trial de novo after judicial arbitration in California is the topic of this article. The main statutes governing judicial arbitration in California are found in Title 3, Chapter 2.5 of the Code of Civil Procedure, specifically Sections 1140.10 through 1141.31, and Title Three, Division 8, Chapters 1 and 2, of the California Rules of Court, specifically Rules 3.800 through 3.830. The plain English name for a trial de novo is a new trial. De novo is actually a Latin expression meaning afresh, anew, or beginning again.

The filing of a timely request for a new trial results in the case being restored to the civil active calendar and proceeding to trial as if no arbitration had occurred.

However parties need to keep in mind that there are certain drawbacks to a new trial request which are briefly discussed below. And those drawbacks can be very costly in certain cases. Proceeding without seriously considering both the pros and cons could prove to be a huge tactical mistake.

A judicial arbitration award in California is final unless a request for a trial de novo is filed within 60 calendar days after the date that the arbitrator files the award with the Court pursuant to Code of Civil Procedure Section 1141.20.

The time limit was only recently increased effective January 1, 2012. The California California Legislature amended Section 1141.20 in 2011.

The 60-day period within which to request trial may NOT be extended pursuant to the provisions of California Rule of Court 3.826.

The law in California requires that the party requesting the new trial must serve a copy upon all other parties appearing in the case.

It is therefore critical that a timely request be filed if a party is not satisfied with the amount of damages awarded, or the type of relief granted in the judicial arbitration.

One of the main drawbacks of requesting a new trial in California is the fact that if the judgment upon the trial de novo is not more favorable in either the amount of damages awarded or the type of relief granted for the party electing the trial de novo than the arbitration award, the court shall order that party to pay certain nonrefundable costs and fees unless certain exceptions apply pursuant to Code of Civil Procedure Section 1141.21.

The author sincerely hopes you have enjoyed this article and found it informative.

Sincerely,

Stan Burman

Secrets to Passing the California Insurance License Exam

Like most States, California requires that you pass a government administered license exam before you can hang your shingle to sell insurance. In addition, you must take up to 52 hours of pre-license training, which thankfully, can now be done online. Separate license exams and training courses are required to sell property and casualty insurance versus life and health policies. And, there is mandatory continuing education required every two year renewal period as well as additional, special training classes needed to sell specific insurance products like flood insurance, long term care insurance and/or annuity investment policies.

If your plan is to thoroughly study the State handbooks, read and read again all the materials from your license course and take a cram course on test-taking, I can almost guarantee you still won’t pass the California Insurance Exam. These exams can be tough, since they are riddled with confusing and convoluted questions . . . the trademark of most government or quasi-government license exams. So what does it take to pass? Well, that’s what we cover in this article. And, there is a method to the madness.

First Off, Be Wary of Advice and Crazy Tips

Here is just some of the “buzz” around taking the State Exam. For the most part, ignore these rants and tips:

“Taking a cram class is all you need to pass” (Not true. See cram courses below)

“I was told to skip every question on the state exam. That way, these same questions are locked in and the computer will not spit out more difficult ones.” (A crazy conspiracy theory).

“A live teacher is the only way to pass. They pinpoint the “buzz” words you need to pass. They tell you things that can’t be put in writing” (Bunk . . . classes are monitored by the State. And, you need more than buzz words to pass).

“Use common sense to answer the exam questions.” (It won’t work).

“By process of elimination, you can get to the right answer.” (Works sometimes, but you would have to know the subject to eliminate the wrong answers).

“I earned 90% on my online practice exams . . . I’m ready”. (A lot of these 90 percenters still fail. There are practice exams and there are practice exams. See below).

“People who take online courses always fail”. (Bunk . . . our online school has a very high passing ratio . . . it’s what you do with the material that counts).

“Study the course materials . . . you will pass” (There is a lot more to it. It may be a variation the material you learned that is being asked).

“Just look for certain “buzz” words for the answer.” (The State knows all the buzz words . . . you’ won’t beat them this way).

California Specific

It may seem obvious to many, but be sure that the courses and exam prep materials you are studying are California specific. There are a lot of generic practice exams and courses available online that won’t prepare you for the State Exam or won’t allow you to even sit for the exam. Sign up with an approved California provider and make sure you are taking the right course for the license you want.

The State Exam

The State requires that you complete specific pre-license training BEFORE you can sit for the State Exam. The Certificates you earn from these courses are your “ticket” into the State Exam which are currently given at state office locations in San Diego, Los Angeles and Sacramento.

On the day of the exam, you need to bring proper identification including a current valid driver’s License, passport, military ID, etc. The State Exam is computer-based. There are 75 questions for the Life Only License; 75 for Accident & Health and 150 for Fire & Casualty.

You must score 70% or better to pass. If you fail, you can retake the exam 3 consecutive times for a fee of $41 each. Your 4th try requires a 30 day waiting period. Of course, if you follow the advice of this article you won’t need to worry about failing.

You can schedule the State Exam online at any time . . . just fill out the required license application. But, you must complete the required pre-license training courses needed for the license you want BEFORE taking the exam. And, you need additional time to tackle the remaining procedures we recommend to prepare yourself. Bottom line? Leave at least three weeks before scheduling an exam date.

Test Taking

There are some universal rules to taking any license exam. Basically, you need to become familiar with the testing mentality.

· Make sure to read every single word in both the questions themselves and the provided answers! There are people who fail simply because they didn’t read the question properly!

· Make sure that you understand the gist of the question itself…what are they getting at in the question? In order to answer a question properly, you must understand the idea behind the question!

· Be familiar with the format of the exam. The State Exam is taken on computer. See a sample of how it works on the State’s website here . . . http://www.insurance.ca.gov/sample-test/Sample_Questions-General.htm

· Don’t rush the exam. You have up to 3 hours for the Casualty or Life/Health Exam. Answer all the questions you know. Flag questions you are unsure of or skip them until later. Watch for words like except or not.

Studying Books, Course Content & State Publications

The State Exam is very broad in coverage. There will be many questions on codes, ethics and other insurance topics that you may never need or experience throughout your insurance career. Nonetheless, you have to know them to pass.

Then there are hundreds of pages of pre-license course materials (your 20, 40 and 52-hour training courses). In fact, the State dictates what needs to be covered in all pre-license courses and they publish “Educational Objectives” for each. Now, you would think that if you studied these courses and the “objectives” real hard you would be prepared for the exam. . .right? NOT. Don’t spend a lot of time here.. Sure, you need to read the materials to earn your Pre-License Certificate(s) and there are basics you can learn from these courses, but it is highly doubtful they will play a major role in helping you pass the State Exam.

Cram Courses

There are also dozens of generic guides and cram courses which say they are designed specifically to help you pass the State Exam. Save your money and time. Sure, some may provide some guidance, mostly on test-taking techniques I discussed above, but you still have to know specific learning points to pass. That cannot be condensed into a small book or even an 8 hour cram course. I know, I have taken these classes and wish I had spent the time studying instead.

An Exam Prep Workbook Is KEY!

OK, we’re down to the key to passing the State Exam. Find a proven Exam Prep Workbook. We cannot emphasize how important this is to passing. It’s almost too simple, yet license candidates tend to dismiss the effectiveness of practices exams. DON’T.

A typical exam prep workbook is jammed with up to 1,000 questions and answers, i.e.practice exams. Of course, there are practice exams, and there are practice exams. As I said, find a proven system and ALLOW UP TO TWO WEEKS TO FULLY COMPREHEND AND RECALL THE QUESTIONS AND ANSWERS IN THEIR WORBOOK. Simply reading the workbook one or two times is NOT ENOUGH. Study and recall EVERY QUESTION at least 10 times or more. If you are getting the same questions wrong, highlight them and study them even more.

Don’t Schedule The Exam Early

Don’t schedule the State Exam until you have time to study your Exam Prep Workbook Practice Exams. Your boss and others may be pressuring you to take the State Exam ASAP after your online training, but until you can recall the questions and answers, your chances of passing are slim

Well, that’s it . . you now know how to pass the Insurance License Exam. But, I have a warning: If your mental focus is just to pass the exam, you need to re-focus. Plenty of people pass their exam only to lose their license or get sued making stupid mistakes. Knowing the answers to a bunch of exam questions is not enough . . . you have to know what you are doing with that license and you need to acquire a sense of responsibility and ethics to win customers and stay out of trouble. While these are not the subject covered here, know that they are as much a part of your career as getting your license. So, refer to your pre-license course materials for basic knowledge and use them for reference often. Always expand your knowledge and keep up on current events in the industry.

I wish you the best of luck in a very rewarding field.