San Jose Attorney - Almaden Times Articles

Just What Is A "Fiduciary Relationship" Anyway And Why Is It Important?

This week's question:

Every once in a while I come across the term "fiduciary duty" or "fiduciary relationship". This seems to apply to several different situations. What does "fiduciary" mean? Does it really apply to different situations or is this just my imagination?

/s/Jennifer J.

Almaden Valley

Dear Jennifer:

First of all, the easy part. No, it definitely not just your imagination. The term "fiduciary duty" or "fiduciary relationship" arises in a broad variety of situations and legal relationships. You will recognize many of those situations and see right away why they are called "fiduciary relationships".

For example, let's assume you are the Administrator of your father or mother's estate. Instead of managing the estate account properly, you take the money to Reno and gamble it away, hoping to double the account for yourself as well as your brother and sister. Stand by for a huge law suit for breach of fiduciary duty.

Or let's assume that as Administrator of that estate you found an account that you "forgot" to report to the Court and "forgot" to mention to your brother and sister. Instead, you put the money in your pocket. Once again, stand by for a suit for breach of fiduciary duty.

My copy of Black's Law Dictionary, Seventh Edition, a well regarded treatise in the field of law, has several excellent definitions in this area dealing with a "fiduciary".

Black's defines "fiduciary" as "one who owes to another the duties of good faith, trust, confidence, and candor. For example, the corporate officer is a fiduciary to the shareholders."

A fiduciary is one who must exercise a high standard of care in managing another's money or property. An example of that would be when a beneficiary of a trust sues the fiduciary for investing in speculative securities and wasting all of the trust fund.

A "fiduciary relationship" is defined by Black's Law Dictionary as "a relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship, such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client."

Fiduciary relationships usually arise in one of four situations:

(1) When one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first;

(2) When one person assumes control and responsibility over another;

(3) When one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or

(4) When there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.

"Fiduciary duty" is defined by Black's as "a duty of utmost good faith, trust, confidence, and candor owed by a fiduciary, such as a lawyer or corporate officer, to the beneficiary, such as a lawyer's client or a shareholder. Also, "a duty to act with the highest degree of honesty and loyalty toward another person and in the best interests of the other person, such as the duty that one partner owes to another."

The California Family Code in §721 provides for general rules governing fiduciary relationships between a husband and a wife, the same fiduciary rules that control the actions of persons occupying confidential relations with each other. "This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other."

If, for example, an attorney would breach his or her fiduciary duty to the client, the client could have grounds for a suit called "breach of fiduciary duty".

If that would arise, the judge might instruct the jury as follows, based upon California Jury Instructions CACI #605:

"An attorney has a fiduciary duty to the client. A fiduciary duty is the duty of good faith and undivided loyalty. The Plaintiff claims that Defendant Attorney harmed the Plaintiff because the Attorney breached his/her fiduciary duty of confidentiality [for example]. To establish this claim, Plaintiff must prove all of the following:

* That the Attorney breached the fiduciary duty of confidentiality [for example];

* That the Plaintiff was harmed; and

* That the Attorney's conduct was a substantial factor in causing Plaintiff's harm.

So, you can see, Jennifer that the word "fiduciary" is a

very important concept, and fiduciaries must act with utmost care and the highest of standards. And these principles do in fact apply in a large variety of situations.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowtiz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Obtaining Copies Of Your Medical Records Should Not Be All That Difficult

This week's question:

I was seriously injured in an auto accident recently. I went to my doctor's office to get copies of my medical records and the office receptionist said that it was their "policy" to keep all medical records in their office. Is there any way I or my attorney can get a copy of those records? And how about other, previous, records pertaining to me and my medical history? And how much can they charge per page for the copies?

/s/David D.

Almaden Valley

Dear David-

I cannot understand why it is so difficult to obtain copies of your medical records from your own doctor's office. You might want to contact your doctor in writing about that, since it is pretty clear that a patient has a right to obtain copies of those records by signing a simple authorization. Maybe the receptionist was new and did not understand.

California Evidence Code §1158 has been around for some time. It provides in part as follows:

"Whenever prior to the filing of any action or the appearance of a defendant in an action, an attorney at law or his or her representative presents a written authorization therefore signed by an adult patient, by the guardian or conservator of his or her person or estate, or, in the case of a minor, by a parent or guardian of the minor, or by the personal representative or an heir of a deceased patient, or a copy thereof, a physician and surgeon, dentist, registered nurse, dispensing optician, registered physical therapist, podiatrist, licensed psychologist, osteopathic physician and surgeon, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist, or pharmacist or pharmacy, duly licensed as such under the laws of the state, or a licensed hospital, shall make all of the patient's records under his, hers or its custody or control available for inspection and copying by the attorney at law or his, or her, representative, promptly upon the presentation of the written authorization."

What many law firms do is to fill out a requisition with a professional copy service. They then go to the doctor's office with a portable copier and make the copies. California Evidence Code §1158 goes on to state:

"No copying may be performed by any medical provider or employer enumerated above, or by an agent thereof, when the requesting attorney has employed a professional photocopier or anyone identified in §22451 of the Business and Professions Code as his or her representatives to obtain or review the records on his or her behalf. The presentation of the authorization by the agent on behalf of the attorney shall be sufficient proof that the agent is the attorney's representative."

What if the doctor's office fails to provide the records for copying? Good question, and that is covered by Evidence §1158 as well:

"Failure to make the records available during business hours, within five days after the presentation of the written authorization, may subject the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney's fees, incurred in any proceeding to enforce this section."

Of course, the patient or attorney needs to pay the reasonable cost of the copies. The cost limits are also set out in Evidence Code §1158:

"All reasonable costs incurred by any person or entity enumerated above in making patient records available pursuant to this section may be charged against the person whose written authorization required the availability of the records."

Good rule, but what if people try to play games with the meaning of "reasonable" costs. That is covered also by §1158:

"Reasonable costs," as used in this section, shall include, but not be limited to, the following specific costs: ten cents ($0.10) per page for standard reproduction of documents of a size 8 1/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to an authorization; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of sixteen dollars ($16) per hour per person, computed on the basis of four dollars ($4) per quarter hour or fraction thereof; actual postage charges; and actual costs, if any charged to the witness by a third person for the retrieval and return of records held by that third person."

And a final point is also covered by §1158:

"Where the records are delivered to the attorney or the attorney's representative for inspection or photocopying at the record custodian's place of business, the only fee for complying with the authorization shall not exceed fifteen dollars ($15), plus actual costs, in any, charged to the record custodian by a third person for retrieval and return of records held offsite by the third person."

So, there you have it, David. Good luck with getting copies of your medical records.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowtiz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Interesting new laws and other changes heading our way in 2008

This week's question:

I have been reading your column for years and I have noticed that you usually write a column in December about new laws and other changes coming up. Can you do that again for your readers this year?

/s/Glen G.

Almaden Valley

Dear Glen-

Thank you for reading this column, Glen. That is appreciated. I try to make it informative and interesting for my readers and part of that goal is to pass on some information about new laws that have been adopted that typically become effective with the new year. Other changes are also always happening, it seems.

It would be nice to have just one year where there are no new laws, but that would be a pure fantasyland larger than Disneyland and Disney World put together. It is a real challenge to keep up with the latest but we will give it a try.

I have selected a few of the new changes that follow. Of course, to list them all would require a lot more time and space than what is allowed.

One of the important changes is that of increased bond amounts for Conservator bonds and Guardian bonds. These court-required bonds are something like an insurance policy and the amounts are going much higher starting 1/1/08, regardless of when the case started. So, readers might want to make sure they have a Durable Power of Attorney for Asset Management that often, but now always, will render a conservatorship proceeding in court unnecessary.

The federal estate exemption remains at $2,000,000 for 2008 and then it goes to $3,500,000 in 2009. Those figures would be doubled for a married couple. The whole system is repealed in 2010, but Congress may change that. Most experts that I read, however, are saying that little change is expected in 2008 because of election year politics.

For my notary friends, many changes are in store for California notaries beginning 1/1/08. These changes were brought about by the legislature in Sacramento passing and Governor Schwarzenegger signing into law Assembly Bill 886 on October 10, 2007.

Notary changes include different forms for notary certificates, including the removal of words "personally known to me" from the statutory acknowledgement and jurat certificates. You will now need proper identification for the notary even though you have been friends for years. And many, many more thumbprints will be needed for the notary's journal related to various documents, not just certain deeds and deeds of trust.

You will also need to state under penalty of perjury under the laws of the State of California that the information is true and correct in the statutory acknowledgement. And much harsher penalties were adopted for certain misdeeds of notaries, largely due to serious fraud in the sub-prime real estate world. All California notaries must become thoroughly familiar with all of these changes if they have not already done so.

Another possible change is in the area of property tax reassessment when a life estate is transferred. Readers of this column will recall the Steinhart v. County of Los Angeles case discussed a few issues back. That Court of Appeal case held that "the transfer of a life estate in real property never constitutes a change of ownership." However, the California Supreme Court has granted a petition for review, so stay tuned for further developments. The issue is now up in the air.

In the area of Family Law, the courthouse in Sunnyvale will now house Departments 82 (Judge Davila) and 83 (Judge Woodhouse), as of January 14, 2008. The address for the courthouse is 605 W. El Camino Real, Sunnyvale, CA 94087. Some existing cases will be transferred there, including two of mine, and new case filings may need to be filed there, depending upon certain zip codes.

There will also be a Family Law Department in Morgan Hill when the new courthouse is completed there, expected to be sometime in 2008. I am sure our south county friends will appreciate that.

So, there you have it, Glenn, some of the highlights in new laws and other changes for the new year. Best wishes for a healthy and Happy New Year!!

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com . If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowtiz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

California Supreme Court To Hear Case About Patdown Searches At Football Games

This week's question:

I read online this past week something about the California Supreme Court will decide about the legality of patdown searches at football games. Is this true? Do you know anything about this? I have a real problem with those patdown searches every time I go to a 49er game-which is all the time.

/s/Ernie E.

Almaden Valley

Dear Ernie-

I am with you, Ernie. It is irritating every time I go to a Raiders home game at the Coliseum in Oakland-which is also all the time. (Missed only two home games in Oakland in 30 years.)

Now, back to the legal issues. You may recall that back on July 27, 2007, I wrote a column in this paper entitled "Patdown Searches Before You Enter the Football Stadium May Be OK". The case involved long-term season-ticket holders who filed suit to have the patdown searches stopped. The name of the case is Sheehan v. The San Francisco 49ers, Ltd.

If you wish, you can read that Almaden Times column by going to my website, www.almadenvalley.lawyers.com . On the home page, click on "Times Articles". The next screen will be "San Jose Attorney-Almaden Times Article". Scroll down a few articles to "July 25, 2007" and it will be on your monitor.

The trial court in the Sheehan v. 49ers case held that the plaintiff season-ticket holders did not and could not state valid grounds for a suit because they did not and could not demonstrate that they had a reasonable expectation of privacy under the circumstances upon being searched at the entry to the football stadium.

Later, the Court of Appeal for the First Appellate District, Division Four, agreed and upheld the trial court and said in effect that patdown searches are OK in those circumstances.

Toward the end of the column I wrote that: "A note of caution: the case was decided very recently so I would imagine there is a chance that it could be taken up by the California Supreme Court. If that happens, I will try to be on the lookout for it and keep you posted."

Good thing I wrote that, since the plaintiffs in that suit filed a Petition for Review with the California Supreme Court that was granted on October 10, 2007.

The statement of issues as stated in the California Supreme Court web site reads as follows:

(1) Did ticket holders of the San Francisco 49ers football team impliedly consent to the team's policy of conditioning admission to its stadium on submission to a patdown search when they purchased season tickets with knowledge of that policy?

(2) If so, did that consent extinguish any reasonable expectation of privacy with respect to the searches as a matter of law, such that the trial court was not required to consider the justifications in support of the policy or balance plaintiffs' privacy interests against the team's countervailing interests?

What this means is that the legality of the patdown searches in that case will more than likely be decided by the California Supreme Court. This may take several months because of the briefing period required, oral argument, and then submission for decision.

It also means that the decision of the lower court is vacated, i.e., set aside, so that the Court of Appeal decision cannot be cited as precedent. Under California Rules of Court, Rule 8.1105.(e), the lower Court of Appeal opinion is no longer considered published if the Supreme Court grants review.

If you are very interested in following this case closely you can learn of the outcome in the California Supreme Court by signing up for email notification of all pertinent proceedings, including the announcement of the decision. (And best of all, it's free and you will not be put on countless spam lists!)

Go online and enter: http://appellatecases.courtinfo.ca.gov/. Select "Supreme Court" and then click on "Search". Enter the California Supreme Court Case Number: "S155742". Here you can see the case information and the issues the California Supreme Court will decide.

At the bottom of the page, click on "Click here" to request automatic email notifications about this case.

You can then select which actions are of interest to you. If you are only interested in reading the decision of the California Supreme Court, select the boxes "Notice of Forthcoming Opinion posted" and "Disposition Filed". (On this page you can also remove your email from any notifications.)

After you register as outlined above, you will receive an email very promptly from the Court web site(Notify@jud.ca.gov). This email will confirm your request and will ask you to verify your email. You will need to verify your email within 24 hours of your request for notification. (It's really quite simple-if I can do it, you can do it!)

It is impossible for me to predict the outcome of this case, but I do know that from a lawyer's point of view and a fan's point of view, it is very interesting, to say the least. I guess it's also possible for the United States Supreme Court to hear the case later on, but that may be a long shot. Stranger things have happened in the legal world, though.

As I said before in the earlier Almaden Times column, I will try to be on the lookout for later developments and keep my readers up to date on that very interesting topic.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Situations Where You May Not Represent Yourself In Court

This week's question:

In your last column, you mentioned that a person may sometimes represent himself or herself in court "in pro per". You also mentioned that there are a few situations where this is not allowed-but that was a topic for another day. I am really curious as to just when and why a person cannot represent himself or herself. So, can we make that "another day" now?

/s/Dylan D.

Almaden Valley

Dear Dylan--

Thank you for reading this column, Dylan, and thank you for your question. It is appreciated. "Another day" has arrived.

First of all, let's tackle the phrase, "in propria persona" or "pro per" for short. This is a Latin phrase meaning "in one's own person", according to my Black's Law Dictionary, Seventh Edition.

You also see the term "in pro se" (pronounced "proh say" or "proh see"), from the Latin, for oneself; on one's own behalf; without a lawyer. For example, the defendant proceeded "pro se". This is also according to Black's Law Dictionary, Seventh Edition.

Sometimes you can represent yourself and sometimes this is not allowed. The following are the usual situations when you cannot represent yourself:

* Guardian

* Conservator

* Trustee

* Personal Representative

* Probate fiduciary

* Corporation

* Guardian ad litem

* Unincorporated association

If you are applying to the court as one of the parties on the above list, you may not act as your own attorney in most cases. The above list is shown on the court form that is used for a Substitution of Attorney-Civil. This form has been approved by the Judicial Council of California for mandatory use. It is form number MC-050, and the latest revision is January 1, 2007.

You can see this form and other court forms on the Judicial Council web site by clicking on: http://www.courtinfo.ca.gov/forms/.

That will give you the home page. In the form list, you can enter form MC-050 or you can enter the name of the form, Substitution of Attorney-Civil.

The above-referenced Judicial Council web site is sponsored by our government, so you should not encounter any advertising or be put on any junk email lists. (No offense intended for my advertising friends-it's just that on most days now spam is overwhelming.) Other commercial companies as well offer various services relating to court forms. Your favorite search engine can lead you to many of these companies.

As stated on the Substituion of Attorney form, you should seek legal advice before you apply to the court to represent yourself. Representing yourself can have serious legal consequences, so it is advisable to see your own attorney before that step is undertaken.

As to the "why" a person may not represent himself or herself in the above categories, the reason is that you may not actually be representing yourself, but others. For example, a trustee is listed, since the person may then be representing others, such as beneficiaries. And a corporation is a separate and distinct legal entity from the person, so that when a person is representing a corporation, he or she must ordinarily be an attorney.

Most of these rules make sense, Dylan. I hope I have shed a little light on a few of them.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Patdown Searches Before You Enter The Football Stadium May Be Ok

This week's question:

I have often wondered as my family and I go into a football stadium whether those patdown searches are legal. It seems to me that they are really an invasion of privacy. It's one thing when we need to go through a metal detector but it's quite another when someone else is touching your body. Isn't this an invasion of privacy? Have there been any legal cases on this? Do we have any alternatives? This makes me sick.

/s/Marie M.

Almaden Valley

Dear Marie:

If it's any consolation, Marie, it makes me sick too. Every time we go see our favorite team that wears silver and black and plays football at the Oakland Coliseum we now need to undergo a patdown search. You would think that there's got to be a better way to enforce security in this high-tech world of ours.

That being said, yes, there has been at least one case involving a local team where the patdown search issue went to court. The case is entitled Sheehan v. The San Francisco 49ers. It was just decided on July 17, 2007.

In the Sheehan/49er case, Daniel and Kathleen Sheehan, season ticket holders for 40 years, filed suit against the 49ers for a violation of privacy, based on the team's patdown policy. According to the case, the patdown policy was mandated by the National Football League ("NFL").

In the fall of 2005, the 49ers instituted a patdown inspection of all ticket holders attending the 49ers' home games at Monster Park as a condition for entry to the games. The patdown searches were promulgated by the NFL, who concluded that NFL stadia are attractive terrorist targets based on the publicity that would be generated by an attack at an NFL game.

The patdowns were conducted by private screeners who, according to the NFL mandate, were instructed to physically inspect by "touching, patting, or lightly rubbing" all ticket holders entering the stadium.

The 49ers' specific practice consisted of screeners running their hands around ticket holders' backs and down the sides of their bodies and their legs.

Officers of the San Francisco Police Department stood nearby during these inspections. Daniel and Kathleen Sheehan are 49ers season ticket holders and were subject to patdowns during the season before each home game at Monster Park.

In December 2005, the Sheehans filed suit against the 49ers, alleging that the 49ers breached their privacy rights, in violation of the Privacy Initiative. As the Court of Appeal stated, the Privacy Initiative is found in Article 1, §1 of the California Constitution. It provides:

"All people are by nature free and independent and have inalienable rights. Among these are . . . pursuing and obtaining . . . privacy."

Unfortunately for the Sheehans, the trial court in common jargon tossed their suit out of court, ruling that they could not state a case under the facts as they alleged. The 49ers had filed a "demurrer". This is basically a motion that says even though we assume everything is true in your suit, you still haven't stated a case.

The Court of Appeal agreed with the trial court and basically said the Sheehans cannot state a case for invasion of privacy due to the patdown searches. The Court of Appeal held that ". . .the Sheehans cannot demonstrate that they had a reasonable expectation of privacy under the circumstances. . ."

The Court also stated that the Sheehans have no reasonable expectation of privacy because, by attending the games, they had advance notice of the patdown policy and thereafter impliedly consented to the patdowns by voluntarily purchasing the tickets and attending the games.

The Court concluded by saying that rather than submit to the patdown the Sheehans had the choice of walking away, no questions asked.

You can read the Sheehan v. 49ers case for yourself by logging on to the following link: http://www.courtinfo.ca.gov/opinions/documents/A114945.PDF. This is an advertising-free web site that contains legal opinions from the Court of Appeal of the State of California.

A note of caution: the case was decided very recently so I would imagine there is a chance that it could be taken up by the California Supreme Court. If that happens, I will try to be on the lookout for it and keep you posted.

In the meantime, Marie, it looks like the patdown search at the football stadium is permissible. I don't like it any more than you do, but it looks like we are stuck with it, at least for now.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com

(with "Almaden Times Article" in the subject line), fax at (408)268-6502, telephone at (408)268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how Mr. DeVries can help you? Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

A Citizen's Arrest Might Be Possible But

This week's question:

I was wondering about this situation.  Do I, as a private citizen, have the right to arrest someone if he or she commits a crime in my presence?  What are the ramifications if the arrested party is found not guilty?

/s/Justin J.

Almaden Valley

Dear Justin:

The basic right to make a citizen's arrest goes way back in our country's law, even back to the English common law.  I have read that citizen's arrests are still legal in every state but the requirements vary from state to state.

In California, you might want to take a look at California Penal Code §837.  This law states:

"A private person may arrest another: (1) For a public offense committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence."

Of course, a citizen may need some help in making the arrest, so California Penal Code §839 provides that "Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein."

As a practical matter, then, what you would do is to tell the person you are arresting them and then report this to the local police department.  After that, presumably you would sign a criminal complaint against the arrested party and attend various court proceedings.

By the way, many statutes only refer to the male gender "he" or "him" but obviously include the female gender "she" or "her".  The practical problem often is that there is significant cost involved to amend a statute to make it gender appropriate, and legislatures often have better things to do with our tax dollars, in their opinion.

So, in short, in California it looks like a private citizen can arrest another person for a misdemeanor (i.e., a less serious crime) committed in his or presence and for a felony (more serious crimes) even outside one's presence.

That doesn't’t mean that you should do so at the drop of hat, since you may leave yourself wide open for a civil suit for money damages.  The arrested person may have grounds for a civil suit against you for false imprisonment because of your citizen's arrest.

If the falsely-arrested person could prove certain things, you may face criminal proceedings yourself and very possibly a civil judgment for lots of money due to the false imprisonment, damage to reputation, general damages for pain and suffering, humiliation, medical and incidental expenses, loss of earnings, and possibly substantial punitive damages based on your net worth.

Punitive damages could be assessed against you if the falsely-arrested person could prove that you arrested him or her because of deliberate malice and oppression and without probable cause.  You could also be on the hook for all attorney's fees the person had to pay to get them out of the false arrest charges, including the arraignment and trial.

It might be better in the long run for you to report any wrongdoing  to your local police department and let the professional police officers take care of the problem.  They have extensive talent and training to deal with criminals of all kinds and are good at protecting all of us.  That's their job and they tend to take their job quite seriously.

Good luck, Justin.  I hope that this information is helpful to you.  You might want to proceed with caution when it comes to arresting someone.

/s/Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com <mailto:don@almadenvalleylawyers.com> (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Driving Without Driver's License Could = Vehicle Impoundment for Up to 30 Days

This week's question:

I was having a cocktail with a girl friend of mine the other evening and she was telling me that if I were arrested by the San Jose Police for driving without a driver's license that my car could be locked up, towed away, and even impounded for 30 days.  Is this true?  This is outrageous!  You would think this is Russia or something.  Please tell me about this right away.

Nicole N.
Almaden Valley

Dear Nicole:

I'm afraid your friend is right.  Of course, we all know that you shouldn't drink and drive, but the law about seizure and impoundment of the vehicle for up to 30 days for driving without a driver's license puts some teeth into the law.  And the law was just upheld by the Court of Appeal.

The case is entitled Samples v. Brown, and it was decided by the First District Court of Appeal on January 11, 2007.  (For my attorney friends, the citation is 06 C.D.O.S. 431.)  The case arose in Sonoma county.

In short, the Court held that statutes permitting the impoundment of vehicles driven by unlicensed drivers or used in dangerous activities such as speed contests are constitutional.

The two statutes involved were California Vehicle Code §14602.6 and §23109.2.  Although the trial court found the two provisions unconstitutional, the Court of Appeal said they were OK and passed constitutional muster.  (The California Supreme Court may still rule on the issues involved.)

The first statute, CVC §14602.6 authorizes and regulates the impoundment of vehicles driven by persons without valid driver's licenses.  If a person is driving a vehicle without a valid license or in violation of a driving restriction, a peace officer is authorized to arrest the person and seize the vehicle and the "vehicle so impounded shall be impounded for 30 days."

The registered and legal owner of a vehicle that is removed and seized under subdivision (a) or their agents shall be provided the opportunity for a storage hearing to determine the validity of, or consider any "mitigating circumstances" attendant to, the storage.

In certain circumstances, the impounded vehicle must be released to its registered owner, such as when the vehicle has been stolen or when the driver reinstates his or her driver's license or acquires a driver's license and proper insurance.

Certain other provisions apply to motor vehicle dealers, bank, credit unions, and other financial institutions as well as rental car agencies.

The second statute, California Vehicle §23109.2, authorizes and regulates the seizure and impoundment of a vehicle involved in a speed contest.  This statute provides that when a peace officer determines that a person was engaged in such an activity, his or her motor vehicle may be seized and "[a] motor vehicle so seized may be impounded for not more than 30 days."

As with the first statute, a registered and legal owner of a vehicle seized pursuant to this law are entitled to a storage hearing to determine the validity of the impoundment.

Also as with the first statute, the vehicle shall be released in certain circumstances, including when the vehicle was stolen, the registered owner did not authorize the person involved in the speed contest to use the vehicle, when the vehicle is owned by a rental car agency, or when criminal charges for engaging in a speed contest or other unauthorized activity are not filed or are dismissed.

In its ruling, the Court of Appeal found that the statutes were not unconstitutional in that the phrase "mitigating circumstances" was not unconstitutionally vague.  And the Court also found no violation of the separation of powers doctrine.

You can read the Samples v. Brown case yourself by going online to http://www.courtinfo.ca.gov/opinions/documents/A112343.PDF. This is the California Court of Appeal web site where you can view and print out the case if you wish.  You can even do so without putting up with all the junk email and getting on multiple advertising lists.

So, good luck Nicole.  I hope you don't drink and drive and I would recommend always and without exception having a valid driver's license.

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Tis the Season to Think in Terms of Legal Holidays

This week's question:

With the Christmas holiday just past and the New Year's holiday rapidly approaching, I was wondering whether there is a definition of a legal holiday. How many legal holidays are there? If I wanted to promote a day to become a legal holiday, how would I do that?

Jack J.

Almaden Valley

Dear Jack:

Your questions are good ones, Jack. It seems to me that there are two types of legal holidays, state and federal. Most of them are the same, but there are some differences. State legal holidays are usually established by the State Legislature, in our case in Sacramento. The bill would then be signed by the Governor and would become law.

Unfortunately, what we have is something like a patchwork quilt when it comes to finding the legal definitions. You would think that all the legal definitions would be in one nice, central compact area, but not so. California state holidays are referred to in two or three codes, Civil, Civil Procedure, and Government, as well as California Rules of Court.

§7 of the California Civil Code states that "holidays" within the meaning of this code are every Sunday and such other days as are specified or provided for as holidays in the Government Code of the State of California.

§12a of the Code of Civil Procedure provides in part that "holiday" means all day on Saturdays, all holidays specified in §135 and, to the extent provided in §12b, all days which by terms of §12b are required to be considered as holidays.

Of course, the legal definition of a holiday has importance when it comes to many related activities, such as legal holiday paid time off pursuant to an employment contract or meeting deadlines that fall on a legal holiday. For example, if a person was served with a summons and complaint and had 30 days to answer the suit, if the 30th day deadline fell on Christmas, the deadline would be extended to the next working day.

And then there are "judicial" holidays (when the courts are closed) governed by California Code of Civil Procedure §135 referred to above. That authority provides that every Saturday and the day after Thanksgiving Day is a judicial holiday as well as the days listed below.
Government Code §§6700-6720 cover holidays in this state, including:

• Every Sunday
• January 1st
• The third Monday in January, known as "Dr. Martin Luther King, Jr. Day"
• The third Monday in February ("Presidents' Day")
• March 31st known as "Cesar Chavez Day"
• The last Monday in May (Memorial Day Observed)
• July 4th (Independence Day)
• The first Monday in September (Labor Day)
• September 9th, known as "Admission Day" (but this is not a "judicial holiday")
• The second Monday in October ("Columbus Day")
• November 11th ("Veterans Day")
• 4th Thursday in November (usually) ("Thanksgiving")
• December 25th ("Christmas")
• Good Friday from 12 noon until 3 p.m.

There are special rules, too, for when some (but not all) of the holidays listed above fall upon a Sunday. In that case, the Monday following is a holiday. You can see how some of those special rules are set out by reading Government Code §6700 and following by logging onto: www.findlaw.com. Head for California statutes and enter that number. The various sections will be in front of you with a couple of mouse clicks. The same would be true too for the Civil Code and Code of Civil Procedure sections referred to above.

There is also the possibility of an "optional bank holiday" when any closing of a bank because of an extraordinary situation is called for as provided in California Civil Code §7.1. Let's hope we don't have one of those anytime soon.

If you would be interested in establishing a new holiday, you would need to contact your State Representative in Sacramento for a new State of California holiday to be approved or your Congressional Representative in Washington D.C. for a new federal holiday to be approved. It wasn't too long ago, for example, that the Martin Luther King family and other supporters promoted the establishment of a legal holiday in honor of Dr. King.

Donald J. DeVries

Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com (with "Almaden Times Article" in the subject line), fax at (408) 268-6502, telephone at (408) 268-9500, or mail at 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation.

Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.