In Lieu of Fines

By: Oakland Lawyer  aka Hon. Élan Consuella Lambert

The following article appeared in The Official Journal of the California Judges Association, Winter 2019 edition.

In lieu of fines, the creation of community services alternatives for youth in the SF Juvenile Traffic Court.

I had the honor of being appointed as an Administrative Law Judge by Governor Arnold Schwarzenegger in September 2010, in Los Angeles County.  While being an ALJ was a lifelong dream, living in Southern California, was not.

I became a Judge Pro Tem (JPT) for the San Francisco Superior Court in 2012.  In 2014, there was an opportunity for the JPTs to preside in Juvenile Traffic Court.  My background as a city prosecutor doing traffic offenses made the idea appealing. It was like riding a bicycle, and I was racing off.

In SF, before a new assignment, you shadow the person who is there.  On my first shadow day, there was a minor charged with fare evasion.  The commissioner assigned community service for the first offense.  At the break, she asked if I agreed with the sentence. Judicial discretion being what it is, I deflected.  She insisted she was interested in my opinion. I told her that in Adult Traffic Court a person convicted of fare evasion, the first time, receives a suspended sentence.  It seems disproportionate to treat the children worse than we do the adults. She was surprised that’s what was happening and agreed that her sentence seemed harsh in comparison.

Not long after that, I started presiding in Juvenile Traffic Court with consistent regularity.  As with any matters I preside over, the goal was fairness, compassion, and consistency; but also, I wanted to make a positive difference in the lives of the students.

One of the things that I have always enjoy about Traffic Court, other than the fast pace and unpredictability, is that it brings people together from all walks of life.  In traffic court, you find every gender, race, religion, national origin, and socio-economic status.

In Juvenile Traffic, most cases are resolved after a plea of no contest; we rarely have trials. The focus then becomes rehabilitation and acknowledgment of the mistake and how to avoid it in the future.

After the defendant pleads no contest, I find them guilty.  From there each case is different. I have a conversation with the student about the events that lead up to the citation and whether other parties were involved.  The students often use the phrase “friend” when discussing their co-defendants. If so, this leads to a discussion on how to be selective in whom you call and consider your friend.

We then discuss their extra-curricular activities, including jobs and their ability to pay.  Often, the students have limited employment and ability to pay. Likewise, some of the parents in attendance have limited ability to pay.  To further complicate things, the probation-run community service program for juvenile traffic defendants in San Francisco was eliminated. Consequently, I tasked myself to come up with no or low-cost alternatives.  Born out of necessity, I have invented a system for assigning “homework” in lieu of fines. Because the “homework” requires a second appearance, I also consider whether another appearance presents a hardship on working parents. Mostly, the parents like the idea of their student being accountable for the “cost” of the citation.

Over the last year, I have come up with several different “homework” assignments, in lieu of fines.

For an early high school student, with a low fine, single count citation that did not involve alcohol and no-point violations, I assign a book report project.  The subject is usually based upon our sentencing conversation about their interests and favorite school subjects. Once they identify a topic that they are interested in, I assign a 300-page book, on that subject.  They are to read the book, provide me a typed report with a minimum of 4 pages, and return for a 5-minute oral presentation on the book. Some students have also included a power point presentation as well. If the fine is higher but still does not involve alcohol or points, I assign a 500-page book or 2 books of 300 pages each.  So far we (me, the clerks, and any attending deputies) have had presentations on psychology, dentistry, and career options that do not involve college degrees. In November, we are expecting to hear an exciting report on cartography, the science of making maps.

The psychology report included a discussion of the Pavlov experiment, the B.F. Skinner Experiment, Maslow’s hierarchy of needs, and the Good Samaritan Experiment.  The student seemed particularly surprised that participants in the Good Samaritan Experiment would avoid helping someone if they were in a hurry. However, he acknowledged that after reading about the Good Samaritan Experiment he would be more likely to stop and help someone in need.  The report on dentistry included the years necessary for a Doctor of Dental Surgery (DDS), but also the additional requirements to become an orthodontist. Despite learning that it takes additional schooling, the student indicated that he thinks helping people be confident through their smiles makes him want to be an orthodontist.

The presentation on non-college track career occupations included becoming a California Highway Patrol Officer, a SFMTA Parking Enforcer, a Painter for the City and County of San Francisco, and a Physical Education Teacher.  The CHP Officer was a surprising choice given that the student’s underlying citation involved a high-speed pursuit. So, for good measure, I also assigned Clean Slate research. His presentation on how to expunge his record also equipped him with information to share about the process with other members of his community.  Additionally, I assigned him to complete a Drug Education Program and the CHP Smart Start Course to improve his driving skills.

One student chose to read Brothers in Arms, by Paul Langan.  The story is about how a Latino teenager, Martin Luna, deals with the sudden and tragic death of his little brother Huero.  The book expanded about how choices, good and bad can have a profound effect on one’s life. The student acknowledged a need to make better choices and avoid the challenges faced by Martin Luna.

For students who are contemplating college, I assign a research project on 3 to 4 colleges.  Usually, I assign one junior college, one state school, and one dream school. If they are already considering one school, it can be included at the 4th option.  The report is required to be a minimum of 4 pages, typed, double space, with font no larger than 14 point and margins no greater than one inch. While pictures are allowed, they are in addition to the 4 pages, not instead of.  The student then returns for a 5-min oral presentation. During the presentation, I generally ask one to three questions and share something about my college experience, or something about one of the schools. I also assign this project to children who don’t think they can go to college.  In that case, the project also includes what it takes to get into the schools they have selected. During these presentations, I tell them about the UC Transfer Admission Guarantee program (TAG).  

For a student who declared his intention to apply to a culinary art academy, I assigned a 4-course meal.  Mindful of the cost, I only assigned the meal be prepared for his Aunt, his legal guardian. The assignment, in lieu of fines, was four courses that he had not made previously.  His written report portion was to provide the recipes, including any he created and to take pictures of the entire meal. His oral presentation included what he learned about making an amuse bouche and that he invited his whole family to participate and they chipped in on additional the food costs. We also discussed staging, where a cook or chef works for free in another chef’s kitchen to learn new techniques and cuisines, like an internship.  I suggested he use his assignment as a resume of sorts with other chefs. In other instances, students have prepared resumes for summer jobs and internships.

A student who is an incoming freshman at a prestigious east coast Ivy League institution indicated during sentencing that he was having difficulty deciding between competing majors.  Accepted to the school of engineering, he was undecided between Chemical and Biological Engineering (CBE) and Operations Research and Financial Engineering (ORFE). Clearly not in need of academic encouragement, I inquired if he had ever met people who had those degrees.  He had not. For his project, in lieu of fines, he was assigned to interview two engineers, one who had each of the degree subjects he was considering. He interviewed an engineer with a CBE degree who currently works for Pfizer doing sales and marketing, with an emphasis in what he described as “corporate development.”  Currently, he reviews other pharmaceutical companies for brilliant ideas with the intention of acquiring them (the company and or the idea) for Pfizer. He also interviewed an industrial engineer from Stanford, who indicated that ORFE is the new name for industrial engineering, which allows for a customizable engineering program that focusses on efficiency and optimization to solve complex real-world problems.  Through his research, he also learned that the classes would be tailored toward business and finance as well as drawing on the other five engineering departments.

Moreover, he learned that many graduates from the ORFE program work in investment banking, management consultancy, financial and economic trading.  His interviewee worked at Hewlett Packard right out of school and currently works at Asurion, a technology insurance company. During his oral presentation, I shared that an engineer friend has explored polyphasic sleeping, to increase his productivity.  He was excited to research more about that and experiment using differing sleep cycles during his freshman year.

Above represents a sampling of the assignments I have given over the last year.  In total, the response has been extremely positive, and the students have demonstrated learning and growth during their presentations as well as a sense of rehabilitation.  After the presentation concludes, I generally offer constructive criticism and positive feedback. In closing, I’m known for saying, “I hope not to see you again, and I mean that in the nicest way.”  The return of students has been rare and on the odd occasion that it has happened, the return was for a citation that preceded the one already adjudicated.

I continue to seek out ideas for new assignments and hope to come up with a system that allows room for all the students to have continued opportunities for community service for traffic infractions.

 

 

To Trust or not to Trust….that is the estate planning question.

Happy 2024!!!

If you know or have met me, I believe in sharing my legal knowledge to help non-lawyers. When I take classes, I take them for my professional improvement and to gain knowledge that the average person in my community (Oakland) may need.

As part of that mission, I often teach classes designed not to sell legal services but to help you determine what services you may need by providing legal information on how the system works. There are great lawyers in California, but as the 201265th lawyer in 1999 and 301110 lawyers admitted to the California Bar as of December 9, 2023, there are more to come. A review of the monthly magazine published by the State Bar tells me that not all of the lawyers before or after me will be great. Every month, they publish stories of lawyers disciplined or disbarred for misconduct. That means a shopper of legal services must be able to select their practitioner with the discernment due any other significant expenditure. Accordingly, if you know what you need, you’re less likely to buy something you don’t, like snow tires, when you live in Santa Barbara and don’t ski or drive to the mountains.

Disclaimer: While some people need trust, there are plenty of people who do not. Like you, I, too, see ads for estate planning services when on Facebook, Instagram, or TikTok. I am also aware that some senior organizations will allow sellers of estate planning services to do free seminars to explain why they need to purchase their estate planning services. Guess whose mother went to one of those seminars? Did you guess mine?

So imagine my shock, surprise, and then horror when MY MOTHER called to tell me she needed trust. As with most people who tell me they need trust, my first question is, for whom? Her response: for you. So, to be clear, my mother has one child (one spectacular child if you’re asking my opinion, not hers). At this seminar, my Mother was convinced she needed a Trust to leave everything to her one child, but savvy enough not to sign up for their services, thinking instead, I would write her Trust. Notwithstanding the conflict of me writing a Trust, where I am the Trustee, the Beneficiary, and the Drafting lawyer, she was dead serious (pun intended).

A bit of background: My Mother has already taken my class on avoiding probate and has finished all the steps (and frankly, she took her sweet time about it). The result is that all of her assets will pass to me through the operation of law and without probate. Assets pass by operation of law when they pass outside of your Will or Trust based on a law that governs ownership. This is true for pensions, retirement accounts (401K, 457 plans, IRA (including Roths), financial accounts (which include saving, checking, brokerage/investment), life insurance, annuities, and vehicles.

In California, we have Small Estate Affidavit procedures. Cal. Prob. Code § 13100. That means if the Estate does not exceed $166,250 in value (if death occurred before April 1, 2022) or $184,500 (if death occurred on or after April 1, 2022). No probate is necessary.

Effective January 1, 2016, Cal. Prob. Code § 5642 allowed Californians to designate on a property deed, known as a Transfer-on-Death deed, who the beneficiary of the property would be at the owner’s death.

The combined effect of Sections 5642 and 13100 and the Probate Code is that if after everything passes by operation of law (savings, checking, brokerage/investment, 401K, 457 plans, IRA (including Roths), life insurance and annuities, vehicles, and your home, condo, farm of 40 acres or less, or a multi-unit building with no more than four units), what’s left must be worth more than $184,500.00 at your death to require probate.

When I started teaching people about these options, the limit was $150,000.00. The people who have $184,500.00 after deducting their savings, checking, brokerage/investment, 401K, 457 plans, IRA (including Roths), life insurance and annuities, vehicles, and your home, condo, farm of 40 acres or less, or a multi-unit building with no more than four units) may need a Trust. First, I’d have to meet someone who does and ask more questions. My mother isn’t one of them.

This isn’t to say there are not great reasons for getting a Trust; there are, and they include but are not limited to: you don’t have children, you have minor or multiple children, parents of adult children with capacity diseases (like Dementia and Alzheimer’s), and blended families among them. I’m saying those situations don’t apply to everyone and certainly not to my Mother and her one child.

This article isn’t about whether or not you should have a Trust; that is an individual decision. My hope is that after reading this, you understand why my Mother doesn’t need one so that you can assess whether or not you need one.

Happy Estate Planning!

P.S. Rather than make excuses for not writing as much as I promised last year, this year, I decided to be like Nike…and Just Do It, and I hope you will stick around and read me.

A Full Traffic Circle

Welcome back!

Fun fact: in the summer of 1997, I was certified by the Oregon Supreme Court to practice law, with Supervision, and boy did I with gusto. I served as a Deputy City Attorney for the City of Dallas, Oregon.

While I had long dreamed of my Perry Mason moment in court, I had never imagined having it as a City Prosecutor. In addition to prosecuting crimes outlined in the city Ordinances, I had concurrent jurisdiction over all misdemeanors involving, alcohol, tobacco, and traffic.

This is where my love of Traffic Court began. I learned the Vehicle Code in Oregon, prosecuted offenders, did Traffic ride alongs and traffic enforcement patrols as part of my training. It was the first time I was able to work side by side with the police. It was also the first time I understood what people meant when they say, “with great power, comes great responsibility.”

I learned to be fair and just. I was able to give second chances, through pre-trial diversions, and see when people made the most of them and didn’t. I learned to trust but verify. I was an insider of a system that many people feared and revered. I loved having an insider’s view. I could see what was right and wrong with criminal jurisprudence. How to be part of the solution and avoid becoming part of the problem.

I learned the value of legal administrative staff and secretaries. My secretary was old enough to be my grandmother and taught me more than any law professor. She knew which charges had been charged up and which charges should be charged up. With her vast experience, she taught me to read between the lines of police reports and see what was there and what should be there. Lawyers always say be nice to the staff in Courts and offices, but they never tell you to learn from them. That is a grave mistake. She was the Della Street, to my Perry Mason. If you have ever watched an episode of Perry Mason, you know, how was lucky I was.

I will be forever grateful, that the City Attorney and Willamette Alumni, Mark Irick, at that time, took a chance on me and Theresa Ozias who mentored me throughout my tenure. They were the lawyers that inspire me to give back daily.

Fast forward to 2012 when the San Francisco Superior Court invited me to participate in their Settlement Conference Officer inaugural class. I was thrilled to answer the call to duty. Having already been appointed and undergone training as an Administrative Law Judge I was excited to engage with the community using my knowledge, skills, and ability. Eventually, I was invited to join as a Judge Pro Tempore. The first two years I did unlawful evictions and small claims. Helping Landlords and Tenants find solutions to their disputes was where my mediation and negotiation skills were impactful. I also enjoyed small claims. The challenge of hearing disputes, researching the law, and issuing decisions were right up my alley. Then they invited me to the Traffic Training.

Home, at last, home at last. The Traffic training was like riding a bike and I was speeding down the road. arraignments, plea bargains, trials, and full calendar handled deftly. After 16 years, I was back in the thick of it.

In the years following, I have done both Adult Traffic Court and Juvenile Traffic Court. Adult Traffic Court, in San Francisco, is a well-oiled machine. Taking the reigns is always made smooth by the incredible clerks, who give the depth and breadth of their vast experience and dedication to the Court.

Having regularly presided over Juvenile Traffic. It is both rewarding and challenging, providing justice for all under the law.

The thing about Traffic Court is it covers every socio-economic group. All races, all ages whether they walk (jay-walking), drive, or speed. It is the great equalizer amongst all. The opportunity to provide a painless (fees notwithstanding) and educational experience while wearing the robe are some of the best moments of my life.

I love that about Traffic Court, it’s why I hope to continue and make time for it whenever I can.

Until then, slow down, full stops at stop signs and red lights. And remember, going with the flow of traffic doesn’t mean you weren’t speeding. The only good speed is God’s speed.

Be well.

What’s new in 2022?

Welcome back!

As promised, I’m back. Thanks for being here. 

So now that we are together, whatever should we cover….the law but of course. Have you heard about the new laws in CA.? Reported 770 new laws are coming into effect this year. Here are a few highlights:

All California residents and businesses will be required to sort their organic waste from the rest, thanks to Senate Bill 1383. The Good news…fines don’t start until 2024, so you have time to adjust. 

The minimum wage has increased to require employers to pay a $15 minimum wage. California businesses with fewer than 26 employees will raise their lowest wage to $15 starting in 2023.

Starting on July 1, 2022, it will be possible for concerned family members, teachers, coworkers, and employers to ask a judge to seize ghost guns from someone they think could be a danger to themselves or others. 

Also, pandemic-era rules allowing the sale of takeout alcoholic drinks will be allowed until 2026, and you can keep ordering cocktails, beer, and wine in outdoor dining parklets for the next five years.

Effective January 1, terminally ill patients no longer have to wait as long to request fatal drugs. The waiting period between the two required requests dropped from 15 days to 48 hours.

Assembly Bill 453 makes the non-consensual removal of a condom during sex, also called “stealthing,” a form of sexual battery. California is the first state to ban stealthing.

You may recall, in 2018, a law passed that required corporations to add more women to their board of executives. The deadline was December 31, 2021. So that means companies with five directors need at least two of them to be women, and companies with six or more directors need at least three to be women.

The penal Code was altered so that spousal rape is no longer treated differently than rape.

Intentional theft of wages by an employer over $950 over 12 months is now classified as grand theft, punishable by up to a year in jail or a fine of up to $5,000. Under this law, wage theft includes tips, benefits, and more.

Well, there you have it.  

I’m back, there are new laws, and I hope to see you again soon.

What’s the 510?

By: Oakland Lawyer

If you are a loyal follower, you probably wondered where I went. If you just found me welcome!

The last post was published in 2019 and announced the publishing of my article statewide to the California Judicial Association. It seemed that there was nowhere to go but up….and I did. But I also dipped down, bumped along, and now it’s 2022.

Recently a friend, http://www.esker-dligon.com, in her blog, quoted Shonda Rhimes saying there is no writer’s block; one just isn’t writing. Well inspired by two great ladies…here I go, here I go,…here…I…go!

For those counting, that’s two separate hip-hop references.

The first year of the pandemic, 2020, was pretty fabulous. I worked out, almost excessively, and shed quite a bit of weight. I started working out and was able to get in some great weekend trips. Am I still working? Heck yes, in new ways and more hours, but the flexibility of working from home combined with the shutdown led to a 24-hour work clock. That wasn’t sustainable, but the results were fantastic.

In the second year of the pandemic, 2021, the cracks began to show. Never great at meal prepping, cooking three meals a day seemed to be a viable alternative. NOT! After about six months, I stopped wanting to cook all those meals every day. I found an excellent keto meal service that delivered, and after another 6 months tired of that. After Thanksgiving, I started planning for the new year, and it all came crashing to a halt, right about the time a guy ran a red light and t-boned me.

So in 2022, I’m working on not losing my fitness gains while rehabbing from the accident, making nutrition ever the more critical. I also have a list of personal (as in non-fitness) and professional goals. Here’s hoping the list is not too lofty. 

Throughout all of the above, my love of the law remains steady. This month, I am participating in the Alameda County Mock Trial competition, open to middle schoolers and high school students in Alameda County. If past years and the first week this year are any indication, our County will be well represented at the State Competition.

Recently someone asked me about all the different ways I volunteer and contribute to my various communities. My reply was….to whom much is given……and the person responded by nodding and snapping. It was a moment of great fellowship, kinship, and recognition from someone who does a lot of community work.

In the meantime, I have found a fantastic resource for legal information that I want to share with you all. The San Diego Law Library (most counties in CA have well-equipped law libraries) has a YouTube Channel, https://www.youtube.com/user/SanDiegoLawLibrary. Their videos include past classes for attorneys (MCLE – Mandatory Continuing Legal Education), which attorneys can take for self-study credits but are also available to anyone wanting to watch. At this writing, there are 60 videos, which provide great information to lawyers and non-lawyers alike.

It’s such a cliche, but let’s keep in touch. I will write, you will read and comment, and I promise not to stay away so long. 

p.s.: If you are new here, 510 is the Oakland Area Code.

March 31, 2018, a State Holiday in California

By: Oakland Lawyer

March 31st is a State Holiday in California commemorating the birth of César Chavez in 1927.  Chavez along with Dolores Huerta, co-founded the National Farm Workers Association.  Chavez is easily regarded as a Latino American civil rights activist.  He employed many nonviolent tactics including strikes and boycotts, to obtain national support in the struggle of farm workers.  As a result, he co-founded the first successful farm workers’ union in the United States. Chávez was president of the United Farm Workers of America (AFL-CIO) until his death on April 23, 1993.

Chávez was born on March 31 in 1927. He was a migrant farm worker from the age of 10. He became active with the Community Service Organization, which helped fight racial and economic discrimination against Chicano residents.

Chávez often credited for oopularizing the slogan “Sí, se puede” (Spanish for “Yes, one can” or, roughly, “Yes, it can be done”), which was utilized in the 2008 of Barack Obama. Although the UFW faltered a few years after Chavez died in 1993, his work led to numerous improvements for union laborers. He has since become an iconic “folk saint” in the pantheon of Mexican Americans.^[3]

Today and tomorrow, we celebrate Chávez and his work on behalf of farmworkers.  As I understand it some state offices are open because the State holiday is Saturday, March 31st. 1.  However, the CA Courts are closed today in celebration.  2.  Of note is that tomorrow is a federal commemorative federal commemorative holiday (Cesar Chavez Day).

.

Footnotes

1. When a holiday falls on a Saturday, employees shall receive holiday credit.
2. If a holiday falls on a Saturday, the Court is closed the preceding Friday. If a holiday falls on a Sunday, the Court is closed the following Monday. (See CCP ” 133-136; Government Code ” 6700 – 6701, California Rules of Court, Rule 1.11

To file or not to file…..that is the question.

By: Oakland Lawyer

Most people think the law is black is white.  However the law is more grey than people realize.  As lawyers, we learn to interpret the law and sometimes are interpretations can vary.  Recently, I was reviewing the City of Alameda statute on rent control and noticed a conflict between the statute and the information provided on the Alameda Rent Program Website. 

On March 1, 2016, the Alameda City Council adopted Ordinance No. 3148, Alameda’s Rent Stabilization Ordinance. Ordinance 3148 created just cause eviction and limitations on rent increases in the City of Alameda.

Specifically,  Section 6-58.30 outlines documents that the landlord shall file with the program administrator. Of note is that this section does not list 6-58.140 B, but does list Section 6-58.155. Section 6-58.140 B, permits evictions for failure to pay rent, with proper notice.  Section 6-58.155 E indicates that the landlord shall file with the Program Administrator within seven (7) calendar days after having served any notice required by Section 6-58.140 a copy of such notice.

Clear as mud….right?  So here’s the breakdown:

Section 30 does not say that you have to file the with the program administrator for a just cause eviction for non-payment.  Section 140B outlines just cause evictions for non-payment.  Section 155E says all notices issued under Section140, for just cause evictions, must be filed.

The City website, as pictured below, says with specificity, that terminations for reasons including, but not limited to, failure to pay rent, do not have to be filed with the program.

Screen shot from Alameda Rent Program website

I can only speculate (lawyer speak for guess) why their website appears to be giving incorrect information that if inaccurate is to the detriment of Alameda landlords.

Here’s the problem though.  After the landlord gives a notice for eviction based on non-payment of rent, called a pay or quit, the landlord can then use that notice as the basis for the legal eviction proceedings; called an unlawful detainer action.  It is a complete bar to the proceedings….meaning the tenant can defend the eviction by pointing out the landlord’s failure to comply with the municipal ordinance by having the lawsuit dismissed.  If the landlord raises that the information was provided by the City of Alameda, that will not prevent the dismissal.  A dismissed unlawful detainer action leaves the landlord open to a claim for wrongful eviction.  Here, in providing inaccurate information, or misinformation, the City of Alameda is creating potential liability for Alameda landlords to be sued by tenants for wrongful eviction because they followed the City’s own website.

The practice of law, advising people, and providing legal information comes with great responsibility.  The greatest being to provide people with accurate information.  It seems to me the City of Alameda has failed in its responsibility to arm its citizens with accurate information.

Bail…..Friend or Foe.

By: Oakland Lawyer

So recently, I had a very interesting discussion with a friend over the bail system in the United States. He is generally a very informed citizen and as such, I enjoy our discussions of law and order.  It is rare to be able to discuss the law with someone whose natural curiosity makes them capable of a discussion with a trained lawyer.  He is the exception and not the rule.  There are times when I think our discussions would make a great podcast, but that’s for another day.

In our most recent episode, we discussed bail in the United States.  There were several factors of which he was shockingly unaware.  Lest, you be caught unaware, let’s discuss bail.

In most jurisdictions, California included, bail is a tricky system that people don’t often understand.  Nationally certain cases have started to call more attention to the effect of our current bail system on poor people.  For example, rapper Shawn Carter (Jay-Z) has started paying bail for low-income individuals being held on Rikers island. He even penned an op-ed piece which appeared in Time Magazine.

Legislation on this issue has been proposed previously without success.  However, recently, The First District Court of Appeal, in San Francisco, ruled in a 48-page decision that 64-year-old Kenneth Humphrey was entitled to a new bail hearing.  Allegedly, Mr. Humphrey’s was arrested on May 23rd on suspicion of stealing $5 and a bottle of cologne.  His bail was set at $350,000.00 and he was unable to afford it.  Accordingly, he has been in the San Francisco County jail since his arrest.

It was reported that the district court said “…the trial court erred in setting bail at $350,000 without inquiring into and making findings regarding petitioner’s ability to pay and alternatives to money bail.”  Additionally, they district court found that the  “[p]etitioner is entitled to a new bail hearing at which he is afforded the opportunity to provide evidence and argument, and the court considers his financial resources and other relevant circumstances, as well as alternatives to money bail.”

To understand why this is significant, you have to understand how bail works generally. Generally, your bail is initially set by the police upon arrest.  It is often argued that the police set bail as high as possible.  Notwithstanding, thereafter bail is often reviewed by a bench officer or judge. In some jurisdictions, the review happens without the defendant’s participation; other times it happens in a formal court proceeding.  It is often cautioned that posting bail before a defendant is brought before a bench officer prevents a meaningful request to reduce the bail.

But let’s assume you were arrested and your bail was set by the police at $50,000.  You have two options: 1) post the entire amount and be released; or 2) contract with a bail agent to pay 10% ($5000) and their office, pursuant to your contract, will post the full bail, enabling your release.  Option number 2 is where things can get tricky.

Let’s say you contract with the bail agent for your 10% or 5000.  As a down payment, you pay 1000 and agree to make payments on the balance.  They will then post the full amount of your bail, in this example $50,000 and you’ll be released.  Let’s also say that 45-days after you’re released, you receive notice that all charges are dropped.  At the time you receive such glorious news, let’s also assume that you’ve only paid half of the ten percent, or $2500.

Well congratulations, your case was dismissed, but you are still responsible for paying the remainder of your ten percent of the bail as contracted.  In the meantime, the bail agent who posted the entire $50,000 either by cash or bond, has their money returned when the charges are dismissed.  As a result, you have no pending charges, but are obligated to continue making payments on your bail.

Worse, if you could not afford bail, in part or whole, you could lose your job and its benefits, housing and suffer untold other consequences.  There are examples where this has happen to people who had charges dismissed. More importantly, there are numerous egregious examples of the bail system failing our country’s poor.  In this case, Mr. Humphrey had a bail hearing.  Unfortunately, his bail was set at $350,000 and without any consideration of his ability to pay or alternatives such as electronic monitoring.  Luckily, for Mr. Humphrey, and perhaps all Californians, his case was appealed.

Accordingly, Mr. Humphrey might have just taken the first significant step in abolishing what people are now calling our nations “debtor’s prison” where poor people are incarcerated pending trial because they are unable to afford bail.

 

Richmond Rent Program (updated)

By: Oakland Lawyer

On Saturday, January 13th, I attended the City of Richmond’s, Rent Program Community Workshop, Landlord 101. I thought you’d like to know what I learned.

The next scheduled workshop is on February 17th, Tenant 101.

By way of background, the Richmond Rent Program was the result of Measure L on the November 8, 2016 ballot.  The program became effective December 30, 2016 and the Rent Program opened their doors on January 3, 2017.

Saturdays workshop was led by the Program’s Executive Director, Nicholas Traylor.  Mr. Traylor was hired July 13, 2017.  He started with a brief background of the program’s ballot inception and included that he has been working in this area for at least 13 years.

The Richmond Rent Board is made up of five members.  They are currently Nancy Combs, Virginia Finlay, Emma Gerould, David Gray, Lauren Maddock. They were appointed by the Richmond City Council on March 21, 2017 and are required to be City of Richmond residents.  Additionally, no more than two members can be persons who own or manage rental property, or realtors.  Mr. Traylor outlined the Rent Board’s ability to hear appeals for the Rent Adjustment Petitions, consider and adopt rent regulations, charge and collect fees, hire an Executive Director, establish the Annual General Adjustment (AGA) and provide direction on long-term program development.  The Rent Board meeting the third Wednesday of each month, beginning at 5 pm in the City Council Chambers.

The next Rent Board Meeting is this week, January 17th.  The Agenda was electronically mailed out on January 11th and included the Compiled Agenda Packet. You can subscribe for notifications of meetings and Agendas. The Rent Board website also contains audio recording of the meetings, if you are unable to attend.  Of note, the calendar includes a Special Rent Board meeting next week, but the agendas and compiled agenda packets have not been published.

Mr. Traylor introduced the staff present.  Unfortunately, I did not do a great job of taking notes of the names. There were several staff present including Cynthia Shaw, Ramona Howell, Magaly Chavez, Vickie Medina and interns Moises Serano and Andrea Zuniga 1.  Mr. Traylor also acknowledged his Deputy Director, Paige Roosa who was not present.

The Richmond Rent Ordinance that became effective on December 30th, 2016 does the following:

1. Limits rent increases to the Annual General Adjustment (AGA), which is 100% of the Consumer Price Index (CPI).
2. Base rents were rolled back to July 21, 2105.
3. Requires Just Cause for unlawful detainer actions, or evictions.
4. Provides for a Rent Adjustment/Fair Return Petition Process.

Properties in the City of Richmond are considered fully covered, partially exempt or fully exempt from the Richmond Rent Ordinance.  Fully covered properties are subject to Rent Controls and Just Cause Eviction protections as outlined in the Richmond Rent Ordinance.  Fully covered properties are multi-unit properties built before February 1, 1995.  Partially Exempt properties are those which have no rent control but are subject to the Just Cause portions of the Richmond Rent Ordinance.  Partially exempt properties consist of subsidized units, including section 8 tenancies, single family homes, condominiums and new construction 2. Fully exempt properties are those which are not governed by the Richmond Rent Ordinance and thus have no rent control and do not require a Just Cause eviction.  Fully exempted from the Richmond Rent Ordinance are properties where the Landlord and Tenant share a kitchen and/or bathroom, single family houses where a small second unit was added with permits and the main house is owner occupied, and senior housing.

The Annual General Adjustment (AGA)

The Annual General Adjustment is the annual cost of living increase allowed, based on 100% of the Consumer Price Index.  The landlord can apply the AGA in September 1st of each year.  Landlords are allowed to “bank,” or defer the AGA increases, but are limited to 5% of previously deferred AGAs.  The 2016 AGA was 3%. The 2017 AGA was 3.4%.  To obtain a valid AGA, the Richmond Rent Ordinance requires that landlords are in compliance with all aspects of the Rent Ordinance, provide the Rent Program with a copy of the rent increase with proof of service within 2-days and applies only to properties subject to the rent ordinance 3.

Maximum Allowable Rent (MAR)

The maximum allowable rent is the maximum rent that can be charged for a Controlled Rental Unit.  The MAR equals the Base Rent + AGA + Individual Rent Adjustments (as approved through the petition process).  The example provided in the workshop was a rental unit with base rent of $1000.00, in July 21, 105.  That unit would be eligible on December 30 2016 (effected date of Measure L) for a 3% AGA.  The same unit would be entitled to a 3.4% increase in September 2017.  The total increase is 6.56% because the AGA is currently compounded interest, not simple.

There was of course the anticipated discussion of market rate and when a landlord can charge market rate.  First, market rate was defined as what the market will bear.  Market rate is allowed in the following circumstances:

1. When there is a voluntary vacancy and a new tenant starts.
2. When the original occupants vacate and only hold-over subtenants remain in the unit.
3. When the tenant no longer lives in the unit as a primary residence.

It was suggested that landlords have any subtenants execute a subtenant addendum  which clarifies that the rent can be increased to market rate if all the original occupants have left.  Currently, the Rent Program does not have that form available.

Just Cause

The Richmond Rent Ordinance allows for eviction in the following circumstances:

1. Failure to pay rent.
2. Breach of lease (requires a warning to cease, at least 5 days, but could be more).
3. Nuisance.
4. Failure to give access pursuant to CCP 1954.
5. Temporarily vacate in Order to undertake substantial repairs.
6. Owner move in. 4
7. Withdrawal from rental market.
8. Temporary tenancy

The Richmond Rent Ordinance requires that any notice of just cause eviction served on a tenant be submitted to the Rent Program within 2 days.  Currently, the landlord must submit an online form on the Rent Program’s website and upload a copy of the notice with a proof of service.

Temporary Relocation Payments 11.100.050/11.102.030

The Richmond Rent Ordinance requires temporary relocation payments when the tenant must temporarily vacate for the landlord to undertake substantial repairs.  The landlord must provide a Notice of Entitlement to Relocation Payment when they provide the notice of termination of tenancy.

The Richmond Rent Ordinance provides for the following per diem payments:

1. $145 per day per household for a hotel/motel.
2. $29 per day per person for food.
3. $1 per day per household for laundry.
4. $28 per day per animal for a cat/$51 per day per animal for a dog

Permanent Relocation Payments 11.100.050/11.102.030

The Richmond Rent Ordinance requires permanent relocation payments when the tenant must permanently vacate due to an Owner Mover-In or a Withdrawal from the Rental Market.  The landlord must provide a Notice of Entitlement to Relocation Payment when they provide the notice of termination of tenancy.

For Owner Move Ins the following payments are required:

Unit type                                                                    Base Amount/Qualified Tenant Households

Studio                                                                         $3400.00/$3950

1 Bedroom                                                                 $5250/$6050

2+ Bedroom                                                               $7150/8200

For Withdrawals of the Rental Market the following payments are required:

Unit type                                                                    Base Amount/Qualified Tenant Households

Studio                                                                         $6800/$7850

1 Bedroom                                                                 $10500/$12100

2+ Bedroom                                                               $14250/$16400

While there were other details provided during the workshop, the above represents a summary that landlords and tenants can use to understand the basics of the Richmond Rent Ordinance.  Kudos to the folks at the City of Richmond’s Rent Program for doing a great job on the workshop and working during a holiday weekend.  I look forward to your future workshops.

Footnotes

1. My apologies if your name is misspelled or not included in its entirety. I’m happy to update it, if you provide me the corrections.
2. New construction is construction with permits and a certificate of occupancy dated  after February 1, 1995.
3. Forms and Notices
4. Requires relocation payment.

The More You Know.

By: Oakland Lawyer

It is much harder than I imagined to make regular contributions here.  In discussing this matter, out in the real world, it was suggested that I opt for shorter, more frequent posts.  To that end, I wanted to share a tidbit I learned recently.

Most people know that they are required to provide proof of financial responsibility to a peace officer.  In fact, insurance companies send out handy little cards for just such a purpose.  Here in California, the law has changed to include that you can use an electronic device (cell phone, tablet and even your laptop).

Failure to provide evidence of financial responsibility most often results in receiving a citation for a correctable violation, or what is commonly called a fix it ticket.  Here in California, if  you are issued a citation for a correctable violation, upon proof of correction the courts dismiss that part of the citation and a 25.00 fee dismissal fee is assessed.

The statute regarding proof of insurance is found in the California Vehicle Code, Section 16028.  Most often drivers are cited for violating subsection (a) when they fail to provide proof of insurance during a traffic stop.

However, in the event of an accident, if you are unable to provide a peace officer with proof of financial responsibility he can issue a citation for subsection (c).  However, the statute says only subsection a is a correctable violation.

I recently interviewed a California Highway Patrol (CHP) Officer who acknowledged that he was aware that subsection c was not a correctable violation.  Additionally, he conceded that at an accident, he could issue a citation under either subsection (a) or subsection (c,) in his discretion.  When I asked why he would cite under subsection c, knowing it’s not a correctable violation, he failed to provide a convincing answer.

After a vigorous discussion on the matter the CHP Officer also conceded that if asked for citation under subsection (a) instead of (c), he wasn’t sure what he would do.

Ladies and Gentleman, that is the best part of discretion.  That one is unable to use it until the circumstances arise.  Imagine, if you will, at the scene of the accident, if you asked to be issued a citation under subsection (a) instead of subsection (c).  Your self advocacy could save you hundreds of dollars.

While I hope that my readers are able to avoid accident, if you are in one, I hope you remember this post.