What do I need to know about a Guardianship in California?

Guardianship is when a court orders someone other than the child’s parent to:

• - Have custody of the child; or
• - Manage the child’s property (called “estate”); or
• - Both.

The information in this article is about probate guardianships. These cases are brought by the person seeking to be appointed guardian or by someone else in the family asking the court to appoint a guardian. If custody of the minor was awarded to a non-parent through the juvenile dependency court, this article does NOT apply.

If Child Protective Services (CPS) is involved, you probably have to go to the juvenile court to find out what you can do. Find out more about guardianships in juvenile court.

A probate guardianship of the person is set up so that the child cab live with an adult who is not the child’s parent, and that adult needs a court order to make decisions on behalf of the child.

A guardianship is not the same as an adoption. Here are some differences:

Types of probate guardianship

There are 2 types of probate guardianship:

Guardianship of the person

In a guardianship of the person, the guardian has the same responsibilities to care for the child as a parent would. That means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. A guardian can be anyone: relatives, friends of the family, or other people suitable to raise the child can ask to be legal guardians.

The guardian is responsible for the child’s care, including the child’s:

• Food, clothing and shelter
• Safety and protection
• Physical and emotional growth
• Medical and dental care
• Education and any special needs

The guardian is also be responsible for supervision of the child and may be liable for any intentional damage the child may cause.

A guardianship of the person is sometimes needed when, no matter how much parents love their child, they are not able to parent.

Maybe 1 or both parents:

• Have a serious physical or mental illness;
• Are in the military and have to go overseas;
• Have to go to a rehab program for a while;
• Are going to jail for a while;
• Have a drug or alcohol abuse problem;
• Have a history of being abusive; or
• Cannot take care of their child for some other reason.

The court will look at what is in the best interest of the child to make sure the child is raised in a safe, stable, and loving environment. A legal guardian can care for a child when the parents are unable to.  If you are a parent, and are fighting against a guardianship, you need to show the court that you are able to parent your child and that:

• You do not have a serious physical or mental illness;
• You are not going to leave the state for any extended period of time;
• You do not have to go into jail or a rehab program;
• You do not have a drug or alcohol abuse problem;
• You do not have a history of being abusive; and
• There is no reason that you cannot take care of your child.

Guardianship of the estate

A guardianship of the estate is set up to manage a child’s income, money, or other property until the child turns 18.  A child may need a guardian of the estate if he or she inherits money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child’s estate.

In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint 2 different people.

The guardian of the estate must:

• Manage the child’s money;
• Make smart investments; and
• Manage the child’s property carefully.

A guardianship of the estate is created to manage a child’s property.
It is needed when:

• The child owns or receives valuable property, like if a child inherited a house or a large amount of money.
• A guardianship of the estate is not needed when:
• A child only owns inexpensive toys and clothing; or
• The child receives social security benefits or TANF/CalWorks (welfare).

If you are not sure if a guardianship of the estate is needed, give our office a call and we can discuss what might be best in your situation.

IMPORTANT: If a guardianship of the estate is needed, it is best to use a lawyer to set it up, and to represent the guardian of the estate. This is because the fiduciary duty (this is the highest duty the law recognizes) owed by the guardian to the child requires that all the laws and rules be followed, and that the child’s assets (property) be protected. A lawyer can assist the guardian of the estate to make sure everything is done correctly.  You can ask that the lawyer’s fees be reimbursed or paid back from the estate, however this must be approved by the court so there is protection for the child.

A Pain in the Butt

California Penal Code Sections 458-464 explain the aspects of the crime called “burglary”. It defines burglary as entering a structure, (or other specified enclosure), with the intent to commit grand or pety theft  or any felony.

According to the Penal Code, a structure could be considered a house, apartment, residential room, or businesses. The law also includes “mobile” housing (campers and trailers), shops, stores, warehouses, cars, boats, airplanes, railroad cars, barns and stables. There is a big distinction between residential burglary and commercial burglary. Residential burglary refers to the burglary of an inhabited home or premise that someone lives in. A commercial burglary refers to a burglary of a business or merchant place. The penalties for a residential burglary are substantially more sever and will count as a strike with regards to the “three strikes law.”

Burglary is considered a “wobbler” offense, which means it may be charged as a misdemeanor or a felony, with the decision left up to the prosecutor. The prosecutor will make this decision based on your criminal history and details of the crime.

California law establishes two types of burglary:  first-degree and second-degree.

State law defines first-degree burglary as “any burglary of an inhabited dwelling.” An inhabited dwelling is any house, vessel, or other property designed for inhabiting and currently inhabited at the time of the burglary. It’s a common misconception that “currently inhabited” means that the property has to have someone living inside at the time of the crime. However, it actually refers to being used as a dwelling at the time of the burglary, even if nobody was actually occupying the property at that time. This is where residential burglary fits in. Second degree burglary, encompasses everything else and usually includes burglary of a business or store.

First degree burglary is always a felony because it is more serious than second-degree burglary. Burglary in the first degree may result in a sentence of imprisonment in state prison for a term of two, four, or six years and a maximum fine of $10,000. Punishment can be increased with longer prison time when weapons were involved, for criminals with prior burglary convictions, or if people were injured during the crime.

Second degree burglary may be charged as a felony or as a misdemeanor depending on the circumstances of the case, and your criminal history. A conviction for a misdemeanor burglary in the second degree cannot exceed a term of imprisonment in county jail for more than one year  maximum $1,000 fine . If you are convicted of second degree burglary as a felony, you face sixteen months, or two to three years in the state prison, as well as a maximum fine of $1,000.

In order for you to be convicted of either degrees of burglary, the prosecutor must prove that you intended to commit a felony at the time you entered the location. Otherwise, you could be charged with a simple trespassing crime if your intention cannot be proved. This can be difficult for the prosecutor to do because it must be proven, beyond a reasonable doubt, that you intended to commit a crime at the time you entered, not after you have entered.

There are ways for the prosecutor to try to prove this intent. For instance, if you walk into a shopping store and have scissors (to cut off tags). This could be used as your intent to commit burglary.

If you have burglary tools with you, it would be reasonable for someone to believe that you were intending to commit a crime. “Burglary tools” include crowbars, slim jims, screw drivers, pliers, and other instruments or tools that you can use to enter a structure and/or assist you in committing a burglary. Possession of burglary tools is a separate misdemeanor under California Penal Code. If caught with these tools, it is likely that you will be charged with burglary and possessing burglary tools.

Keep in mind that you don’t actually have to have committed a crime to be convicted of burglary; only the intent to do so is required to be considered burglary. Furthermore, it is not required that you commit the crime on the same day that you entered the premises, as long as entered knowing that you were going to eventually commit a crime there.

An experienced criminal defense attorney will be able to use a number of defenses to minimize and punishments or possibly have your case dismissed all together. Intoxication, entrapment, and the fact that you did not intend to commit a crime until after you were already there are a few defenses. If you have been charged, or think you might be charged with burglary, call my office at 619-238-1905 for a free 30-minute consultation. You want an experienced attorney on your side in a matter like this.

According to tripit.com the five most stolen items in a drugstore are batteries, cosmetics, film, sunglasses, and, get this, Preparation H.  Go figure!

Although slip and fall cases seem like they speak for themselves, they need a copious amount of investigation and preparation. There are cases where it is obvious to everyone that the owner or coordinator of a facility was negligent in the maintenance area, but without the right preparation and proof, the case will almost always fail.

Attorneys who do not have substantial experience in handling slip and fall cases do not adequately prepare their clients for all important deposition testimony. That is why it is extremely important to hire an attorney who not only knows the law, but who can also anticipate and prepare against all possible defenses that can be raised in such a case.

It is just as equally important to hire an attorney as soon after the injury as possible. This is highly valuable when it comes to the inspection the dangerous area. A practiced trip and fall attorney like myself, will send an expert to the premises right away to have everything examined. The expert will investigate and evaluate the conditions of the premises. By having an expert on the scene early, your attorney will be able to instruct him to diagnose the actual cause of the fall. Simply relying on previously reported injuries to prove your case could lead to the case’s failure. Lack of expert witness’ testimony can significantly reduce your chances of success in a slip and fall or trip and fall case.

Once, assessing your injury details and the premises of the accident, an attorney can push forward with your lawsuit, assuming that you have a valid case. People often assume that just because they fell on someone’s premises, they can instantly sue that person or company. This is not always the case. In fact, you must provide sufficient evidence to prove four necessary elements in this kind of case:

1.  The defendant owned, controlled or operated the premises.

The owner or occupier of the property has a responsibility to maintain the property and fix any issues that may cause harm. Without proving the defendant’s owed duty, you will not be able to win the case.

2.  The defendant knew or should have known of the condition that could cause harm to the public.

If the defendant is shown to have not followed the maintenance practices, it may be possible to prove that there were improper premises management, and it resulted in a dangerous condition. Usually, the defendant will claim to have had no knowledge of the hazard. If your attorney can prove that the defendant failed to properly inspect the property, then constructive notice is established. Failing to conduct a regular inspection does not excuse the defendant’s claim to lack of knowledge.

3.  The condition that caused your harm was dangerous, not just a “minor” defect.

The defendant could and should have taken care of this dangerous condition. Because of their negligence, they created an unreasonable hazard which ultimately caused your injury. A dangerous condition must be proven to be something more than a minor defect that would  typically create no potential  harm.

4.  You suffered injuries as a result of the dangerous condition.

There must be sufficient proof that the dangerous condition could be solely blamed for your injuries.

If you’ve tripped or slipped and fallen on someone’s premises and have experienced measurable pain, it is best to document all conditions and seek treatment right away. We cannot stress how important it is to seek advise from a lawyer as soon as you can, following the accident. Call my office at 619-238-1905 for a free consultation.

Medical malpractice occurs when a healthcare professional breaches the standard of care when providing treatment to a patient.

Although there are many causes that people can handle themselves, medical malpractice is NOT one of them. There are many rules and guidelines that need to be followed and you will need an attorney as soon as you realize that you may have a case on your hands.

Here are the steps to claiming medical malpractice:

1. Find out if you really have a valid medical malpractice claim. In order to be able to file a lawsuit for medical malpractice, there are a few requirements that you will need to meet. You must prove that you and your healthcare provider had a doctor-patient relationship and that there was an agreement that the provider would be working with you. You must also prove that the healthcare professional was negligent and acted in a way that opposes what any other competent healthcare professional would have done, given the same situation. Finally, you must prove that this negligence and  malpractice inflicted injury to you in some way or another.

2. The strongest kind of evidence in these cases are medical records. You want to obtain your medical records as soon as you realize that there was a negligent act. Your lawyer will want these records as soon as possible, so it is strongly recommended to obtain a copy of these before you even consult a lawyer. They will use it to analyze your case, inquire opinions from related medial experts, and to build your case.

3. Once you assess your situation and find that it meets those three (3) requirements, then you possibly have a medical malpractice case. This is when you need to consult a lawyer as soon as possible. This is crucial with regards to the statue of limitations. Gather any information or other records that you may have regarding your situation.

In California, generally, the expiration date to file a claim is one year after the discovery of the act that caused the injury or up to three years from the date that injury occurred. However, there are exceptions (children, cancer, ect…) to this one year rule so you should consult an attorney before assuming that your are ineligible.

Make sure you keep careful records of everything your doctor told you and of any side effects or problems you experienced. You should also keep records of any money you spent or lost as a result of the mistake.

4. After going over your case, your attorney will notify any insurance or medical facilities of your intent to sue. They must get a notice at least ninety (90) days before a suit is filed. He/she will act as you in the sense that you will not have to do any direct conversating or rebutting with them. Once the defending parties receive this notice of intent to sue, they usually try to handle it out of court by offering a settlement. If you are not represented, they will try to take advantage of that fact. However, if represented, your lawyer will act as your safeguard between you and the bullying insurance companies.

5. At this point, your lawyer will go over any “pre-suit notice requirements” that are mandatory before one can file a claim. Pre-suit notice requirements were put in place by the government to try to minimize the amount of frivolous claims placed. This refers to cases that can easily be settled out of court, or cases where there were obvious damages cause by the doctor, which would make it near impossible for the doctor support their case even if it went to court. One of these requirements include the above mentioned requirement to provide notice to the party you are suing.

6. If there is no way to come to an agreement regarding the settlement, or if you are not happy with just a settlement, this is where making a claim would come in. Your lawyer would draft and file a complaint for you. Once this complaint is filed, then the lawsuit begins.

Having supporting documents and qualifying professional expert witnesses is ample for having a strong case. The steps involved in filing a medical malpractice case can be complicated and overwhelming. Retaining the services of an experienced, professional attorney like myself should be your first step in any medical malpractice action. You’ve already been through enough…so why deal with the hassle of a lawsuit by yourself? Contact my office at 619- 238-1905 for a free consultation with me.

Stalking is summarized by the act of repeatedly following, harassing and/or threatening another person to the point that they fear his/her safety or the safety of their family. California’s anti-stalking laws prohibit these acts. Also, victims may also file a civil lawsuit against you for any damages caused by the stalking.

If any of  the above mentioned acts are committed against your “intimate partner” (Fiancé, someone you have or am currently dating, someone you live with, current or former spouse or the parent of your child), it is then considered “intimate partner stalking.” This factor alone can subject you to harsher penalties.

In California, there are strict laws against violators who commit this crime. The prosecutor has discretion as to whether or not the crime will be charged as a misdemeanor or felony. Based on your background history and case specifics, you could be charged with a felony. However, someone will be automatically charged with a felony if they have violated a court-issued protective order, or if they have prior stalking convictions (even if the previous victim is a different person). When someone is being charged with stalking, the prosecutor must prove that the defendant is in fact doing harassing, threatening or intentionally placing fear into someone.

As with all misdemeanors, if you are convicted, you could receive up to one year in county jail, informal probation, and/or a maximum fine in the amount of $1,000. If you are indeed convicted of stalking someone, you could also receive mandatory counseling or confinement in a state mental illness hospital, as well as a restraining order placed on you that prohibits any form of contact with the victim.

Felony stalking penalties may include any or all of the following:

sixteen (16) months to five (5) years in state prison, formal probation, up to a $1,000 fine, mandatory counseling or confinement in a state mental illness hospital, a restraining order placed on you that prohibits any form of contact with the victim, and registration as a sex offender.

Note these are basic penalties. Your penalties may be mitigated or heightened based on specific case details or harm to any victims.

Although stalking is a very serious offense, it is often filed based on false
accusations made out of revenge or other malicious motives. There are defenses that a skilled lawyer like myself can use to get the best possible outcome for you or have the charge dismissed in some cases. I will know how to thoroughly investigate your case as well as the credibility of the alleged victim. Call my office for a free 30-minute consultation. 619-238-1905

Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to competently perform his or her medical duties. It is a type of personal injury. Your damages for the injury, since it is a tort, can include medical bills, pain and suffering, emotional anguish, loss of wages, and even punitive damages in some cases. A tort is a wrongful act, or violation of a right leading to legal liability.

There are different situations that can be considered medical malpractice. A few are:

A doctor’s failure to obtain informed consent. When you undergo a medical treatment, your doctor is required to obtain informed consent to perform this treatment. In order for the consent to be authentically informed, he must have explained the procedure, any potential risks or side effects, and your other options. If your doctor didn’t obtain informed consent, you may be entitled to legal damages.

A doctors misdiagnosis. Misdiagnosis can count as malpractice if a competent doctor would have discovered the patient’s illness or would  have diagnosed differently. If the misdiagnosis injured you, you may be able to file a lawsuit for medical malpractice.

Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. Also, it may also be considered malpractice if the doctor selects a treatment, but administers it incompetently.

To prove that medical malpractice occurred, you must be able to show all of these things:

A doctor-patient relationship existed. For example, you cannot sue a doctor unless there was a relationship. This means you had an agreement: you hired this doctor and he agreed to be hired by you.

The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice.You must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. Remember, the doctor is not required to be the best possible, but simply “reasonably skillful and careful.”

The injury was caused because of the doctor’s negligence. Many malpractice cases involve patients that were already sick or injured. That brings up the question of whether what the doctor did, negligent or not, actually caused the harm.You must show that it is “more likely than not” that the doctor’s incompetence directly caused your injury. Usually, you are required to have a medical expert testify that the doctor’s negligence caused the injury.

The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards, the patient can’t sue for malpractice if the patient didn’t suffer any harm.

Once you are able to show these things, then you may have a medical malpractice issue at hand. It is necessary that you hire a lawyer right away as medical malpractice cases have a statute of limitations.

Your complaint may or may not be taken to trial. Doctors all have medical malpractice insurance, and those insurance carriers will likely want to handle the issue without the courts getting involved. Often, the insurers will offer a lump sum payment as a settlement. If you accept the payment, you will know how much you are actually going to recover in damages, but you must give up your right to sue. If you think that the payment is not reasonable, then you can file a lawsuit.

Because medicine can be subjective, you will want to have several doctors who can determine whether your doctor behaved properly or not. If several other medical professionals believe your doctor acted improperly, this can be grounds to file a medical malpractice lawsuit.

If you believe your situation meets this criteria, feel free to call my office at 619-238-1905. I have over 30 years of experience, as well as over $10 million dollars in awards rendered because of my work.

Needless to say, sometimes we do not make the best decisions when we are young. Unfortunately, depending on the issue, it can follow you into adulthood and affect your future in many negative ways.

But aren’t juvenile records automatically sealed once you turn 18 years old? NO. This is a common myth, but the court system does not automatically seal these records and they are still visable in your background check. If you want them to be dismissed, you have to file a petition yourself. However, there are some cases where some offenses are automatically sealed. These instances occur through what’s known as “deferred entry of judgment” or ”DEJ”, which can be (for certain offenses) applied during completion of a plea agreement.

You can file a petition to have your records sealed on or after your 18^th birthday, or 5 years after completion of your case or probation (for some juveniles) is completed. If the court approves the petition, no one will be able to access those records and they will be completely destroyed 5 years from the date they are sealed.

The benefits of sealing your juvenile records are as follows:

1. Any records of arrest, detention, prosecution and conviction are physically sealed.
2. You can start adulthood on a “clean” slate.
3. The offense basically never occurred.
4. You improve the chances of getting that job you want. Some jobs require live scans and with those, your juvenile records can show up if they are not sealed.
5. Your record can not be unsealed in any civil lawsuit or criminal proceedings. (However, a Juvenile prior, depending on what it was for, might be able to be  used against you as an adult.)

Although most juvenile records may be sealed, there are still some that will permanently follow you the rest of your life. For instance, if you were tried as an adult for an incident that happened before you were 18, this cannot be sealed. Also, the three-strikes law says that some serious or violent crimes committed during your juvenile years can count as strikes in the future. The court can also use a juvenile case to enhance sentencing punishments if the same crime is committed in your adult life. The DMV and court will consider juvenile DUI convictions to determine any future DMV suspension or restrictions.

To seal your record, you must first find out if your record is eligible for sealing or if you even have a record. The best way to do this is to get a live scan. I recommend consulting with me, a San Diego Juvenile  lawyer, regarding the aspects of your criminal past and eligibility to file for  record sealing. Once you know what you are looking at, you can then file a petition with the county clerk where you were convicted. Different counties hold specific procedures to sealing these records.

As a San Diego Juvenile Lawyer, I am experienced in  expungement and record sealing matters. Call us today for a free 30-minute  consultation. 619 238-1905

After being charged with a crime, you’ve met with your attorney and he’s convinced you that it’s in your best interest to enter a plea of “guilty” to the charges in the complaint in exchange for a “more lenient sentence.”

Later you find out the full ramifications of entering a plea of guilty to the charges and wish you had never accepted the plea bargain. Now you want to know if it’s possible to withdraw your plea .

Although this is very hard to do, it CAN be done. Thanks to California Penal Code section 1018, you are allowed to file a motion to withdraw your guilty plea. The penal code states:

Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant’s counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.

So what is required, and how do you know if you meet the criteria? Well, first you need to determine whether you meet the time requirement. As suggested above, the time requirement is

1.  any time before judgment (sentencing);

                  or

2.  within six months after an order granting probation is made if entry of judgment is suspended.

Once you have determined that you meet the time requirement, you must show “good cause” to have your plea withdrawn. How is good cause determined? This is the difficult part, as “good cause” is much harder to prove to the court than to anyone else.

You must be able to show that:

1.  You were not represented by an attorney. If you chose to represent yourself, it is possible you did not fully understand your rights and the consequences of your plea.

2.  You were represented by an incompetent attorney. This is also commonly referred to as “ineffective assistance of counsel.” This defendant will have a reason why they believe their attorney did not do their job well enough. You must be able to show overwhelming proof of errors made by your attorney or that he was ill-prepared or did not thoroughly explain your rights as well as the potential consequences of entering the guilty plea.

3.  There was a language barrier. You will need to show that the interpreter may not have interpreted everything, or interpreted incorrectly, or perhaps no interpreter was provided.

4. You were coerced, pressured or threatened into taking this plea. This can be from anyone (Attorney, prisoners, etc…)

5. You weren’t aware of a professional licensing suspension/revocation. Some convictions can hinder you from obtaining or keeping certain licenses.

If you feel that you meet the criteria, the next step is to contact an experienced attorney to prepare the motion. Because of the degree of difficulty in having these motions granted, it is highly recommended that you hire an attorney who is well-versed in preparing motions to withdraw a plea. A good attorney is key to convincing the court that you do, in fact, meet the criteria.

If you have already been sentenced, or are beyond six months after the order granting probation, you are no longer eligible to file a motion and must take a different route. You would have to file a petition for post-conviction relief under Crim. P. 35(c) in which you are claiming that the guilty plea was entered as a result of coercion and/or ineffective assistance of counsel. If convicted of a felony, you have three years from the date of sentencing to file this petition. If you were convicted of a misdemeanor, you only have eighteen months to file. You might also be able to get your conviction overturned by filing a petition for a writ of Habeas Corpus which is a court order to test whether or not someone is being lawfully detained.

If your motion to withdraw is granted, it does not mean that the charges against you are dropped. Withdrawing the plea merely starts the case over again, at which point, you will be brought back to the arraignment stage. Also, any deals that the prosecution may have presented can be possibly revoked at their discretion.

If you lose this motion, the original judgment and sentence stand as entered. However, you can always file an appeal if you believe you have merit.

Overall, this is a difficult process, but if you believe that you were not adequately represented or fully informed prior to pleading guilty, feel free to call my office for a free 30-minute consultation.