Legal Myths Debunked: Circumstantial Evidence & Hearsay

1. Circumstantial Evidence Can Be Just As Powerful As Direct Evidence

If you regularly watch legal television shows or movies, you are probably familiar with the phrase “circumstantial evidence”. The phrase is almost invariably used in legal dramas to imply that evidence is weak, or even to imply that circumstantial evidence is not true evidence at all.  For example, in a criminal courtroom drama you may hear something along the lines of, “Ladies and gentlemen of the jury, you must find my client not guilty because the prosecution has only offered circumstantial evidence that he committed murder.”

The legal reality is totally different; circumstantial evidence or “indirect evidence” is extremely common and it can be just as powerful as direct evidence when proving a case. In fact, one of the first things you will be instructed as a juror is, “As far as the law is concerned it makes no difference whether evidence is direct or indirect…” (California Civil Jury Instruction 202 “Direct and Indirect Evidence”).

So what is circumstantial evidence? For starters, the counterpart of circumstantial evidence, called “direct evidence”, is evidence that can prove a fact by itself, without the juror having to rely on any other fact or inference. To illustrate imagine that a lawyer asks a witness during trial whether or not it rained in Santa Cruz on Monday, October 23, 2017, and the witness responds, “I saw it rain in Santa Cruz on October 23, 2017. I saw water falling out of the sky and felt it land on my face.” The witness personally saw the rain and felt it land on him. No inference was necessary; it’s direct evidence of rain.

Circumstantial evidence is indirect and requires a reasonable or logical inference or deduction. To illustrate circumstantial evidence imagine the same question about whether or not it rained in Santa Cruz on Monday, October 23, but the witness responds, “I didn’t personally see it rain because I was working inside all day. However, I saw my co-workers come into the office soaking wet with umbrellas and rain jackets. When I drove home that evening, there were puddles on the road.” The witness just provided circumstantial or indirect evidence that it rained because the witness did not personally see it rain. However, the witness saw other people with umbrellas, rain jackets, and saw puddles on the ground; all logical and reasonable deductions that it had rained that day. 

Circumstantial evidence is extremely common, and is probably far more common than direct evidence in most cases. For example in an employment pregnancy discrimination case an employee will probably never be able to offer direct evidence of an employer’s discriminatory motive, (i.e., the business owner’s testimony, in court, “Yes. I fired Lucy because she’s pregnant! I can’t stand pregnant women!”) However, the same employee may be able to provide lots of powerful circumstantial evidence of discrimination, such as the short proximity of time between Lucy’s termination and the employer’s initial awareness of the pregnancy, the employee’s positive performance history and history of promotions, the employer’s deviation personnel policies allowing pregnancy leave and prohibiting discrimination, and testimony from other terminated pregnant employees who were also fired by the same boss; all are powerful and circumstantial forms of evidence.   Don’t balk if you hear evidence characterized as circumstantial.

2. Hearsay Is Often Times Admissible Evidence

Most non-lawyers understand that there is a legal concept called “hearsay” and understand there is an evidentiary prohibition against admitting hearsay into evidence. While it is true that there is a general prohibition against hearsay, there are dozens of exceptions to the general rule which allows hearsay as evidence. In fact, the exceptions are so numerous and so common that the exceptions to hearsay nearly swallow up the rule against it.  

The topic of hearsay evidence is a complicated one, however, the legal definition is simple “Evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted”. In other words, 1) the statement being offered as evidence was said out of court, and 2) the statement is now being offered in court as factually true.

To illustrate hearsay, imagine the same hypothetical as earlier, where a lawyer asks a witness during trial whether or not it rained in Santa Cruz on Monday, October 23, 2017, and the witness responds,  “I didn’t personally see it rain because I was working inside all day. However, my co-worker came into the office told me that it had rained all morning.”  Objection! Hearsay! The witness has offered an out of court statement from his co-worker (“that it had rained all morning”), which is now being offered for the truth of the matter asserted, (that it rained in Santa Cruz on Monday, October 23, 2017).

Remember, however, that there are dozens of exceptions to the rule against hearsay. Just because something is hearsay, do not assume that an exception would not apply and that it would still be inadmissible in court.  The same statement could be admitted into evidence under one or more exceptions to the rule against hearsay.

3. Testimonial Evidence Is Powerful Evidence

There are several categories of evidence in California including, documentary evidence (writings), demonstrative evidence (demonstrations), real evidence (objects), and testimonial evidence (statements given under oath with personal knowledge of the subject matter).

Terminated employees typically do not have access to evidence other than their own testimony about what happened. This is because terminated employees are usually terminated abruptly and are instantly denied access to the emails, calendars, notes, and other documents that refute their employer’s allegations. However, many employees incorrectly assume that their own testimony is inherently inadmissible and not helpful. An employee’s own testimony about their performance or the circumstances of their termination can be extremely powerful evidence. Just because you are terminated does not mean that you lack evidence to prove your case.

Similarly, once a lawsuit is filed employees have access to a very powerful right called “discovery” which is the court-compelled sharing of relevant information. Thus, terminated employees regain the right to relevant documents and other evidence once a lawsuit has been filed.

Brian Mathias represents exclusively employees in all aspects of California employment law. Do you have a question about California employment law or the evidence required to prove a case? Contact www.BrianMathiasLaw.com

Mueller v. Taylor Swift Part II: More Legal Takes for Non-Lawyers

Taylor Swift won her legal case brought by fired DJ David Mueller Mueller who sued the singer after she and her employees allegedly told Mueller’s employer that Mueller, “grabbed [Taylor Swift’s] buttocks beneath her dress” during a photo shoot. A professional photograph of the moment in question can be viewed here.

Mueller sued Taylor Swift for defamation and “tortious interference with his employment contract”; that is, that Taylor Swift’s allegation about the butt grab was fabricated, that she wrongfully pressured the radio station to fire him, causing Mr. Mueller three-million dollars in damage. In response, Taylor Swift counter-sued Mr. Mueller for assault and battery (the intentional, harmful and/or offensive touching of her person without her consent). Taylor Swift won and was awarded $1.00, as she had requested.

There have been lots of neat legal takes since the publication of Part One of this article:

5.      Taylor Swift Won “Summary Judgment”

At the end of Muller’s presentation of his evidence supporting his claims against Taylor Swift for tortious interference with his employment contract (called his “case-in-chief”), Taylor Swift submitted a “motion for summary judgment”. In short, a motion for summary judgment (called a “MSJ” by lawyers) is an argument that in light of all the evidence, that there is no longer any dispute on the facts and therefore one person must automatically win. If a motion for summary judgment is granted, the “moving party” (here, Taylor Swift) automatic wins the issue and the jury does not get to decide the claim.

In this case, Taylor Swift argued that even after Mueller’s presentation of evidence, the undisputed evidence was that she did not personally influence Mueller’s termination of employment. In other words, Taylor Swift did not cause Mueller to be terminated. The MSJ victory was a mixed bag for Swift because Mueller’s claims against Taylor Swift’s mother and employees still went to the jury and were not automatically won. Even after the MSJ victory, Taylor Swift could have still been found “vicariously liable” for the acts of her employees (the legal principal of "respondeat superior"). In other words, Taylor Swift was still on the financial hook for any wrongdoing…assuming Mr. Mueller prevailed. Swift’s claims for assault and battery against Mueller still went forward after she won MSJ.  

This was Taylor Swift’s second summary judgment victory. The first summary judgment motion tossed out Mr. Mueller’s claim for defamation (the publication of a disparaging statement that causes reputational harm) for not being filed within the legal deadline or “statute of limitations.”

California employees should note that motions for summary judgment are extremely common in employment discrimination, wrongful termination claims, and wage-and-hour class actions. Motions for summary judgments are always big consequential battles involving lots of legal work and preparation.

6.      Mr. Mueller’s Attorney Took A Big Gamble in Closing Argument

Closing arguments (both sides’ final arguments to summarize their version of the case for the jury) were dramatic. Mueller’s (male) lawyer argued that Taylor Swift’s visible reaction was not consistent with a person who had just had her butt grabbed. Commenting on the photo Muller’s attorney said, “Look at her face, is that the face of someone who just had her butt grabbed? Is that the face of someone who is upset?” Muller’s attorney made a big gamble in making this argument because the eight person jury, six of whom were female, may have found it offensive.

The attorney’s inference –while arguably plausible- assumes that all persons would have a uniform, split-second visible reaction when being groped on camera. For example, some people may react in immediate visible disgust, while other people may freeze in absolute panic and shock, others still may have a delayed reaction caused from absolute disbelief of Mueller's outrageous behavior.  Similarly, Taylor Swift testified that she did not want to draw immediate negative attention and spoil the entire event for the rest of her fans at the photo shoot.  Moreover, why would Swift –now a proven victim of a sexual assault- want to compound the already horrible experience and go through additional public humiliation in the media after creating a scene? Swift's testimony is also consistent with the fact that it was Muller who initiated the lawsuit against Swift.

It is common for jurors to be interviewed by lawyers after a verdict is reached. It will be interesting to see how the jury reacted to Muller’s closing arguments and if it had any influence.

7.      The Jury Deliberated for Under Four Hours

The jury deliberated for less than four hours before reaching a decision (“verdict”) against Mueller, and wrapped up the same day as closing argument. This is interesting because some juries will take several days or even much longer when deciding a case (called “deliberating”). Generally speaking, it is very bad for plaintiffs (in this case, Mueller) if the jury deliberates for just a few hours before reaching a verdict. This is frequently a sign that the Plaintiff will lose. 

The quick jury deliberation was also an indication that that there was probably not a lot of disagreement among the jurors on essential facts, including the disputed issue of Mr. Mueller’s credibility. As predicted in Part One of this article, Swift’s attorney latched onto Mr. Mueller’s destruction of a secret recording in closing argument, referring to him as a, “Story telling evidence destroyer.”  

Lastly, the fact that the jury reached a verdict the same day as closing argument may be an indication that the jury wanted to finish the case and go home rather than come back for an additional day of deliberation. It is generally bad for plaintiffs when jurors are eager to go home because it is often easier to simply find in favor of the defendant.  

8.      The Plaintiff Wants to Take A Polygraph

Mueller is still adamant that he did not inappropriately grab Taylor Swift and he has stated that he can pass a polygraph (lie detector) test to establish his innocence. Readers may be surprised to learn that, with some exceptions, that polygraph tests are generally inadmissible in federal court as unreliable scientific evidence. Absent an agreement with Swift’s lawyers (called a “stipulation”) Mueller probably would not have had a chance to enter polygraph results into evidence even if he had taken one.

Even if Mueller takes and passes a polygraph test, it will be too little too late. The legal principal of res judicata (pronounced “rez joodi kata”) would bar Mueller from re-litigating his claims against Swift. In other words, plaintiffs are not allowed multiple bites at the apple. Mueller is also barred from presenting new evidence, including polygraph results, if he appeals the verdict.

Celebrity trials like Mueller v. Swift  always get a lot of publicity. But most of the time the interesting legal issues never make the headlines!

Brian Mathias is a California plaintiff’s employment lawyer and a former assistant professor of constitutional law in Santa Cruz, California. Brian represents employees in all aspects of employment law including discrimination, wrongful termination, unpaid overtime, and class action litigation. www.brianmathiaslaw.com

Mueller v. Taylor Swift: The Legal Take for Non-Lawyers

As many pop music fans are aware, Taylor Swift got sued. Former radio DJ David Mueller was terminated after he allegedly, “grabbed Taylor Swift’s buttocks beneath her dress” during a photo shoot at a June 2013 event. A professional photograph captures the very moment in question and can be viewed here. Mr. Mueller denies ever grabbing Taylor Swift.  

Mueller then sued Taylor Swift for defamation and “tortious interference with his employment contract” for three million dollars; that is, that Taylor Swift’s allegation about the butt grab was fabricated, that she wrongfully pressured the radio station to fire him, causing Mr. Mueller three-million dollars in damage.

In response, Taylor Swift counter-sued Mr. Mueller for assault and battery (the intentional, harmful and/or offensive touching of her person without her consent). Taylor Swift is only seeking $1.00 in nominal damages, but is seeking attorney fees and punitive damages. The trial is underway now.

1.       First Legal Take: The Wheels of Justice Turn Slowly

It has taken over four years for this matter to go to trial. The alleged assault and battery occurred in June 2013. Now, over four year later, in August 2017, the trial is underway. There are a variety of circumstances that can delay trial. However, it is common in California for trials to occur years after the underlying legal dispute and injury occurs.  Appeals of any verdict, which are also common, will further delay the finality of any jury verdict by additional years. The wheels of justice do turn slowly.

2.       Second Take: Mr. Mueller Destroyed Important Evidence

Shortly after Taylor Swift’s accusations against Mr. Mueller surfaced, Mr. Mueller was interrogated by his bosses about the incident. Unbeknownst to his bosses, Mr. Mueller secretly recorded the two hour conversation. Mr. Mueller allegedly admitted at the meeting that he may have touched Taylor Swift’s buttocks but that it was “incidental”. 

Mr. Mueller then stored the secret audio recordings on an iPhone, a laptop computer, and an external hard drive. However, even after contacting a lawyer to sue Swift, Mr. Mueller gave away, lost, and/or destroyed all the electronic devises and no longer has the recording. No one but Mueller has heard the recordings.

In response, Taylor Swift filed an order for “sanctions” (meaning a request to impose a penalty) against Mueller for the bad faith “spoliation of evidence”. Taylor Swift won her motion for sanctions, and as a result Mr. Mueller will be cross-examined in front of the jury on the issue of why he destroyed highly relevant evidence after litigation was contemplated. While this line of questioning may not ultimately make the tabloid headlines, it will undoubtedly be a top trial highlight for Taylor Swift’s attorneys who will have a field day on this issue. Mr. Mueller will be lucky to prevail in light of this issue alone.

As a lesson from this case, employees should never secretly record conservations with their bosses. It is a crime in California to do so. Next, prospective litigants should preserve all evidence, good and bad. Destroying evidence will naturally cause jurors to infer that the evidence was destroyed because it was very harmful for their case, especially if the evidence was objective in nature (such as a tape recording or photograph). Similarly, California jury instructions permit jurors to distrust weaker evidence when stronger evidence can be produced, as was the case here.

3.       Why is T-Swift suing for just a buck?

Taylor Swift is suing her alleged groper for just $1.00… well, sort of. A person may sue for what are called “nominal damages” meaning the Plaintiff may not have not suffered much actual harm, but that a token amount of nominal damages should be awarded as a symbolic gesture. As a famous example, President Teddy Roosevelt sued and won six cents in nominal damages against a newspaper publisher who falsely claimed that, “Roosevelt was getting drunk… and not that infrequently.” The former president really just wanted to prove a point to protect his reputation.  

However, even if Taylor Swift wins nominal damages of just one dollar, she could still argue for and possibly obtain “punitive damages” (damages awarded to punish the wrongdoer’s particularly despicable conduct). A case involving a sexual assault could generate very large punitive damages against Mr. Mueller, particularly in light of Ms. Swift’s graphic testimony where she described the incident. Similarly, Ms. Swift could win her attorneys fees. Attorney’s fees could be in tens of millions of dollars after four years of contested litigation with a celebrity-level trial team.

4.       The Photographic Evidence Is Damning

A key piece of evidence of in the trial will be the photograph that captured the very instant in question. It may be viewed here. Jurors in any case are allowed to draw “reasonable inferences” from evidence and apply common sense. The photograph in question shows a grinning Mr. Mueller with his arm and hand behind Taylor Swift’s lower back noticeably near her bottom.  In this writer’s testimony opinion, it will be very difficult for Mr. Mueller to prevail in light of this photograph, particularly in light of the spoliation of evidence issue and the testimony of Taylor Swift. Perhaps Mr. Mueller was hoping for a quick settlement against deep pockets when the case commenced, but has now bitten off more than he can chew.

Brian Mathias is a plaintiff’s employment law attorney and former assistant professor of constitutional law in Santa Cruz, California. Brian represents employees in all aspects of employment discrimination, defamation, and wage-and-hour class actions.

What does "negligence" legally mean? Personal injury law 101.

Everyone has heard of the infamous McDonald's’ hot coffee case and Erin Brockovich. But most people still don’t know the four basic elements of negligence law, also called “personal injury law”.  All four elements must be proven by the plaintiff (the injured person) to establish negligence against the defendant (the wrongdoer) to recover damages for the plaintiff’s harm. The basic concepts are straightforward, even though most people do not learn about them unless they go the law school.

Element One, Duty:

The first element of “duty”, simply put, means that the defendant had an obligation, standard of care, or “duty”, to act in a reasonable, prudent, and safe manner towards the Plaintiff and to not cause them harm. For example, a driver of a car owes a duty to other drivers and pedestrians on the roadway to operate their vehicle safely and to obey traffic laws.

Element Two, Breach:

A plaintiff must next show that the defendant violated or “breached” their duty to act in a reasonable, safe, and prudent manner. For example, a driver who speeds 90 miles per hour down the highway, with their headlights off, in the middle of the night has “breached” their duty to other drivers to safely operate their car.  

Element Three, Causation:

The plaintiff  must also show that they were harmed because of  the Plaintiff’s breach of duty. California’s jury instructions phrases the requirement this way, “the defendant’s negligence was a substantial factor in causing plaintiff’s harm.” A rear-end car accident may easily “cause” whiplash, neck pain, and a broken bumper.

Element Four, Damages:   

Lastly, the plaintiff must establish that they were harmed or “damaged” as a result of the defendant’s negligence. In personal injury law, damages include lost income, mental and physical pain and suffering, and medical expenses and care.

These four rules of negligence can be applied to any situation, such as car accidents, bike accidents, or a slip and fall at a store.

To illustrate the  basic elements of negligence, take the case of Mike and his professional landscaper, Jared. Mike has persistent low-back pain and regularly hires Jared to mow his grass. On 4/20/2017, Jared arrives at Mike’s house in Santa Cruz under the influence of marijuana. Shortly afterwards, Jared runs over Mike with his ride-on lawn mower while Jared is distracted. As a result, Mike receives lacerations, misses one-week of work, has large medical bills, and has a new fear of heavy machinery.  He continues to have low-back pain.

Mike has a nice case of negligence against his landscaper, Jared. Jared owed a duty and standard of care to his customers, including Mike, to safely operate his landscaping equipment. Jared breached that duty when he operated the mower while intoxicated. Mike received cuts and wounds in the accident which were clearly caused by being run over, resulting in medical bills and lost work. However, Mike had existing back pain before the accident occurred and therefore, Jared may successfully argue that he did not cause harm to Mike’s back. Mike may seek damages from Jared in the form of money for missed work, his medical bills, and importantly for the physical and mental pain and suffering caused by the trauma of being run over.

Don’t be fooled; in California, there are hundreds of nuances, exceptions, and special laws that apply to each of these four basic elements. Personal injury law is complex.  However, the basic principles should be understood by the general public.

Have you been injured in Santa Cruz or Monterey County as a result of someone’s negligence?  Contact the Law Office of Brian Mathias.

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Legal Myths 101: The Difference Between Robbery and Burglary

Many people, and even the Santa Cruz Sentinel and other larger newspapers, use the words “burglary” and “robbery” synonymously. This is incorrect. The words describe two separate and different crimes.

The legal meaning of burglary is the “entering of a house [or other structure] with the intent to commit theft.” (California Penal Code Section 459). Burglary does not involve the use of violence or threat of violence to accomplish the theft.

The legal definition of robbery in California is very different from that of burglary. It is defined as “the taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by force or fear.” (California Penal Code Section 211). Robbery necessarily requires violence or threat of force and a confrontation between two or more people, while burglary does not.

To illustrate the material difference between these two definitions, take the case  of Milo.

Milo has a  bad crack cocaine habit. To fuel his addiction, Milo decides to break into Acme Jewelry Store on Pacific Avenue in Santa Cruz late at night while no one is inside. Milo breaks into the store, smashes a display case, and steals three Rolex watches. He then runs away with the watches.

Milo is guilty of burglary, not robbery. He did not take the watches from another person, nor did he use violence or the threat of violence. An empty store or vacant house does not get “robbed” it gets “burglarized”.

The misapplication of these very common words is a good reminder that non-lawyers should not perform their own legal work, especially on a matter as important as your own employment.  

Mold Gold! Finally Some Good News for California Landlords

Tenant complaints about mold are among the most feared by landlords. The four letter word “MOLD” instinctively invokes fears of million dollar lawsuits, deadly illness, and expensive renovations.  Mold in rental housing can be a real danger and should be taken seriously by landlords and tenants. However, some tenants will make false or exaggerated claims of mold for the sole purpose of delaying an otherwise lawful eviction.

In response, in a very rare move, the California legislature enacted a law favorable to landlords, SB 655 & Civil Code 1941.7. The new law describes what landlords and tenants are obligated to do when mold exists, and when the presence of mold renders housing uninhabitable.

First, the mold growth must be “visible”. While this may seem like a common sense requirement, tenants in the past have solely relied upon questionable air tests to claim that dangerous levels of non-visible mold exist.

Second, a health and safety or building official must determine that (a) mold actually exists and (b) that the mold endangers the health of the occupants. This requires that a city or county official be notified of the perceived problem and that they  independently determine that mold exists.

Third, landlords are not responsible for mold that is minor or found in areas that accumulate moisture as a part of their properly functioning and intended use. For example, mold that exists in showers, bathrooms, or window sills would not render housing “uninhabitable”.

Fourth,  the landlord is not responsible if the existence of mold is caused by a tenant failure to clean or use household appliances, like using a bathroom vent, opening a bathroom window, or using a chemical like bleach to kill the mold.

Lastly, the tenant must allow access to the landlord to clean up any reported mold. Tenants cannot claim that mold exists in their rental property and then refuse the landlord entry to fix it.

The new law still prohibits slumlords from renting fundamentally disgusting, uninhabitable housing. A rental property with a genuine mold problem could still render it uninhabitable and expose landlords to a personal injury lawsuit. Tenants still have a plethora of rights that make any eviction very tricky and highly technical. However, the guidance  provided by the new law should prevent tenants from making a last minute, bad faith complaint about mold simply to frustrate a otherwise lawful eviction.

Finally some good news for California landlords!

Are you a Santa Cruz, Capitola, Scotts Valley, or Watsonville landlord with a mold problem? Call the Law Office of Brian Mathias. www.BrianMathiasLaw.com

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Commercial Tenancies 101: Five Things to Know

California law treats commercial tenancies very differently from residential tenancies. Here are five important differences that should be taken into account by commercial landlords and also by any business owner who rents their commercial space.

1. The Rental Contract Often Controls, Not Public Policy    

The California Legislature enacts new protections for residential tenants every single year. These protections must be followed by all residential landlords, despite whatever contract or Landlord-Tenant Agreement exists between the parties. In other words, the public policy will control even if a written landlord-tenant agreement conflicts with California public policy.

However, far fewer public policies apply to commercial tenancies. For example, while California law mandates that all residential landlords must provide provide a rental home with the basic necessities like plumbing, locking doors, and electricity, no such requirement exists for commercial landlords and tenants. Commercial landlords and commercial tenants are free to agree by contract on far more aspects of their business relationship.

As a result of this difference, it is very important for commercial landlords and commercial tenants to have a comprehensive written, commercial tenancy agreement that covers all the frequent areas of disagreement and tension between landlords and tenants.

2. No 60-Day Notice Required

In residential tenancies, a month-to-month tenant who has lived at a rental property for one year or longer must be provided with at least 60 days written notice before their tenancy is terminated. However, no such protection exists for commercial tenants. Month-to-month commercial tenants (meaning a tenant who does not have a fixed term lease) must only be provided with 30-Days Notice, regardless of how long they have rented.

As a consequence, even long-established businesses that have rented at a particular spot for decades can be asked to leave in just 30-Days. This result is devastating for retail businesses who have a customer base familiar with a particular store location and who may have to relocate hundreds of thousands of dollars in inventory within just a few weeks. Read about this real life eviction of multiple Watsonville businesses who were threatened with eviction in just 30-Days. 

3. No “Exact Amount of Rent” Rule

Unlike residential landlords who must precisely state the exact amount of unpaid rent in a 3-Day Notice to Pay Rent or Quit, commercial landlords may reasonably estimate the amount of unpaid rent when issuing a pre-eviction notice. Commercial landlords may overestimate the unpaid rent by 20% and still prevail at an eviction lawsuit (called an “unlawful detainer”).

4. Partial Rent Payments Are Allowed

In a residential tenancy, a landlord will often lose their legal standing to evict a tenant if they accept a partial payment of delinquent rent. This unfortunate result typically means that a landlord receives no rent from a tenant during an eviction (which may  be a 35 day process).

However there is no rule for commercial tenancies. Landlords may accept partial payments in rent after service of a 3-Day Notice and even after filing a lawsuit without waiving their right to evict the tenant. (See California Code of Civil Procedure Section 1161.1, subd. (b)(c)).

To illustrate this rule, take the following example. Mike the residential tenant leases a house in Aptos from his landlord, Jared. When Mike fails to pay Jared his $2,000 rent on the first of the month, Jared serves Mike with a 3-Day Notice to Pay Rent or Quit. Within the three days, Mike offers Jared a partial payment of $1,950.00, $50.00 short of the amount due. Jared would lose his right to evict Mike if he accepts the partial payment. If he accepts the partial payment, he would have to re-issue a new 3-Day Notice and start the process all over again. However, this would not be the case if Mike was a commercial tenant. Jared could accept the partial payment and still evict Mike for failing to pay the full $2,000 rent.

5. No Security Deposit Limits

Residential landlords in California are legally limited in how much they may charge as a security deposit. Landlords may demand a security deposit of up to twice the monthly rent for for an unfurnished property (for example, $4,000 if rent is $2,000) and up to three-times the monthly rent for a furnished property ($6,000 if rent is $2,000).  However, no such agreement applies in the commercial context. Landlords and Tenants are free to agree by contract to whatever amount they want.

Are you a Santa Cruz County commercial landlord or commercial tenant? Call the Law Office of Brian Mathias for a free consultation. 831.531.7141

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Rental Agreements: Five Things to Know and Mistakes to Avoid

All landlords and tenants should have a written contract that controls their relationship called a “rental agreement,” “rental contract,” or a “landlord-tenant agreement”. This especially includes landlords who provide free rent to friends or family members or landlords who have unorthodox landlord-tenant relationships.

For landlords, having a well drafted, written agreement in place makes it easier and less expensive to evict a tenant in the event of a failure to pay rent or if the tenant refuses to leave. For tenants, a rental agreement can protect you from greedy or pushy landlords.

Here are the top five things to know about rental agreement provisions in California.

1) Anti-Marijuana Clauses

Many residential landlords in Santa Cruz and Monterey Counties fall victim to renters who convert homes into illegal marijuana grow operations. We are not talking about a recreational puff or two, but the indoor and outdoor production of marijuana as a cottage industry. This is very prevalent in the Santa Cruz mountain communities of Boulder Creek, Bonny Doon, and Ben Lomond. Marijuana grow operations were the alleged source of recent house fires in Felton and a house explosion in Aptos.

Santa Cruz landlords are encouraged to include language in their rental agreements that expressly forbid the cultivation of marijuana indoors or outdoors. Landlords may also include a no-smoking clause in their rental agreements or language that forbids renters from committing crimes on the property. The breach of any of these agreements could support evicting a tenant by a 3-Day Notice to Terminate Tenancy.

2. No-Subletting Provisions

Subletting occurs when a tenant rents the property to a new tenant who temporarily takes over the rental space. The original tenant then becomes a quasi-landlord. From a landlord’s perspective, subletting is generally a bad idea because the tenant, rather than the property owner, will usually be in charge of the critical tenant selection process. Tenants have different priorities than landlords and should not be in charge of selecting tenants. Subletting is very prevalent in Santa Cruz among UCSC students and in Monterey among CSUMB students.

A well drafted rental agreement should include a clear no-subletting provision.

3. Customize the Rental Agreement for Your Property

While many landlords have written agreements in place with their tenants, very few of them actually customize those agreements for their tenant and the specific property. Customizing your rental agreement is an easy way to communicate your expectations as a landlord from the get-go.

Do you have a prized fruit tree at the rental property that needs regular water? Include a provision in your rental agreement requiring your tenant to water it. Have high-maintenance neighbors next to your rental property? Be sure to include a clause about parking and other “good neighbor” provisions.

4. Stick to Your Rental Agreement and Keep it in Writing

Landlords and tenants should stick to their rental agreements and document any changes with a written “amendment” to the rental agreement. If a landlord deviates from a rental agreement, a tenant may argue that the landlord has “waived” their right to enforce that provision of the rental agreement.

As an example, take the case of Eric the landlord. Eric’s written landlord-tenant agreement has a clear no-pet policy, which Eric’s new tenant, Justin, reads and signs. After a three months, Justin asks Eric for permission to get a “medium sized” dog. Eric agrees to the request. Unbeknownst to Eric, Justin brings home a pit bull. Many months later, neighbors start to complain that Justin’s dog is barking constantly. When Justin’s dog doesn’t stop barking, Eric attempts to evict Justin and his dog. However, Justin may successfully defeat the tenant eviction and argue that Eric voluntarily gave up any objection to Justin’s dog when he verbally agreed to him getting a dog.

Important changes, such as allowing a pet, should always be in writing.

5. No Alternative Dispute Resolutions

California landlords have very limited options when forced to evict a tenant who does not pay rent or who commits other serious breaches of the rental contract. For this reason, it is important that your rental agreement not modify or further limit the few protections left available to you as a California landlord. This includes “alternative dispute resolution” clauses that require mediation or arbitration, rather than filing an eviction or “unlawful detainer”. Freebie rental agreements available online are often times not geared for California law and will only muddy the waters if you need to evict.

Do you have a written landlord-tenant agreement in place with your tenant?

Ready to stand up for your rights? Call Brian Mathias Law for a  consultation.

The Top 5 Things to do After an Auto Accident - Don’t Forget!

After an auto accident, thankfully, most people know to stop, check for injuries, pull safely off the roadway, and exchange insurance information. Here are the top 5 overlooked things to do after an auto accident involving non-serious injuries.

1. Call the Cops and Get a Police Report

If you are involved in a small car accident, it may be tempting to simply move on and not call the cops, even if you are slightly injured. But think twice. Not calling the cops is a big mistake if you ever want to collect monetary damages for missed work, doctors bills, and pain and suffering.

A police officer, including the Highway Patrol, will make a police report, called a “Traffic Collision Report” if called to the scene. This police report will contain important contemporaneous observations and notes about the accident, including which driver caused the accident. A favorable police report will generally be given a great amount of credibility by insurance companies and generate a more favorable settlement.

If you fail to call the police and get a report, the only other witness to the accident will be the other driver. When this occurs insurance companies will make every attempt to contest liability and argue that you caused the accident. This is can be avoided by calling the cops after an accident.

2. Take Good Photos   

You should always take high-quality photographs at the accident scene. These photos should accurately depict the damage done to both cars, the scene of the accident, and the weather and time of day. You don’t need a fancy camera; good photos taken with your iPhone/smartphone will do just fine.

Importantly, take the time to take a good quality photo that actually depicts the damage done to the cars. Adjust the zoom, hold still, use the flash if necessary. Take the time to capture a good photograph before you leave. It is difficult to capture the size of a dent—even a big dent—on a newer model car.

If you take bad photographs that downplay the level of damage done to your car, insurance companies will use them as evidence to argue the accident was minor and that you could not have possibly been injured.

3. Go to the Doctor Right Away if you are Injured

If you are injured, do not wait a long to go to the doctor. Go to a doctor, preferably your regular treating physician, if you are in pain.

Auto accident victims are often reluctant to go to the doctor even when they are in excruciating pain. This may be from a concern over cost or simply a belief that a doctor cannot fix their pain. However, if you do not go to the doctor after an auto accident, that fact will be used against you by insurance companies to argue that you were never actually injured.

Additionally, a doctor’s timely diagnosis of your pain, and linking that pain to the accident (called “causation”) is critical to obtaining a favorable personal injury settlement.

4. Be a Good Patient

Being a good patient is critical to obtaining a favorable personal injury settlement from any type of car accident or motorcycle accident. This means that you should listen to your doctors and medical providers and implement their instructions.

If you are prescribed physical therapy after a car accident, make sure you do any at-home exercises assigned by the physical therapist. If your treating physician tells you to come back for another appointment in two weeks if you are still in pain, do exactly that.

Also provide your medical providers with accurate information about your symptoms. Don’t report that you have a pain level of 4 on a scale of 1-to-10 if you actually are living in agony and actually experiencing an 8 out of 10.

Juries, judges, and insurance companies are more likely to give more money to good patients.

5. Don’t Wait Too Long to Take Action

As a general rule, personal injury cases, including car and motorcycle cases, have a legal deadline, called a “statute of limitations”, beginning from the date of the accident. (California Code of Civil Procedure 335.1.) This means that you have two years to file a lawsuit to preserve any legal claims against the responsible party.

Too often, self-represented car accident victims wait until the last minute to contact an attorney or to take legal action. Shopping for an attorney itself will take time. Additionally, most attorneys will want to conduct an informal investigation before officially signing up a client, which also takes time.

If you are at all interested in getting an attorney to help you, do so quickly after the accident.

Were you injured in an auto or motorcycle accident? Call the Law Office of Brian Mathias for a  consultation.

Five Common Mistakes for Landlords to Avoid

Each and every landlord-tenant issue will pose a unique challenge or novel issue. However, most landlords can avoid legal problems by learning from these top five most common landlord mistakes.

1. Preparing your own 3-day, 30-day, or 60-day notices

Landlords should never draft and serve their own pre-lawsuit notices. This can be a time consuming and costly mistake.

For background, a landlord is required to serve a pre-lawsuit notice on the tenant in the event of a failure to pay rent or other breach. These are commonly referred to as a “3 Day Notice to Pay Rent or Quit” or a “30-Day Notice to Quit”. The notice must meet highly technical requirements in order to survive an unlawful detainer or eviction.

The problem is that landlords often prepare these forms incorrectly. This results in the notice having to be re-served and the landlord having wait another three days, another 30 days, or even another60 days to enforce legal rights in court. Landlords should always have an attorney prepare a pre-lawsuit notice.

2. Not asking for a security deposit

Landlords should always require a security deposit of at least one-month’s rent, or even more. Legally, a landlord may require a security deposit of up to two-months’ rent for an unfurnished property and three-months’ rent for a furnished property.

Collecting a security deposit is often a landlord’s only opportunity to collect money from the tenant in the event of a failure to pay rent. As an illustration, in the event the tenant refuses to pay rent, a lawsuit called an “unlawful detainer” must be initiated. That process, if successful, can take 30 days or longer to complete. During that entire time the tenant is typically not paying any rent.

3. Not promptly objecting to late rent payments or other contract breaches

A common problem occurs when landlords fail to promptly object to late payments of rent or other breaches of the rental contract. This is problematic for landlords because the tenant may successfully argue that the landlord “consented” to the breach.

As an illustration, take the case of Jared who rents an apartment in Capitola and his landlady, Laurel.

Jared started off as a very good tenant from Laurel’s perspective and always paid his rent on the first of each month. Then Jared gradually starts paying the rent a few days late. He never pays a late fee. Secretly Laurel is highly annoyed with Jared for paying the rent late, but she never says anything to Jared about the problem. After 8 months of receiving the rent late, Laurel is fed up and wants to evict Jared for failing to pay rent on time and failing to pay a late fee.

Unfortunately for Laurel, and luckily for Jared, Jared may argue that Laurel consented to his practice of paying rent late and paying it without a late fee. He may argue that the long-standing practice of paying rent late modified the rental contract that called for rent on the first day of the month. Jared has a viable defense to an unlawful detainer.

Landlords should always promptly object to late payments of rent or other breaches of the landlord tenant agreement.

4. Allowing “tenant swapping” and “subletting”

It’s a bad idea for landlords to permit to “tenant swapping”. Tenant swapping occurs in multiple-occupant rentals when one tenant moves out, and the remaining tenants select a new tenant to take the old tenant’s place. Tenant swapping is prevalent in student-occupied housing at UCSC and CSUMB.

“Subletting” occurs when an existing tenant rents out the rental premises for a short period time. The original tenant then becomes a quasi-landlord. Subletting is common during the summer when college students leave Santa Cruz and Monterey at the end of the school year.

Tenant swapping and subletting are problematic for two reasons. First, much of the time tenant swapping and subletting results in the new tenant not signing a written landlord-tenant agreement with the landlord. Failing to have a written landlord-tenant agreement with each tenant creates complications with the security deposit and in the event of an eviction.

Second, tenancies that result from tenant swapping and subletting typically do not go through any basic screening and application process by the landlord. A basic screening process will disclose if the potential tenant has a history of evictions and not paying rent. Would you want a career squatter living in your property? Absolutely not!

5. Using free landlord-tenant agreements

Landlords also encounter problems by using free landlord-tenant agreements and leases from the internet. While some free landlord-tenant agreements may be fine, many are not tailored for California law. Free landlord-tenant agreements may also require the landlord to utilize an expensive arbitration or mediation process in the event of a failure to pay rent. Landlords should always use a landlord-tenant agreement from a trusted source that is based on California law.

Are you a residential landlord in Santa Cruz or Monterey County? Call the Law Office of Brian Mathias for a free consultation.

Ready to stand up for your rights?

Landlord-Tenant Law 101: Common Eviction Questions

The basic facts behind an eviction lawsuit are simple. A landlord and a tenant enter into an agreement. The landlord promises to provide a habitable property. In exchange, the tenant agrees to pay timely rent. But what happens if a tenant stops paying rent and refuses to leave?

The answer is that the landlord must file a lawsuit to evict the tenant, called an “Unlawful Detainer”.

Can landlords lock out tenants who are not paying rent?

Absolutely not. California has very clear laws that prohibit landlords from locking out their tenants if they fail to pay rent. Otherprohibited “self-help” remedies include shutting off utilities or other actions short of an actual lockout that essentially require the tenants to move.

The law is clear: if a landlord wants to evict a tenant, they must use the unlawful detainer process. The landlord needs to go to court and get a judgment ordering the tenants to leave.

How long does an unlawful detainer process take?

An unlawful detainer typically takes between 20 and 30 days to complete. The total amount of time depends on the case’s complexity and how quickly the court schedules a trial. To a landlord, this can be an excruciatingly long time because the tenant will have typically already been in default of rent a week or more before the legal process is initiated.

As an illustration, take the case of Linda the landlord and her tenant, Tim. Tim fails to pay Linda $2,000.00 in rent on the first of May (the due date). Linda repeatedly asks Tim when he will pay, but two weeks go by and Tim still doesn’t pay rent.

Linda must initiate an eviction by serving a legally compliant “3-Day Notice to Pay Rent or Quit”. Tim the tenant will have three days to pay rent, or move out of the property. If Tim fails to pay $2,000 or move out, Linda may file a lawsuit. Tim will have five days after being served with the lawsuit to respond or “answer.” The court is then required to set a trial in 20 days or less. A part-day trial will then take place. Assuming Linda wins the trial, the Court Clerk will issue a Writ of Possession. The Writ of Possession is then served on Tim who will have another five days to move out. At the end of the fifth day, the Sheriff will forcibly remove Tim from the property. Only then does Linda get the property back.

That’s 33-days total. Delays in service of process, court holidays, or other complications will extend the timeline even further.

How much does an eviction cost?

Evictions can cost several hundred to thousands of dollars. It completely depends on the complexity of the underlying facts of the case.

There are two components to the cost of an eviction. The first component of costs are fixed fees charged by the court system, process servers, and the Sheriff’s Office. Those fees will typically cost around $550, including $245 to file the underlying lawsuit.

The next component of costs is attorney-fees. The total attorney fees in any eviction are entirely dependent on the complexity of the case and how much work needs to be done.

Do I need an attorney to file an Unlawful Detainer?

Yes. Landlords are not legally required to have an attorney represent them in court or file legal documents. However, they should be discouraged from doing so. Unlawful detainers are highly technical and it’s often better in the long run to get advice through an attorney from the outset to avoid long delays.

For legal context, a judge will only evict a tenant if the landlord can demonstrate strict legal compliance with all procedural requirements. In other words, one slip up can result in the landlord having to re-start the entire process.

The laws and rules surrounding unlawful detainers are very technical. As an example, what if your tenant owed $2,000 in back rent, $150 in late fees, and $200 in utilities? Would you know to serve two separate notices, a 3-Day to Pay Rent or Quit and a 3-Day to Perform a Covenant or Quit? Would you know the difference between the notices? The rules can be complicated. It’s often better to talk to an attorney rather than face a delay.

Are you a Monterey, Salinas, or Santa Cruz County landlord with additionalquestions about an unlawful detainer? Contact the Law Office of Brian Mathias for a consultation.

What do we want?! Lettuce! When do we want it?! Now!

New Law Gives Tenants the Right to Grow Food

California recently passed the California Neighborhood Food Act, codified as California Civil Code Section 1940.10. The law grants California tenants the right to grow edible plant crops for personal consumption or donation at their rented single family home or duplex. Tenants are now free to grow lettuce to their hearts’ desire...with some strings attached:

First, tenants’ edible crops must be grown in “portable containers”.  Unless a landlord-tenant agreement allows otherwise –most landlord-tenant agreements would- tenants are not given the right to plant directly into the soil. The portable containers must be outdoors; there is no right to indoor cultivation of tenant crops.  The portable containers are only permitted in the backyard area of a property.  There is no limit to the number of containers if they are regularly maintained.

Second, marijuana is expressly prohibited as an “edible plant crop” under the statute. It is clear that the legislature is not granting tenants the right to grow marijuana. Lawful and unlawful cultivation of marijuana will continue to be the source of many evictions in Santa Cruz and Monterey Counties.

Lastly, California landlords are still given a great amount of discretion under the statute. Landlords may ban pesticides, may approve the tenant’s portable containers, and may charge extra for additional water use, and may inspect the property.

As an example, the author's lettuce, pictured above, would be not protected under the new statute because it is located in a non-portable container.

In the author’s opinion, it will be unlikely that the new law will be the source of any pricey evictions or tenant lawsuits. Most landlords would probably allow their tenant to grow a container of lettuce, even if the new law were not enacted.

The law is effective in illustrating the depth and complexity of California Landlord-Tenant Law. Central Coast Landlords should be careful if they are using old, pre-printed landlord-tenant agreements, or landlord-tenant agreements pulled off the internet. Such forms can easily be in violation of California law. Freebie forms are unlikely to incorporate the many different California landlord-tenant laws and regulations.

For tenants, the law illustrates how tenant rights expand every single year in California. Tenants can legally stand-up for themselves if they have a truly unreasonable landlord.

For any landlord or tenant questions, call the Law Office of Brian Mathias. Ready to stand up for your rights?

Woof! California dog bite law

Most Californians understand that if they are bit by a dog, some laws will apply. But what exactly does the law say?

California’s dog bite law is most clearly understood through California Jury Instruction Number 463. That jury instruction breaks down the four essential elements of dog bite law (called “prima facie” elements in legalese) into plain English.

California dog bite law is a breed of “strict liability.” Strict liability means that legal responsibility for harm does not require any showing of negligence or wrongdoing. Dog owners can be held responsible for the harm from a dog bite, no matter how carefully they guard or restrain their dogs. It does not matter if the dog was known to be dangerous. Nor does it matter if the dog was leashed.

The first element of California dog bite law is to establish that the defendant actually owned the dog that bit the plaintiff. People who are bitten by a stray dog or a dog with an unknown owner will not be able to recover under the law. If you are bitten by a dog, immediately ascertain who owns the dog. You should also immediately call animal control or the police to help you, if necessary.

Second, a plaintiff must establish that they were bitten while on public property or while lawfully on private property. Illustrated, if a dog bite occurs in the Aptos Polo Grounds Dog Park, on Its Beach in Santa Cruz, or on Alvarado Street in downtown Monterey, the plaintiff has established the second element of their case.

But what does “lawfully on private property” mean? Friends or guests who are invited into the dog owner’s home are “lawfully” on private property. There is no legal immunity for dog bites that occur within the dog owner’s home. (See California Civil Code Section 3342 (a).) UPS drivers, pizza delivery drivers, general contractors, and any others who come onto property to perform a service are also included under this definition. Burglars, trespassers, and others not “lawfully” on private property will not satisfy this statute.

The third element requires that the plaintiff was harmed by the dog bite. This does not require the dog bite to break the skin, draw blood, or cause a wound. (See the case of Johnson v. McMahan (1998) 68 Cal.App.4th 173 [Swamp cooler repairman bitten on leg through trousers by a German Shepherd named “Timber”.]). Nor is there exclusion for little dogs that could conceivably cause no permanent or lasting injury. A nip from a Chihuahua will establish liability.  

Lastly, the bite must be a “substantial factor” in causing the plaintiff’s harm. To be “substantial” the bite must merely be “more than remote or trivial” in causing harm. This requirement is usually easily established in the context of a dog bite. However, it can get complicated.

As an illustration, take the imaginary case of Sally. Sally has chronic arthritis in both wrists resulting in constant pain and a decreased range of wrist motion. One day, Sally is bitten on the wrist by Willi the German Shepherd at Its Beach in Santa Cruz. The long-term effects of the bite cause even more pain in Sally’s wrists and further decrease her already limited range of wrist motion.

It does not matter that Sally had a preexisting harm or condition with her wrists before the bite. Sally merely needs to establish that the bite from Willi the German Shepherd was more than a “remote or trivial” cause in aggravating her preexisting wrist condition. Sally still has a great case under California’s dog bite law.

For any questions on California dog bite law, please call Brian Mathias Law, serving both sides of the Monterey Bay. Ready to stand up for your rights?