November 2010 Archives

School Bullying Can Voilate Civil Rights Laws

November 29, 2010, by Law Offices of James V. Sansone

As reported by CNN, bullying and harassment in schools often includes violations of federally protected civil rights, the federal government warned in new guidelines for educators on how to address the problem.

If school administrators fail to properly deal with harassment based on gender, race or other issues, they risk being cited for contributing to a pattern of civil rights violations that could, in extreme cases, lead to a cut in federal funding.

"In extreme cases, schools could be stripped of their federal education monies if they don't comply with all of our civil rights laws," said Russlynn Ali, assistant secretary for civil rights. Also on the call were Arne Duncan, secretary of education, and White House Domestic Policy Council Director Melody Barnes.

The issue of harassment gained prominence this year after a spate of suicides by students who were being bullied. President Obama has called for greater awareness of the problem, saying the nation must "dispel the myth that bullying is just a normal rite of passage or an inevitable part of growing up."

The guidelines were part of a letter that began "Dear Colleague" sent Tuesday to thousands of schools, colleges, universities and school districts around the country that included examples of bullying and harassment cases that constituted violations of federal civil rights laws.

So now it appears that school bullies have much more to fear than an after school detention or suspension.


November 26, 2010, by Law Offices of James V. Sansone

Although the Holidays are when many Police Officers and California Highway Patrol are stepping up their enforcement of Sonoma County DUI checkpoints. Any time of year a Santa Rosa DUI checkpoint can be in place.  It’s often the off time of year when some folks reckon that they can get away with a few drinks. Avoiding DUI penalties and hefty DUI insurance rate increases.

A sobriety checkpoint is a tool that law enforcement use to evaluate random drivers for signs of drug and alcohol impairment. A sobriety checkpoint may be a stop on the road, freeway, or other public road. Law enforcement decides ahead of time what process to use when stopping vehicles (i.e. every fourth car is stopped).

Contrary to what many people thing, sobriety checkpoints are legal.  In 1990, the United States Supreme Court declared that sobriety checkpoints did not violate citizen's Fourth Amendment right against unreasonable search and seizure. They decided that when these checks are preformed with minimal intrusion under specified guidelines, the benefit of these checkpoints greatly outweighs the minor intrusion on individual's rights. Each state has adopted laws of their own regarding sobriety checkpoints. Currently, approximately eleven states prohibit the use of sobriety roadblocks; however California is NOT one of the eleven. 

The most common signs of impairment which are looked for during a sobriety checkpoint stop are:

  • the odor of alcoholic beverages or drugs

  • blood shot eyes

  • the presence of alcoholic containers or drug paraphernalia in the vehicle

  • slurred or difficult speech

  • fumbling or other physical signs of intoxication

  • admission of drug or alcohol use

  • inconsistent responses to answers

  • detection of alcohol by a passive alcohol screening tool

As with any routine stop, you are required to provide identifying information such as your name, address, driver's license, and registration. By law, you do not have to say anything. REMAIN SILENT. Anything you say could potentially be used against you. Admitting to drinking or consuming drugs (even in small amounts: “I just had one!”) can be construed as admitting guilt. DON'T SAY ANYTHING.

 Most police officers will not tell you this, but you do NOT have to take field sobriety tests (FST). Those are the ones where you have to walk a line, touch your nose, and do other similar stunts. These are designed for failure. You are not required by law to take these tests.  However, if you do refuse you probably will be arrested on suspicion of DUI.  What is best for you defense later on down the road is not always the best if you are trying to avoid an arrest all together. 

While you are not required to take the initial breathalyzer test, which many consider to be just another FST, you ARE required, under implied consent laws, to submit to chemical testing of your blood, breath, or urine, at the request of an officer upon arrest on suspicion of DUI. These may be done, out of the flow of traffic, at the scene of the checkpoint, or you may be brought to a nearby facility for this testing. If you are not arrested after testing, you are free to leave and do not have to say anything.

If you were charged with drunk driving after a sobriety checkpoint investigation this holiday season, you need the help of a competent attorney as soon as possible. Contact JVS Law today for your free initial consultation.

Social Networking Sites Such as Facebook and MySpace Can Be Your Ex Partner's Worst Nightmare

November 25, 2010, by Law Offices of James V. Sansone

Being to open on social networks has led to a surplus of evidence in divorce cases.  Studies have shown throughout the United States that a growing number of family law attorneys have used or faced evidence pulled from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the last five years.  About one in five adults uses Facebook for flirting, according to a 2008 report by the Pew Internet and American Life Project.

I litigated a child custody case last year where I was able to use a father's adult advertisement on MySpace to obtain a custody order that was very favorable to my client.

So the next time you post something on a social network site, you should ask yourself at least one question, whose watching?

Pacific Heights Lived Out in Sonoma County! Have Tenant Protections Gone Too Far?

November 24, 2010, by Law Offices of James V. Sansone

In landlord-tenant law, a warranty of habitability is implied in a residential lease, see Green v. Superior Court, (1974) 10 Cal.3d 616 [111 Cal.Rptr. 704]. The law imposes certain duties on a landlord to maintain the premises in habitable condition. Failure to do so, such as providing adequate weatherproofing, available heat, water and electricity, and clean, sanitary and structurally safe premises, may be legal justification for a tenant's defensive acts, such as moving out (even in the middle of a lease), paying less rent, withholding the entire rent until the problem is fixed, making or hiring someone to make necessary repairs and deducting the cost from next month's rent, see Civil Code Section 1942.

Although these restrictions can be burdensome to landlords, they have been put in place by the state legislature and judiciary on the theory that unsophisticated tenants need to be protected from sophisticated disreputable landlords.  The law is designed to protect people from being victims of inhabitable dwellings.

I am certainly not advocating that tenants should be forced to live in inhabitable dwellings, but at what price do we ensure tenants are “protected”?  I just finished litigating a case against Gwendolyn Smith.  I obtained a judgment in favor of my client, Connie Cook, for all back due rent and treble damages in the amount of $49,635.96.

I convinced the Court treble damages were justified based on the theory that Ms. Smith’s actions were malicious, willful, deliberate, and intentional holding over which deprived Ms. Cook of her beneficial use of her property, which she subsequently lost to a short sale.  Ms. Smith attempted to defend her actions, including the failure to pay rent for over one year, arguing, inter alia, breach of the warranty of habitability and retaliatory eviction.  The defenses available to Ms. Smith made what was designed to be a “summary proceeding” last in excess of fourteen months, which caused my client to lose her home.

Do you think it was proper that Gwendolyn Smith could possess a property for approximately one year and not pay any rent?  Read the Press Democrat articles below and let me know your thoughts.

THE PRESS DEMOCRAT: November 4, 2010

THE PRESS DEMOCRAT: September 1, 2010

THE PRESS DEMOCRAT: August 11, 2010


Bankruptcy Filings Up Almost 14% From Last Year

November 23, 2010, by Law Offices of James V. Sansone

Bankruptcy cases filed in federal bankruptcy courts for 2010, the 12-month period ending September 30, totaled 1,596,355, up 13.8 percent over total FY 2009 bankruptcy filings of 1,402,816, according to statistics released on November 8 by the Administrative Office of the U.S. Courts. While non-business bankruptcy filings continued to rise in 2010, business filings dropped slightly for the first time since 2006. The bankruptcies reported today are for October 1, 2009 through September 30, 2010.

In FY 2010, filings rose for most bankruptcy chapters:

  • Chapter 7 filings in FY 2010 totaled 1,146,511, up 15.9 percent from the 989,227 chapter 7 filings in FY 2009.

  • Chapter 11 filings fell 3.8 percent, decreasing from 14,745 in FY 2009 to 14,191 in FY 2010.

  • Chapter 13 filings rose 9.2 percent, from 398,210 in FY 2009 to 434,839 in FY 2010.

  • In FY 2010,chapter 12 filings totaled 707, up 45.2 percent from the 487 chapter 12 filings in FY 2009.

The full article can be found at the United States Courts website.

Should I Hire A Bankruptcy Attorney?

November 19, 2010, by Law Offices of James V. Sansone

If you are thinking about filing for Chapter 7 or Chapter 13 bankruptcy, it is important that you seek representation from a qualified bankruptcy attorney. The bankruptcy process can be complicated, and mistakes can result in serious consequences to your future. Just like all legal matters, bankruptcy can be quite difficult to manage without proper legal guidance. For this reason, people who are considering filing for bankruptcy are encouraged to retain the services of a qualified bankruptcy attorney.

A good bankruptcy attorney is a great investment for a better future. While we strongly encourage people to save money and act responsibly with their spending, hiring a bankruptcy professional is not the time to cut corners on costs. You wouldn’t hire the cheapest doctor in town to perform your heart bypass surgery – don’t use a non-lawyer document preparation company or an unqualified attorney to represent you in bankruptcy just to save a few dollars.

There are other reasons why you should hire a bankruptcy attorney:

  • When you file for bankruptcy, you must complete extensive paperwork including bankruptcy petitions and schedules. This process can be very arduous. Any mistakes that are made can be very costly. An experienced bankruptcy attorney can assist you with the process and prepare all of the required paperwork for you.

  • Creditors or lenders sometimes challenge the bankruptcy petition or suggested repayment plan. When this happens, you need a litigator on their side who is not only aggressive, but is also a skilled negotiator.

  • You may not fully realize what you are getting into. When you work with a qualified bankruptcy attorney, you are provided with the necessary resources, information and guidance to help you make informed decisions and have a solid understanding of the bankruptcy process.

  • A lawyer will protect your interests and legal rights so that you can regain your peace of mind. At The Forrest Law Firm, we believe that you deserve a fresh start.

JVS Law is a professional law firm that is committed to helping clients with bankruptcy and related legal matters in Northern California. With law offices and consultation offices in the city of Santa Rosa, JVS provides bankruptcy and related legal services to individuals and families who are struggling with debt or facing foreclosure. Attorney James Sansone is committed to providing each of his clients with excellent legal counsel and vigilant representation. We offer competitive fees and affordable payment options.

If you are thinking about filing for Chapter 7 or Chapter 13 Bankruptcy in the State of California, contact JVS Law today! We help people file for bankruptcy relief under the U.S. Bankruptcy Code.

Dividing Property and Debt During Divorce

November 19, 2010, by Law Offices of James V. Sansone

It is common for a divorcing couple to decide about dividing their property and debts themselves (with or without the help of a neutral third party like a mediator), rather than leaving it to the judge. However, if a couple cannot agree, they can submit their property dispute to the court, which will use state law rules to divide the property. Courts divide property under one of two basic schemes: community property or equitable distribution. Debts are divided according to the same principles.

  • Community property: In Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico, all property of a married person is classified as either community property (owned equally by both spouses) or the separate property of one spouse. At divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property.

  • Equitable distribution: In all other states, assets and earnings accumulated during marriage are divided equitably (fairly), but not necessarily equally. In practice, often two-thirds of the assets go to the higher-wage earner and one-third to the other spouse.

Division of property does not necessarily mean a physical division. Rather, the court may award each spouse a percentage of the total value of the property. Each spouse will get personal property, assets, and debts whose worth adds up to his or her percentage. (It is illegal for either spouse to hide assets in order to shield them from property division.)

How do we distinguish between community and non-community property?

Very generally, here are the rules for determining what's community property and what isn't:

  • Community property includes all earnings during marriage and everything acquired with those earnings. All debts incurred during marriage, unless the creditor was specifically looking to the separate property of one spouse for payment, are community property debts.

  • Separate property of one spouse includes gifts and inheritances given just to that spouse, personal injury awards received by that spouse, and the proceeds of a pension that vested (that is, the pensioner became legally entitled to receive it) before marriage. Property purchased with the separate funds of a spouse remain that spouse's separate property. A business owned by one spouse before the marriage remains his or her separate property during the marriage, although a portion of it may be considered community property if the business increased in value during the marriage or both spouses worked at it. If separate property is commingled with community property during the marriage, it may become community property, either in part or entirely, depending on the circumstances.

  • Property purchased with a combination of separate and community funds is part community and part separate property, so long as a spouse is able to show that some separate funds were used. Separate property mixed together with community property generally becomes community property.

Who gets to stay in the house?

If children are involved, the parent who spends the most time with the kids, or who provides their primary care, usually remains in the marital home with them. If you don't have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave. If, however, you don't have children and you own the house together, this question gets tricky. Neither of you has a legal right to kick the other out. You can request that the other person leave, but he or she doesn't have to. If you and your spouse don't come to a decision, the court will decide for you during divorce proceedings or earlier, if you ask for a temporary order on the issue. If your spouse changes the locks or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door and let you back in. When you both own the home, the only time you can get your spouse to leave is if your spouse has committed domestic violence and a judge grants a restraining order. Whatever you do, do not claim domestic violence has occurred just to get your spouse removed from the home. (Some people have resorted to this extreme tactic.) Once a judge realizes this has occurred, the party claiming violence may be asked to vacate the home and the judge may be biased against him or her during future negotiations. If you believe you are a victim of domestic violence, but are not sure, go to the Yellow Pages and call your local domestic violence hotline.

Republished with Permission © 2009 Nolo.

Ending Your Financial Worries Through the Bankruptcy Process

November 18, 2010, by Law Offices of James V. Sansone

In today's troubling economic climate, it has become more commonplace than ever to fall behind on your financial obligations. Whether you are swimming in high credit card debt, have incurred extensive medical bills from an injury, or have been laid off and fallen behind on your mortgage, you may be able to find effective relief by filing bankruptcy through the Chapter 7 or Chapter 13 bankruptcy process.

At the Law Offices of James V. Sansone, our attorney has devoted this practice to providing understanding and detailed bankruptcy assistance to individuals and families throughout the Northern California area. With your best interests in mind, our staff will carefully examine your financial situation and provide the informative advice you need to weigh the benefits of each bankruptcy process and make the strongest decisions for your unique circumstances.

Debt Relief Representation Designed Specifically for Your Needs

Our staff understands that no two financial situations are alike — your family's concerns are unlike any other. With that in mind, we strive to understand your concerns and your goals before offering advice on the bankruptcy process that will be most beneficial to you. Of course, if bankruptcy isn't your best option, we'll tell you. After all, we are here to help you alleviate your debt concerns, not add to them.

We offer advice on various bankruptcy matters and processes, including:

Chapter 7 bankruptcy: Also known as liquidation bankruptcy, Chapter 7 allows for the discharge of unsecured debts including credit cards, medical bills and personal loans. In the average case, a person is usually able to exempt all their personal property to avoid a sale. The Chapter 7 process can be completed in as little as 90 days, allowing you to begin rebuilding your financial standing.

Chapter 13 bankruptcy: The Chapter 13 process allows you to create an affordable payment plan that gives you the chance to catch up on past due debts. The payment plan, lasting three to five years, gives you the opportunity to pay off lowered settlement amounts to your debtors and discharge your remaining debt once the plan is complete.

Bankruptcy litigation: Our staff offers bankruptcy litigation guidance to creditors and lenders interested in protecting their accounts from discharge during a debtor's bankruptcy proceeding. We also defend creditor litigation against the debtor.

Please contact our office online or call 707-623-1875 or toll free 877-224-8103 to schedule a FREE consultation to discuss your financial worries with our lawyer and to learn if the bankruptcy process is right for you.

Compassionate Divorce Guidance for North Bay Residents

November 18, 2010, by Law Offices of James V. Sansone

The end of a marriage can be an emotionally challenging and frightening prospect, one that can cause great distress to either spouse as well as any children involved. When searching for resolutions to the various issues relating to your divorce, the assistance of an experienced lawyer can be an invaluable tool in insuring that your well being and the well being of your children is adhered to throughout your proceedings.

At the Law Offices of James V. Sansone, our attorney leverages more than nine years of experience to offer compassionate divorce guidance to clients in the Northern California area. Throughout your divorce proceedings, we strive to offer the informative advice you need to make the strongest decisions possible to limit the emotional and financial harm done to your future and your children.

Knowledgeable Attention to Your Unique Divorce Needs

Since no two divorces are exactly the same, our staff strives to understand your specific concerns before offering the informative advice you need. We will be able to assist you with all aspects included in the divorce process such as:

  • Child custody and visitation

  • Spousal and child support

  • Domestic violence

  • Prenuptial and post-nuptial agreements

  • Post-decree modifications

  • Termination of Parental Rights

  • International custody disputes under the Hague Convention

After examining your concerns and your goals, our staff offers the assertive representation you need to ensure that your voice is heard on all matters and that your best interests are adhered to during the final decision making processes.

Whatever your specific divorce concerns may be, our staff works diligently to help you find the closure you need to move your family forward into the next chapter in your lives. Contact our office online or call 707-623-1875 or toll free 877-224-8103 to schedule a FREE consultation to discuss your divorce proceedings and learn how we can be of assistance.

Landlord/Tenant Disputes at JVS

November 18, 2010, by Law Offices of James V. Sansone

The Law Offices of James V. Sansone represents clients throughout Northern California in disputes between landlords and tenants. Attorney Sansone provides effective legal counsel for property managers and renters in cases involving violations of lease and rental agreements, maintenance issues, and actions for unlawful detainer/evictions.

Attorney Sansone has represented many landlords and tenants in commercial and residential unlawful detainer disputes. An unlawful detainer lawsuit is a "summary" court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord's complaint. Normally, a judge will hear and decide the case within 20 days after the tenant files an answer.

Since an unlawful detainer is a summary proceeding it is a minefield for the unwary and such actions require an experienced attorney to handle them. Unlike most areas of the law, failure to strictly comply with all aspects of the rules and regulations regarding an action for unlawful detainer will result in a failed eviction. Attorney Sansone's aggressive litigation style has helped landlords evict even the most stubborn tenants.

Contact our office online or call 707-623-1875 or toll free 877-224-8103 to schedule a free consultation to discuss your specific legal needs with our lawyer.

Aggressively Defending You Against Harmful DUI Charges

November 18, 2010, by Law Offices of James V. Sansone

Being charged with a DUI or drunk driving conviction can be a frightening and confusing experience. With so much riding on a favorable outcome to your charges, the assistance of an experienced lawyer can be vital to protecting your wallet, your driving privileges and even your freedom.

At the Law Offices of James V. Sansone, our attorney understands the fears associated with clients who have been charged with DUI and works diligently to offer you the support you need to limit or eliminate the harm stemming from a conviction. With more than nine years of experience in the Northern California area, our staff provides the insightful and detailed assistance you need to ensure that your rights and your best interests are adhered to throughout your proceedings.

We leverage a detailed knowledge of Santa Rosa courts, prosecutors and judges to offer the insightful advice you need to make the strongest defense decisions possible when you have been charged with a DUI or underage DUI. We represent clients both during the criminal proceedings associated with your charges and the administrative license hearing before the Department of Motor Vehicles.

On your behalf, we carefully examine the events leading to your arrest, the actions of the arresting officer and the evidence obtained against you during the investigation. Any inconsistencies in evidence or deviations from police procedures can then be used to apply pressure on the prosecution. We will seek to have your charges dropped or will negotiate a favorable plea arrangement, saving you hundreds of dollars, the inconvenience of a license suspension and a lasting mark on your record.

If you have been charged with driving under the influence of alcohol, our staff can help. Contact our office online or call 707-623-1875 or toll free 877-224-8103 to schedule a free consultation.