December 2011 Archives

Substantial Evidence Showed That Removal From Parents' Home Was Reasonable

December 27, 2011, by Law Offices of James V. Sansone

Juv law.jpgState statutes governing dependency proceedings are set out generally in Welf. & Inst. Code § 300 et seq. Dependency proceedings are special proceedings traditionally viewed as being governed by their own set of rules and statutes.

Because of the parents' work schedules, they left their minor child at the home of the paternal grandfather and the paternal great aunt. On a Wednesday in March 2011, the grandfather, who had been home alone with eight-month-old took her to a hospital. When she arrived, she was limp, pale, and nonresponsive. CPR was administered and she was transferred to Rady Children's Hospital, where testing "showed presence of a right subdural hematoma which was mixed density, acute or acute and chronic," and bilateral retinol hemorrhages "most consistent with subacute."

The parents told the attending physician that the child was healthy when they left her with the grandfather the previous day and they were unaware of any traumatic event. The parents reported that the grandfather told them he walked away from the child when she was lying down drinking a bottle. He heard her begin to choke and returned to her, finding her limp.

The San Diego County Health and Human Services Agency took the child into protective custody and filed a petition on her behalf under section 300, subdivision (b). The petition alleges that the child's injuries "would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of the parents of the child and there is substantial risk that the child will suffer serious physical harm or illness." (See § 355.1, subd. (a).)

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Contents of MySpace Page Are Sufficient To Establish Its Authenticity

December 20, 2011, by Law Offices of James V. Sansone

online-social-networking-2-320x200.jpgGenerally in court, documentary evidence such as records, letters, bills, contracts, and similar writings have to be authenticated or identified before being admitted in evidence as genuine.

In today's society, information obtained on social networking websites is being used in court as evidence against the party who made the post.

This seemed to have begged the question, how do you properly authenticate a social networking post? That question has been answered in People vs. Valdez.

In Valdez, supra, a jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings. Valdez asserts challenges to the sufficiency of the evidence to support his conviction of street terrorism by arguing that the trial court erroneously admitted pages from his MySpace social networking site that included his gang moniker ("Yums"), a photograph of him making a gang hand signal, and written notations including "T.L.F.," "YUM $ YUM," "T.L.F.'s '63 Impala," "T.L.F., The Most Wanted Krew by the Cops and Ladiez," and "Yums. You Don't Wanna F wit[h] this Guy."

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Sonoma County Plaintiff Is Awarded 1.2 Million Damages Following Collision With CHP

December 13, 2011, by Law Offices of James V. Sansone

civil_litigation.jpgOn September 26,2009,plaintiff Cynthia Dempsey's pickup truck was struck by a CHP patrol vehicle on Highway 12 westbound,just east of Santa Rosa Avenue in Santa Rosa,causing the pickup to flip onto a guardrail,bounce off and skid along Highway 12 on its roof for approximately 100 feet.

The officer had received a call that a group of approximately 25-30 people,some dressed in baggy clothing,had gathered at the Santa Rosa DMV parking lot. He entered his vehicle and began a code three emergency response. Between Farmers Lane and the Maple Avenue on-ramp,the officer reached speeds exceeding 100 miles per hour.

A Sonoma County jury awarded plaintiff more than $1.2 million against the State of California for the injuries she suffered in a collision with a CHP officer. The State denied liability, contending that the officer was properly responding to an emergency and that a motorcycle driver was the primary cause of the accident. The jury found the officer to be negligent and apportioned 99.5% of the liability to the State.

As it turned out, the call ended up being a false alarm. However, do you think the result should have been different if the call ended up being valid and a gang fight was actually happening?

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The Law Office of James V. Sansone was founded with the goal of providing individuals and local business owners with a meaningful and cost-efficient alternative to large law firms. We are pleased to offer experienced legal representation, while still offering reasonable rates that are favorable to what clients might expect in a large law firm setting.

Unprotected Sex Is Not Willful and Malicious Act For Purposes of Non-Dischargeability

December 6, 2011, by Law Offices of James V. Sansone

throwing-a-punch.jpgIn the case of Cragen v. Maxwell the plaintiff (Cragen) believed he contracted a sexually transmitted disease from debtor (Maxwell) and threatened to sue her. To avoid suit, Maxwell agreed to pay Cragen $35,000. She signed a promissory note to which the plaintiff agreed to release her from any claims sustained by or resulting from contracting a sexually transmitted disease from Maxwell.

11 USC 523(a)(6) provides that debts for willful and malicious injury by the debtor to another can't be discharged in bankruptcy.

Pursuant to Section 523(a)(6), after Maxwell filed for Chapter 7 protection, Cragen filed a complaint alleging his claim was nondischargeable.

He alleged that Maxwell willfully and intentionally exposed him to human papilloma virus by engaging in unprotected sexual intercourse with him without informing him of her diagnosis. Maxwell denied having a past diagnosis and argued that her actions did not rise to the level of willful and maliciousness.

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