SMART Train on Track for Train & Bike Trail

Photo of Cloverdale Depot - Northern Terminus
of SMART Train by Calder Frenaye-Hutcheson

SMART is on Track Now

By Ben Boyce

Accountable Development Coalition

This last week, a lively rally to support the SMART train and bike pathway drew over a hundred folks at the San Rafael city hall. We were there to celebrate the sale of nearly $200M in bonds that will permit construction to begin early next year, creating over 900 jobs.

The train has now left the station. For more than two decades the transit community has been working with local government to stand up a multi-modal, integrated transit system for the North Bay. The challenge of the 21st century will be to rationalize and regionalize our basic life-support systems: land, water, energy resources sustaining eco-systems, housing and transportation. SMART is the natural next step in building the transportation infra-structure for a sustainable future in the North Bay region.

  

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BARRISTER BITS: How to Protect Heirs from Inheriting Debt

DEAR READERS: Do you have a legal question that is burning on your mind?   If so, please email me.  Names will remain confidential.  Every inquiry may not be published, although we will publish as many as possible.   This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship. 

Q:  I am “underwater” on my house loan by about $60,000 but do have about $120,000 in my IRA (and no other possessions worth much value).  At 55 years old, should I have a will so my grown kids are protected and do not inherit any debt?

                                                            Signed:  Lance Landowner

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BARRISTER BITS: Cell Phone Laws

Q. My chiropractor told me that police officers are exempt from California’s cell phone laws. Seems a bit unfair that the men and women in blue can chat away on their cell phones, and then freely hand-out tickets to us. Does this ring true?


Signed: Aligned and Hands-Free

Dear Aligned: By now, one would think that the cell phone laws would be well-tested and understood. Yet, since the laws took effect over 1 ½ years ago, confusion abounds. There are two primary sections of the California Vehicle Code that are in play--one for drivers over 18 years (CA Vehicle Code sec. 23123) and the second one for drivers under 18 years old (CA Vehicle Code sec. 23124). Because it is a state statue, the law applies to any driver within the borders of our Golden State…residents and tourists alike.

The smartest way to obey the law is to avoid using a cell phone while driving so there is no grounds for dispute. Some Californians have been cited for simply picking up their cell phone to check the time. The citation is hard to fight in court as it is often your word against the police officer’s word. Bottom line: If you are over 18 and driving, you must use a “hands-free” device. Translated, you must use a Bluetooth or the speaker feature on your cell phone, as long as the phone is not in your hand (although it can be in your lap).
 
As with any law, there are exceptions. For example, you can “hand-hold” your cell phone if you are on private property, or if you need to make an emergency call. “Emergency” is a call to the police, fire, or your doctor. Calling your partner to grab an extra tofu at Andy’s is not considered an emergency.
 
The law also provides an exception for certain vehicles, such as commercial motor trucks, farm vehicles, tow trucks, and yes…”emergency services professional” while operating an authorized emergency vehicle—which is broadly defined and includes our police, sheriffs, fire departments, etc. So, your chiropractor is right—police are exempt as long as they are operating an authorized emergency vehicle, like their police car.
 
Now, if you are under 18, you are not allowed to use the cell phone at all—not for texting, calling, videos, anything…even if it is “hands-free”. Nada. No cell phone use at all allowed.
 
What are the fines? $20 for the first offense and $50 for the second. So by now you may be thinking, “That’s not so bad, I can risk it”! But wait…once you are ticketed, other “fees” will likely be added, such as a “conviction assessment”, a court security fee and a traffic administration fee. By the time the tally is final, the first offense typically will cost you around $142 bucks! Plus, to add salt to the wound, the conviction will go on your driving record (although currently you will not be assessed any “points”). One survey estimates that the CHP issued 234,000 tickets through 2009 for violating the cell phone laws.
 
As of this writing, the original author, State Senator Joe Simitian, has introduced SB 1475 which adds even more punch. If passed, the new law would increase fines to $50 for the first offense and $100 for the second, plus will cost the driver One (1) Point on their driving record. The introduced legislation would also ban bicyclists from talking on a cell phone without a headset.
 
So glad you asked the question. I think while driving I’ll just hum the “Roadhouse Blues”…“Keep your eyes on the road, your hands upon the wheel”!

DEAR READERS: Do you have a legal question that is burning on your mind? If so, please email me. Names will remain confidential. Every inquiry may not be published, although we will publish as many as possible. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Debra A. Newby is a resident of Monte Rio and has practiced law for 28 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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Barrister Bits: Hands-Free Cellphone Laws

DEAR READERS: Do you have a legal question that is burning on your mind? If so, please email me. Names will remain confidential. Every inquiry may not be published, although we will publish as many as possible. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Q. My chiropractor told me that police officers are exempt from California’s cell phone laws. Seems a bit unfair that the men and women in blue can chat away on their cell phones, and then freely hand-out tickets to us. Does this ring true?

Signed: Aligned and Hands-Free

Dear Aligned: By now, one would think that the cell phone laws would be well-tested and understood. Yet, since the laws took effect over 1 ½ years ago, confusion abounds. There are two primary sections of the California Vehicle Code that are in play--one for drivers over 18 years (CA Vehicle Code sec. 23123) and the second one for drivers under 18 years old (CA Vehicle Code sec. 23124). Because it is a state statue, the law applies to any driver within the borders of our Golden State…residents and tourists alike.

The smartest way to obey the law is to avoid using a cell phone while driving so there is no grounds for dispute. Some Californians have been cited for simply picking up their cell phone to check the time. The citation is hard to fight in court as it is often your word against the police officer’s word. Bottom line: If you are over 18 and driving, you must use a “hands-free” device. Translated, you must use a Bluetooth or the speaker feature on your cell phone, as long as the phone is not in your hand (although it can be in your lap).

As with any law, there are exceptions. For example, you can “hand-hold” your cell phone if you are on private property, or if you need to make an emergency call. “Emergency” is a call to the police, fire, or your doctor. Calling your partner to grab an extra tofu at Andy’s is not considered an emergency.

The law also provides an exception for certain vehicles, such as commercial motor trucks, farm vehicles, tow trucks, and yes…”emergency services professional” while operating an authorized emergency vehicle—which is broadly defined and includes our police, sheriffs, fire departments, etc. So, your chiropractor is right—police are exempt as long as they are operating an authorized emergency vehicle, like their police car.

Now, if you are under 18, you are not allowed to use the cell phone at all—not for texting, calling, videos, anything…even if it is “hands-free”. Nada. No cell phone use at all allowed.

What are the fines? $20 for the first offense and $50 for the second. So by now you may be thinking, “That’s not so bad, I can risk it”! But wait…once you are ticketed, other “fees” will likely be added, such as a “conviction assessment”, a court security fee and a traffic administration fee. By the time the tally is final, the first offense typically will cost you around $142 bucks! Plus, to add salt to the wound, the conviction will go on your driving record (although currently you will not be assessed any “points”). One survey estimates that the CHP issued 234,000 tickets through 2009 for violating the cell phone laws.
As of this writing, the original author, State Senator Joe Simitian, has introduced SB 1475 which adds even more punch. If passed, the new law would increase fines to $50 for the first offense and $100 for the second, plus will cost the driver One (1) Point on their driving record. The introduced legislation would also ban bicyclists from talking on a cell phone without a headset.

So glad you asked the question. I think while driving I’ll just hum the “Roadhouse Blues”… “Keep your eyes on the road, your hands upon the wheel”!

Debra A. Newby is a resident of Monte Rio and has practiced law for 28 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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Barrister Bits - Returning to Maiden Name

DEAR READERS: Do you have a legal question is burning in your mind (but are hesitant to ask an attorney…cha-ching; cha-ching)? Please send your questions to Debra A. Newby via email (contact information below). Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Q: I noticed that you changed the name of your column—used to be called “Shark Bait” (I’m still adjusting to the new name—not quite sure if I like it). Anyway, I’d like to change my name back to my maiden name—how do I do this?
Signed: Maiden in Pursuit of Identity

Dear Maiden: Hope the new name of the community column, “Barrister Bits”, will grow on you. I was trying to capture a name that is professional (hence the reference to “Barrister”, an English term for lawyer) and still keep a sense of levity to the column (“Bits” of advice, blended with a swirl of humor and philosophy). Hopefully, the new name will be accepted by you and other readers.

Name changes are relatively simple, yet controlled by state statute (California Code of Civil Procedure sec. 1279.5 and Family Code sec. 2082). Bottom line: If you are in state prison, on parole, on probation, a convicted sex offender, or want to change your name to defraud creditors, you are out of luck. The law specifically prohibits a name change. But let’s say you just want to change your name because you were conceived during Woodstock and you are continually embarrassed when they announce over the loudspeaker, “Petal Moonglow, your car is ready”. You are in luck.

Generally, you have to first formulate the reason for the name change, as I assure you, the Judge will ask. Your request for a name change will likely be granted if your reason is to reconnect to your cultural heritage, to avoid embarrassment, to reclaim your maiden name (assuming it is not already ordered/granted in your divorce decree), or to realign your self-identity (think Muhammad Ali, who legally changed his name from Cassius Clay to honor his conversion to Sunni Islam).

Next, you need to file “paperwork” with the court in the county where you reside. Go to www.courtinfo.ca.gov and fill out no less than five forms—NC-100 (Petition for Change of Name) and its accompanying cousins (NC-110, NC-120, NC-130 and CM-010). If you are already overwhelmed, you may consider a Legal Document Preparation Service, which will complete the forms, but typically will not file the paperwork (or front the filing fee, which can be rather hefty, so ask the court clerk about a Fee-Waiver—if you are at a certain income, you may qualify).

When you file the forms at our local courthouse, you should also request a hearing at least six weeks from the filing date…the same time it supposedly takes to develop a new, healthy habit and shed a old, unhealthy habit. Why six weeks? Well, you must also publish in a local newspaper once a week for four consecutive weeks an “Order to Show Cause (NC-120).
Once the paperwork is filed and the Notice is published, you will then appear before the Judge who will ask you why you are changing your name. You best have a legitimate answer. Then, voila, if granted, your new identity is assumed. But wait, you must then complete the circle of identity. You should then take the signed, approved Order in hand, and contact the “purveyors” of our Society—you know, Social Security Administration, DMV, banks, credit agencies, etc. Then, sit back and revel in your new identity, until the dust settles.

As Salman Rushdie so eloquently phrased, “Names, once they are in common use, quickly become mere sounds, their etymology being buried, like so many of the earth’s marvels, beneath the dust of habit”.

Float like a butterfly through the dust.

Debra A. Newby is a resident of Monte Rio and has practiced law for 29 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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Barrister Bits: how to change back to your maiden last name

Q: I noticed that you changed the name of your column—used to be called “Shark Bait” (I’m still adjusting to the new name—not quite sure if I like it). Anyway, I’d like to change my name back to my maiden name—how do I do this?
Signed: Maiden in Pursuit of Identity

Dear Maiden: Hope the new name of the community column, “Barrister Bits”, will grow on you. I was trying to capture a name that is professional (hence the reference to “Barrister”, an English term for lawyer) and still keep a sense of levity to the column (“Bits” of advice, blended with a swirl of humor and philosophy). Hopefully, the new name will be accepted by you and other readers.

Name changes are relatively simple, yet controlled by state statute (California Code of Civil Procedure sec. 1279.5 and Family Code sec. 2082). Bottom line: If you are in state prison, on parole, on probation, a convicted sex offender, or want to change your name to defraud creditors, you are out of luck. The law specifically prohibits a name change. But let’s say you just want to change your name because you were conceived during Woodstock and you are continually embarrassed when they announce over the loudspeaker, “Petal Moonglow, your car is ready”. You are in luck.

Generally, you have to first formulate the reason for the name change, as I assure you, the Judge will ask. Your request for a name change will likely be granted if your reason is to reconnect to your cultural heritage, to avoid embarrassment, to reclaim your maiden name (assuming it is not already ordered/granted in your divorce decree), or to realign your self-identity (think Muhammad Ali, who legally changed his name from Cassius Clay to honor his conversion to Sunni Islam).

Next, you need to file “paperwork” with the court in the county where you reside. Go to www.courtinfo.ca.gov and fill out no less than five forms—NC-100 (Petition for Change of Name) and its accompanying cousins (NC-110, NC-120, NC-130 and CM-010). If you are already overwhelmed, you may consider a Legal Document Preparation Service, which will complete the forms, but typically will not file the paperwork (or front the filing fee, which can be rather hefty, so ask the court clerk about a Fee-Waiver—if you are at a certain income, you may qualify). When you file the forms at our local courthouse, you should also request a hearing at least six weeks from the filing date…the same time it supposedly takes to develop a new, healthy habit and shed a old, unhealthy habit. Why six weeks? Well, you must also publish in a local newspaper once a week for four consecutive weeks an “Order to Show Cause (NC-120).

Once the paperwork is filed and the Notice is published, you will then appear before the Judge who will ask you why you are changing your name. You best have a legitimate answer. Then, voila, if granted, your new identity is assumed. But wait, you must then complete the circle of identity. You should then take the signed, approved Order in hand, and contact the “purveyors” of our Society—you know, Social Security Administration, DMV, banks, credit agencies, etc. Then, sit back and revel in your new identity, until the dust settles.

As Salman Rushdie so eloquently phrased, “Names, once they are in common use, quickly become mere sounds, their etymology being buried, like so many of the earth’s marvels, beneath the dust of habit”.

Float like a butterfly through the dust.

Debra A. Newby is a resident of Monte Rio and has practiced law for 29 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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Do I Need a Legal Disclaimer?

Q: I have written my memoirs in which I candidly described some of my previous bosses. One is a corporate president, who I claim is “loony” (he believed in “little green men”). I described another boss as “crooked” (the company went bankrupt and the boss defrauded our government out of $268,000). As I prepare the book for my publisher, should I consider some type of legal disclaimer, just in case my “truthful kindness” is not taken so lightly?

Signed: The Thrill of the Quill

Dear Thrill: Remember our childhood jingles, like “Sticks and stones may break my bones, but names will never hurt me?” My, how the world is changing. Now, it seems that if you engage in “name-calling” or comment on an individual’s character, you are subject to a defamation lawsuit.

First, some terms. Defamation is a legal cause of action in which a false statement causes injury or harm to another’s reputation. If the false statement is in writing, it is considered “Libel”. If the false statement is verbal, it is termed “Slander”. To “win” a defamation claim, you must prove basically two things: 1) The statement must expose the person to “hatred, contempt, ridicule, or obloquy, which causes the person to be shunned or avoided (See CA Civil Code sec. 45); and 2) The defamed person must suffer damages/lowering of their reputation (CA Civil Code sec. 48a).

Sticky issues often arise in defamation cases as to whether the “statement” is a fact or an opinion. Typically, an opinion may be protected. A misstatement of a fact is not. Often the courts distinguish fact vs. opinion by analyzing whether the statement can be proven false (i.e. a FACT) or whether the expression is subjective judgment (i.e. an OPINION).

So, if you write that your ex-boss defrauded the government, and it is proven that he did not, you could be sued for libel. If the facts prove that indeed he did defraud the government, then your statement that he is a “crook” would likely be considered an opinion, and may be protected.

You should also realize that defamation claims are limited to living persons only, and the living person must be “identifiable” in the writing. So, if you have out-lived your “loony” and “crooked” bosses, you may be in the clear. (Makes sense if you think about it, as it’s kinda hard to be shunned or ridiculed if you are six-feet under).

You also asked about a legal disclaimer. A usual disclaimer for a work of fiction might read something like, “This is a work of fiction. Any resemblance to actual individuals is merely a coincidence, etc”. Even this type of disclaimer is useless if a real person can actually be identified. In sum, there is no assurance that even a properly drafted disclaimer will provide the necessary protection. You should, however, consult with an attorney who specializes in defamation law, especially if you think your book will be profiled on Oprah and become a best-seller.

Some publishers may address defamation issues via their contract with the author. Carefully read your contract with your publisher. For example, one typical contract provision is that if any claim is made against the book, the publisher may help pay the claim by resorting to the book’s royalties.

I know…it is tough enough putting your memories down on paper, let alone worrying about whether someone will come out of the woodwork and claim a different version of the facts and that you “defamed” them. But that’s what makes life interesting—everyone’s own version of his or her story.

My mama used to say there are three sides to every story—yours, mine, and the truth. Truth is a defense, but the challenge is discovering it!

Debra A. Newby is a resident of Monte Rio and has practiced law for 28 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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Shark Bait - Cremation & Honoring Your Loved One

Q: We have acquaintances who would like to have their ashes scattered over Sonoma County. Is that legal?
Signed: “Dotting” Paradise, Lovingly.

Dear “Dotting” Paradise:
What an interesting query - it caused me to don my researcher’s cap! As I sauntered through the California laws relating to cremated remains and the sort, I discovered a few interesting quirks. First, technically it is against the law to dispose of any human remains unless it is in a cemetery.

What’s the “penalty” if you violate this law? Technically, breaking this law is classified as a misdemeanor, meaning it is a criminal offense and our Sonoma County District Attorney could file charges against the offender. (Health & Safety Code sec. 7054).

California is the largest state by volume for cremations. (Japan has the highest rate of cremation - 95%!) Now, with that said, I suspect that many Californians unknowingly violate the law by honorably scattering ashes under the cover of dark or discreetly, without the threat of prosecution. Not that I am encouraging to run afoul of the law, but the numbers do speak for themselves (and I don’t recall the last time I read an article about a family being prosecuted for illegally disposing of the ashes).

Now, hold on. Don’t lose hope to honor your loved ones and to also stay on the right side of he law. Most laws are a tangled weave of exceptions! You have a few options. You can legally dispose of the ashes one of the following ways:
• Door #1: In any church or religious shrine, with their written permission
• (H & S Code sec. 7054.6);
• Door #2: In “areas where no local prohibition exists” (H&S Code sec. 7116); or
• Door #3: At sea, which is defined as 500 yards from the shore. (H&S Code sec. 7117).

Let’s take a closer look behind Door #2—in areas where no local prohibition exists. This is a very broad exception. In essence, the key here is implicit or implied permission. For example, Smokey the Bear would even approve of you scattering ashes in our national parks - you just have to get a special use permit (Yosemite, for example, regularly issues such). Likewise, there is no prohibition against scattering the ashes on private land, with the land owner’s permission, of course. But be wary—if the private property owner goes to sell the land, he or she is supposed to disclose the existence of the human remains. Makes sense, if you think about it.

Now, let’s take a peek behind Door #3 - scattering at sea. Anyone can scatter the ashes, as long as they have a water vessel and a permit from the County. Yeap, that’s right. Ya gotta go by our Public Health Department (625-5th Street, Santa Rosa; (707) 565-4407) and they will help you with the paperwork. You just need eleven bucks and a copy of the death certificate. Now, when I first heard about this permit requirement, my cynic thought, “Oh, just another finger in the pie - government trying to control”. Oh, but contraire… if you think about it, the permit creates a permanent paper trial in case relatives of loved ones want to know where the remains are or visit the general site. Think of it as a “paper marker” for the future family genealogist who comes behind you.

Thanks for the great question - made me think and work - no easy answer. But as John Galsworthy quipped, “The beginnings and endings of all human undertakings are untidy”.

DEAR READERS: Do you have a legal question that is burning in your mind (but are afraid to ask an attorney…cha-ching…cha-ching)? If so, please send your questions to Debra A. Newby via email (contact information below). Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Debra A. Newby is a resident of Monte Rio and has practiced law for 27 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101, Santa Rosa, 95401).

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Scattering Ashes: Moral but Illegal

Q: We have acquaintances who would like to have their ashes scattered over Sonoma County. Is that legal?

Signed: “Dotting” Paradise, Lovingly.

Dear “Dotting” Paradise:
What an interesting query - it caused me to don my researcher’s cap! As I sauntered through the California laws relating to cremated remains and the sort, I discovered a few interesting quirks. First, technically it is against the law to dispose of any human remains unless it is in a cemetery. What’s the “penalty” if you violate this law? Technically, breaking this law is classified as a misdemeanor, meaning it is a criminal offense and our Sonoma County District Attorney could file charges against the offender.

California is the largest state by volume for cremations. (Japan has the highest rate of cremation - 95%!) Now, with that said, I suspect that many Californians unknowingly violate the law by honorably scattering ashes under the cover of dark or discreetly, without the threat of prosecution. Not that I am encouraging to run afoul of the law, but the numbers do speak for themselves (and I don’t recall the last time I read an article about a family being prosecuted for illegally disposing of the ashes).

Now, hold on. Don’t lose hope to honor your loved ones and to also stay on the right side of he law. Most laws are a tangled weave of exceptions! You have a few options. You can legally dispose of the ashes one of the following ways:
• Door #1: In any church or religious shrine, with their written permission
• (H & S Code sec. 7054.6);
• Door #2: In “areas where no local prohibition exists” (H&S Code sec. 7116); or
• Door #3: At sea, which is defined as 500 yards from the shore. (H&S Code sec. 7117).

Let’s take a closer look behind Door #2—in areas where no local prohibition exists. This is a very broad exception. In essence, the key here is implicit or implied permission. For example, Smokey the Bear would even approve of you scattering ashes in our national parks - you just have to get a special use permit (Yosemite, for example, regularly issues such). Likewise, there is no prohibition against scattering the ashes on private land, with the land owner’s permission, of course. But be wary—if the private property owner goes to sell the land, he or she is supposed to disclose the existence of the human remains. Makes sense, if you think about it.

Now, let’s take a peek behind Door #3 - scattering at sea. Anyone can scatter the ashes, as long as they have a water vessel and a permit from the County. Yeap, that’s right. Ya gotta go by our Public Health Department (625-5th Street, Santa Rosa; (707) 565-4407) and they will help you with the paperwork. You just need eleven bucks and a copy of the death certificate. Now, when I first heard about this permit requirement, my cynic thought, “Oh, just another finger in the pie - government trying to control”. Oh, but contraire… if you think about it, the permit creates a permanent paper trial in case relatives of loved ones want to know where the remains are or visit the general site. Think of it as a “paper marker” for the future family genealogist who comes behind you.

Thanks for the great question - made me think and work - no easy answer. But as John Galsworthy quipped, “The beginnings and endings of all human undertakings are untidy”.

DEAR READERS: Do you have a legal question that is burning in your mind (but are afraid to ask an attorney…cha-ching…cha-ching)? If so, please send your questions to Debra A. Newby via email (contact information below). Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Debra A. Newby is a resident of Monte Rio and has practiced law for 27 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101, Santa Rosa, 95401).

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You ARE Liable for Dangerous Trees on your Property

Q: I own a vacant lot that has many mature trees. I am worried that as winter approaches, a tree may fall causing damage to my neighbor’s home or property. Can I get insurance on a vacant lot? What should I do to protect myself?
Signed: Watchful Eye in Graton

Dear Watchful Eye: Oh, what great foresight you have, especially as all brace for the upcoming winter. Smart of you to be thinking ahead. I’ve addressed in past columns the fact that a property owner is liable for damage caused by poorly maintained trees. If the tree appears openly hazardous and dangerous, you are presumed to have “constructive notice” of the dangerous condition and could be held liable for any injury or damage caused. Bottom line: If the tree is on your property and it falls, you are liable for any injury or damage caused, meaning that the neighbor will likely either file a claim against your insurance company or sue you in court.

The lesson here is for everyone to assess now whether their trees need to be trimmed or removed. Call a reputable tree trimmer or arborist. Look for a local and bonded company—I believe one or two of them may even advertise and support this local paper!
Now, after you have completed your preventative sweep, you should also be armed with a few practical tips, re: Insurance Law 101.

Generally, if you are a home-owner, you will have a homeowner’s insurance policy with comprehensive personal liability coverage. This coverage automatically extends to any vacant land that is likewise owned by you. The qualifying “triggers” are: 1) the land must be vacant (meaning just that—no pump houses, outbuildings, etc. can be on the land); and 2) the land must be deeded or in the name of the same individual (or insured) as the homeowner’s policy. Finally, please note that the land need not be in the same county as the home that is owned. Coverage automatically extends to any territory that your insurance company is licensed to do business—so your vacant lot could be in New Jersey or Puerto Rico (also a US territory), as long as your insurance company is licensed to do business there.

What if the vacant land is zoned “commercial”—will coverage from the homeowner’s policy still automatically extend? Yes—the qualifying factor is how the land is deeded, not zoned. So again, the title of the vacant land must be held by the same individual or homeowner who is on title on the home. There is one exception—insurance coverage will not automatically extend if the vacant land is owned by a corporation. (If the vacant land is owned by a corporation, the corporation may have to pursue a commercial endorsement to obtain coverage).

Now, let’s assume that you do not own a home (you rent) but that you do own this vacant lot. If that is the case, you should call a reputable insurance agent and pursue a “Tenant Homeowner’s Policy” for your rental home. This coverage will offer you comprehensive personal liability coverage for your rental home in case a visitor or guest gets hurt in your home; and like the homeowner’s policy, this coverage will automatically extend to any property owed by you, i.e. the vacant lot. Call a reputable insurance agent to discuss the options. If you don’t have one in mind, use mine—Sheila Harden at Northwest Insurance Agency (707-360-4136). She is honest and responsive. (Also, kudos for her husband John, a local and independent film maker, whose screenplay made it to the finals at the Austin Film Festival—check out www.johnfilms.com if you have an interest in independent film making.)

Great question—my hope is that collectively we have helped our Readers ponder and act as winter approaches so that our community remains safe and uninjured. Prevention is key. As Benjamin Franklin quipped, “It is easier to prevent bad habits than to break them”.

DEAR READERS: Do you have a legal question that has been burning on your mind (but are hesitant to ask an attorney…cha-ching; cha-ching)? Please send your questions to Debra A. Newby via email (contact information below). Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Debra A. Newby is a resident of Monte Rio and has practiced law for 27 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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Divorce - Self Representation vs. Attorney

Q: My wife of 15 years said to me, “enough of this”. Our separation has been amenable enough—we mutually care for our 16-year old son.. and we even worked out all the “messy stuff” (property, mortgage, inheritance, etc) while living separately for 3 years. We are ready—should we get a divorce on our own?

Signed: T-Man--Testing the Waters.

A: Dear T-Man:

Your question evokes more than a “toe-tipping” into the waters—it is more like the swirling eddies of multiple crosscurrents. Of course, you and your wife will have to make the emotional decision of whether to split for good, but I can tell you that just because you may live and act like you are not married, does not make it legally so.

The dissolution of a marriage is a technical legal proceeding that requires court intervention and approval. Think of it as breaking a contract or promise, so the court must review all the terms of the “breach of contact”, which of course typically involves issues such as child custody, visitation, distribution of community property assets and debts, etc.

So, if you decide to get a divorce, let me offer you a very brief description of what to expect, followed by three tips.

Step One: Play the song “Going to the Chapel ‘cause I’m gonna get Married”, backwards. It sounds like this…”Going to the courthouse ‘cause I’m gonna get divorced”. The only way you can be legally divorced in Sonoma County is to show up at the new Family Law Courthouse with $350 bucks in hand (filing fee) and a fistful of legal papers. The legal papers are quite complicated but can be found on the website of the Sonoma County Superior Court.

Once you file, you will then need to hire a process server (or the Sheriff) to “serve” your soon-to-be ex. Once the other party is served, he or she has 30 days to file an “Answer” to the first pleading. Wait. We are not done. Then the parties must file a more detailed document, termed the “Marital Settlement Agreement”, which in essence contains all the “stuff” that you think you agreed upon. This Marital Settlement Agreement is then attached to the court’s Judgment. You are not divorced until the Court’s Judgment is entered into the court record.

Now, don’t get cold feet or overwhelmed by this process. If you do decide to do it on your own, you will be in the majority. It is estimated that 75-80% of family law litigants in Sonoma County represent themselves (called “Pro Se” or “Pro Per”). How long will it take? If you do it right, maybe as little as 6 months. You see, if all the papers are in order from the get-go, the court has the jurisdiction to terminate the marriage six months and a day from the first filing.

Do not fear, oh great adventurer, though. Here are three “free tips”:
1) Tip #1: Check out the Family Law Facilitator Self-Help Center, located at 3055 Cleveland Avenue, Santa Rosa. 707-521-6545. The Center has drop-in appointments (bring a bag lunch—you’ll be there awhile) or I believe you can make an appointment. Volunteer attorneys and legal assistants will guide you through the complicated paper process. They will not, however, appear with you in court, negotiate your terms of agreement, etc.
2) Tip #2: You can always hire a reputable private attorney. Find one that emphasizes family law. Most offer a 15-20 minute free consultation so you (and the attorney) can determine if it is a good fit. Of course, this option could be more of a white water ride—fun, exciting, but expensive!
3) Tip #3: You can also hire a “Document Preparation Service”. The papers are prepared by an experienced attorney for a flat fee. One service that comes to mind is “Legal Eagles”. Call 707-526-1460. (And in the spirit of full disclosure, I must inform you that this service is operated by an attorney who shares the same professional office space with me).

It’s your call and your wife’s call. Enjoy the ride!

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Sonoma County Property Tax Law

QUESTION: I paid my second installment of property taxes to the County of Sonoma Tax Collector, but the mail was returned. The envelope was supposed to be postmarked on the due date (April 10th—which was Good Friday) or the next business day following a “holiday”. I was under the impression that “Good Friday” was a holiday, so I mailed them the following Monday. The County is now imposing a hefty late penalty. Do I have any options?

Signed: “Ticked and Taxed”


ANSWER: Yuck! Bet that “Return to Sender” mail left a bad taste in your mouth. Late fees and penalties for property taxes can be quite a setback for the Taxpayer. I am not a tax expert or a calendar-keeper, but the heart of your question is the definition of a “holiday”.The website of the
Sonoma County Tax Collector (www.sonoma-county.org/tax) proclaims that if the tax due date falls on a holiday, the payment can be postmarked the next business day. Apparently the website was amended to add a link to the word “holiday” which then directs the web user to a list of county holidays…and guess what…Good Friday of this year (April 10) was not an official holiday. Obviously, the County will justify the penalty/late fee because: 1) Good Friday is not an official county holiday; and 2) property taxes are actually due November 1 and February 1, and the April 10 “delinquency date” is the ultimate “choke-point” date for taxes.

All is not lost, though. Legal definitions are tricky. So tricky that our State Legislature has seen fit to define a “legal” holiday. Government Code Section 6700-6720 is our official State Calendar for holidays. Curiously enough, “Good Friday from 12 noon until 3 pm” is listed as an official state holiday (CA Gvmt Code Sec 6700(n)). (Did you know that April 24 of each year marks the California remembrance of the Armenian Genocide? 1.5 million individuals were subjected to death marches into the Syrian desert by the rulers of the Ottoman Turkish Empire from 1915 through 1923.)

Back to the white rabbit and his pocket-watch. You could rely on the state definition of a “holiday” and contend that Good Friday is a “legal” holiday. You could even “bolster” your impression of Good Friday being a “holiday” by noting to the “Tax Man” that the local ice cream shop, for example, either closed early or closed entirely on Good Friday, as did most professional offices.

However, I must warn you…another issue may arise if you depend on the state definition of holiday (which includes Good Friday). Most of the state-recognized holidays do not apply to a city, county or district unless the county adopts them via charter, ordinance or resolution.
So…now we have a “feud” between state law and county law. County law is typically set by charter, ordinance, or resolution by the Board of Supervisors. For example, Sonoma County Ordinance, Article 1, Section 2-2-1(b) addresses the official hours of county offices, and states that “County offices shall be closed on holidays designated by the Board of Supervisors in any “resolution or memorandum of understanding or as required by law”.

You could call the County Board of Supervisors (707-565-2241) and ask their staff for a copy of any “memorandum of understanding or resolution” addressing holidays for 2009. Technically, county holidays should be adopted via resolution, not just listed on a website. More than likely, such a resolution exists, so the exercise is merely academic.

I’m out of time and space, my dear. Best of luck!

DEAR READERS: Do you have a legal question that is burning on your mind (but are hesitant to ask an attorney…cha-ching; cha-ching)? If so, please send your questions to Debra A. Newby via email (contact information below). Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Debra A. Newby is a resident of Monte Rio and has practiced law for 27 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records).

Debra can be reached at:

debra@newbylawoffice.com

phone 707-526-7200

fax 526-7202
930 Mendocino Avenue, Suite 101

Santa Rosa, CA 95401

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SHARK BAIT: Answers to Legal Questions: REDUCE YOUR RISK OF BEING SUED

Dear Readers:
As a New Year gift to YOU--the outstanding and altruistic neighbors of Sonoma County—I offer my three “top picks” of painless legally-related steps you can take to reduce the chance of being sued and to protect your assets. (My typical “Dear-Abby-Q&A-styled-column” will resume next time). Forget the resolutions to lose weight, exercise, or clean out your closets—they fade in six weeks. Act on some or hopefully all of my free tips--they will last a lifetime:


Tip #1: Don’t let strangers plan your wake.
OK...can we talk? We will die…eventually. If you do not have a will or trust, you do in fact have an “estate plan”. Strangers, not you, will decide the fate of EVERYTHING you own—the home, the bank and stock accounts, and that one-of-a-kind 1920’s chandelier that graced your Aunt’s Shangri-La. Those “strangers” are our State Legislature, as under California law, when you die without a will or trust (legally termed “intestate”) your “stuff” will likely go through probate court. Probate proceedings may take up to 1½ years. If the delay isn’t enough to bring you down a few clouds from your angelic state, think about the costs….probate costs can consume 5-10% of your estate. Even more moola will go to other fees and our Golden State (55% of your estate can go to Uncle Sam).

If your final wishes are not clearly defined in a Will and Trust, find a lawyer that specializes in estate planning. Ask a trustworthy friend or neighbor if they can recommend a reputable estate planning attorney or you can email me and I’ll reply with the contact information of local estate planning attorneys whom I trust.

Tip #2: Save a life—your teenagers, your grandparents, or an innocent driver.
If your teenager is learning to drive, consider a defensive driving class as a prerequisite to their permit or license. The California Highway Patrol (CHP) offers an outstanding classroom program called “Start Smart” for 15-19 year-olds. Check out the CHP website or contact your local CHP office. Also, take the time to enter a contract with your teenager which outlines terms such as hours of driving, geographical limits, and responsibilities of passengers. Sample contracts are available on-line. Be cautious—some sites will try to sell you a contract—freebies are available. Just remember, the contract is a written promise between you and your teen. You can and should add any terms that you and the teen agree to. Talk it out and put it on paper.

Do you know any senior drivers? Classes to sharpen and refresh driving skills are also regularly offered to seniors (and may also reduce your automobile insurance premium). As Ralph Waldo Emerson observed, “the secret of education is respecting the pupil”. Rephrased, love your I-pod-tooting teenager and your Uncle George—send them to driving safety class.

Tip#3: Spend a few extra bucks for certain types of insurance and save ten-fold.
Many of my potential clients come into my law office and are sure they have “full coverage” to help pay the bills from a car crash. Their belief is sometimes not the reality. Insurance is tricky—there are so many types of coverage. California law requires that only “liability insurance” be purchased. Liability coverage “kicks in” if the insured is found to be at fault, and the minimum required in California is only $15,000.

If the at-fault person has no insurance, you may have little recourse unless you have UM/UIM coverage and Med Pay on YOUR policy. An “umbrella policy” also offers additional protection. UM/UIM, Med Pay, and an umbrella policy will provide additional protection and peace of mind, at a fraction of the cost of your required liability coverage. Call your automobile insurance company or your insurance agent now to update your policy so that you are indeed “fully” protected.

Be Safe. Be Healthy. Laugh often and embrace every day of the New Year!

Got a legal question? Email Debra –debra@newbylawoffice.com. This column is designed as community service to address general legal principles and does not create an attorney-client relationship.

Debra A. Newby is a resident of West County and has practiced law for 26 years. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents and fatalities, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101, Santa Rosa, 95401).

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SHARK BAIT: Answers to Legal Questions: Falling Trees

If YOUR tree falls on your neighbor's house - are you responsible for the damage? Debra Newby educates you on the Yes & Yes and Why and What you should do about it.

DEAR READERS: Do you have a legal question that has been burning on your mind (but are hesitant to ask an attorney…cha-ching; cha-ching)? If so, please send your questions to Debra A. Newby via email (contact information below). Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.


Q: A tree in my yard seems to be a bit “side-heavy” and is leaning toward my neighbor’s house. I was wondering whether I should take some action…or if I don’t, whether I will be responsible if the tree falls during a winter storm and crashes into their home?
Signed: Watchful Eye in Sebastopol

Dear Watchful Eye: The short answer…”Yes”….and “Yes”. Plus, you get an A+ for timing—great question, especially in light of the rainy season being upon us. Now is the time for all readers to give a “health check” to all the plant life that supports us.

First, the basics. If a tree falls and causes damage to real property, the best course is for the owner of the damaged property to file a claim through their own homeowner’s policy. Rephrased, for purposes of getting the fallen tree off the home or fence, it doesn’t matter whose tree it is. The easiest course of action is for the owner of the damaged property to file an insurance claim ASAP. Homeowner’s have a duty to mitigate damages by preventing further damage.

If the tree was rotten, leaning, or in apparent need of trimming or removal, then the insurance company who paid the claim will argue that the tree owner was “negligent”, and in turn will try to recover whatever monies are paid out. This is called subrogation. Insurance companies have entire “swat squads” of subrogation specialist who try to recoup whatever monies are paid out when someone else was at fault. They are relentless, even without their flying jetpacks and colorful helmets.

So, if your tree was noticeably neglected and it falls, causing damage, someone will be knocking on your door soon...and they will insist that you pay for the damage, either out of your own pocket, or out of your insurance company’s pocket. Be warned: claims may affect your premium at renewal.

Next, you should also understand that not all property is covered. Typically, if a tree falls, only damaged real property is covered. This means if the tree crashed through a home, fence, patio, deck, swing set, or the household’s bicycles, the damage is covered. However, if the tree causes damage to the land, such as landscaping or exotic plants, no moola for anyone--resulting in one teed-off neighbor. The neighbor still may be emotional and attached to the damaged property as “irreplaceable”, even if the damage is covered by insurance.

Finally, if there is insurance coverage for the fallen tree, the adjuster will likely adjudicate the claim in three phases: 1) evaluation of how much it costs to remove the tree and repair the damage to real property; 2) how much it cost to remove the debris; and 3) the value of the tree itself in certain conditions (typically, no coverage for the tree due to wind and hail damage).

Bottom line…we should all be good neighbors like you and me and inquire whether our surrounding trees need attention. Before a mishap occurs you can and should take key steps: i) Inspect your trees and the surrounding property; ii) Retain the services of a respected arborist, if necessary, so that the sleeping giants remain healthy and vibrant; and iii) If the tree is near or on the property line, initiate discussion with your neighbor and reach an agreement on fairly splitting the costs of the arborist and whatever work is necessary for the health of the tree and the surrounding area.

Nature renews the spirit and is a key aspect of our existence. We are inextricably intertwined …she needs to be respected and preserved. As Alexander Pope, the 18th Century English poet, elegantly intoned:

All are but parts of one stupendous whole,
Whose body Nature is, and God the soul.



Debra A. Newby is a resident of Monte Rio and has practiced law for 27 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express
(930 Mendocino Avenue, Suite 101; Santa Rosa, 95401).

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