LEGAL AID FOUNDATION OF LOS ANGELES

Transcription

1 LEGAL AID FOUNDATION OF LOS ANGELES Volunteering at LAFLA Domestic Violence Eviction Defense Expungements

2 What this training covers: Overview of LAFLA Legal Overview: Domestic Violence Restraining Orders Unlawful Detainer Process Expungement Process

3 LAFLA is a nonprofit community-based organization that provides comprehensive free legal services to low-income individuals in greater Los Angeles. LAFLA is committed to promoting access to justice, strengthening communities, fighting discrimination, and effecting systemic change through representation, advocacy, and community education. To achieve our mission, LAFLA s expert team of attorneys, paralegals, and support staff work in the community to assist individual and group clients through advice and counsel, litigation and education.

4 Legal Assistance for Low-Income Individuals is Limited According to one study, the ratio of legal aid attorneys to low-income persons was approximately 1 to 8,373 in California. There are approx. 800 legal aid attorneys in California Only 1 person out of 4 people in poverty actually get legal help

5 Poverty in Los Angeles County The county's poverty rate is higher than the rest of the nation's. More than 1.47 million people (15% of the county's population) live on an income of $22,000 a year for a family of four. The national average is 13%. Nearly four in 10 people in L.A. County suffer from extreme poverty Individuals living on less than $5,400 a year for a single person or about $11,000 for a family of four United Way Report

6 LAFLA s Clients Often live in substandard housing Domestic Violence Survivors Victims of Crime Elderly Disabled Veterans Low-income

7 What are the Community s Legal Needs? LAFLA s Project Areas: Consumer Law Housing Law Eviction Defense Family Law Employment Law Immigration Law Community Economic Development Government Benefits Medical Legal Partnership Veteran s Justice Center Asian & Pacific Islander Community Outreach Access to Justice

8 Partnering with LAFLA Trial Experience * Client Interviews * Discovery * Depositions * Draft Pleadings/Motions * Direct/Cross * Closing arguments Abbreviated Process UDs over in about 45 days DV Restraining Orders over in about a month Expungement clinic just 2 hours a month Learn Substantive Law Landlord/Tenant, Family Law, Expungements Evidence Civil Procedure Court Fees Waived Mentoring

9 DOMESTIC VIOLENCE RESTRAINING ORDERS Jimena Vasquez Supporting Families Attorney Legal Aid Foundation of Los Angeles 9

10 What is Domestic Abuse? DV or battering is the use of force to control and maintain power over another person. 10

11 Case Study Ann is 24 years old and has two children, a 1 year old and three year old, with her ex-boyfriend. They broke up 5 months ago when she left their home after a violent incident. On that day he pulled her by the hair and violently threw her to the ground. She didn t call the police. After she left, things seemed better and he was visiting with the kids and giving her money. But, recently he has become aggressive and confrontational at exchanges. At the most recent exchange he threatened to make her life miserable. She has come to a clinic to see what she can do. 11

12 What is Domestic Abuse? DV is abuse against any of the following persons: Spouse/former spouse; cohabitant/former cohabitant; girlfriend/ex-girlfriend; person you had a child with; a child of a party; any person related by blood, adoption. or marriage. If you are experiencing domestic violence, there are many things the law and you can do to help 12

13 Different Types of Restraining Orders Emergency Protective Order (EPO) Issued by law enforcement upon verbal order by judge on call 24/7. Good for up to 7 calendar days. Temporary Restraining Order (TRO) Preliminary restraining order. Good for 21 days - until service and Court hearing. Restraining Order After Hearing (ROAH) Good for up to 5 years. Renewable before expiration Criminal Protective Orders (CPO) Gov t Attorney can request it for witness Protection of witness pending Trial Can be issued for up to 10 years 13

14 What is a Restraining Order? (In Family Law Cases) Court order (on a piece of paper) that keeps someone from doing something Domestic Violence Prevention Act DVPA is the law that sets the rules for restraining orders. REQUIREMENTS: abuse and domestic relationship. Definition of abuse: intentionally or recklessly to cause or attempt to cause bodily injury or engage in behavior prohibited by Family code Section 6320 (stalking, harassment, etc) 14

15 Types of Orders Ann can get? Three Primary Orders: Stay-away order from you, home, work, car, school - usually 100 yards Personal conduct orders- not harass, attack, strike threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance or block movements Residence exclusion- also known as a kick-out order when there is a right under color of law to possession 15

16 Types of Orders you can get? Custody Visitation Child Support Firearm restriction(relinquish within 24 hours of service) Batterer's Treatment Program Property Control (Exclusive Use) Property Restraint (Married persons only) Debt Payment Animal Protection Attorneys Fees and Costs Restitution (Payment for costs and services) 16

17 The Process of Getting a RO: Request RO and TRO (temporary RO) Judge decides same day whether to grant TRO Whether or not TRO granted, given a Court day for hearing If granted Court gives you ROAH Attend hearing where Judge decides whether to grant the RO Serve the other side before the next hearing 17

18 Request For Restraining Order 18

19 Request for Restraining Order 19

20 Drafting & Writing The order is form driven Victim declaration is key to getting a restraining order Petition must state facts sufficient for issuance of TRO application under Fam Code 241, and 6301 Use open ended questions, understand that clients have been traumatized and may be unfocused and not remember things well or chronologically 20

21 Drafting and Writing 21

22 Drafting and writing 22

23 Going to Court Ann must show: Reasonable Proof of Past Act or Acts of Abuse FC 6300 By a Preponderance of the Evidence FC 210, CRC 5.21, EC 115; in dicta Konrad v. Ritchie, 115 Cal.App.4th 1275, 1288 (2004) What Proof Does Ann have? Text messages Voice messages Pictures witnesses 23

24 Restraining Order After Hearing If prevail, the court will find that the party has abused the other A restraining order should issue for up to 5 years The court will then make custody orders if necessary. 24

25 The Work of LAFLA s Supporting Families Unit Direct provision of family law and immigration law services to survivors of domestic abuse, trafficking, and sexual assault Family law intake conducted via walk-in courthousebased clinics and through direct referrals from service providers and government agencies Limited representation in family, immigration and probate court and appellate work Case management services 25

26 Legal Aid Foundation of Los Angeles Family Law/Domestic Violence Clinics Courthouse-based clinics all first-come, first-served, walk-in clinics Toll Family Law Counseling Center 111 N. Hill Street, Room 245 Los Angeles, CA M, W, F 8:30 a.m. to 11:30 a.m. and 1:30 p.m. to 3:30 p.m. Long Beach Domestic Violence Clinic 415 W. Ocean Blvd., Room 40-C Long Beach, CA M, W, F 9:00 a.m. to 11:30 a.m. and 1:00 p.m. to 3:30 p.m. Santa Monica Domestic Violence Clinic 1725 Main Street Santa Monica, CA Monday through Friday 8:30 a.m. to 11:00 a.m. Client Information Line (800)

27 LEGAL AID FOUNDATION OF LOS ANGELES The Frontline Law Firm for Poor and Low-income People in Los Angeles Eviction Defense Training

28 What this training covers: Importance of eviction defense Brief Overview of Unlawful Detainer Law and Process

29 Importance of Eviction Defense Represent low-income tenants who otherwise would lose in court Help prevent homelessness Help stabilize families

30 UD Filings in LA County Stanley Mosk Courthouse (Downtown L.A.): 18,727 Santa Monica Courthouse: 4,643 Long Beach Courthouse: 4,255 Inglewood Courthouse: 2,972 Torrance Courthouse: 1,811 San Pedro Courthouse: 1,371 Bellflower Courthouse: 1,339 East Los Angeles Courthouse: 817 Total UDs filings county wide: 74,417

31 What is an Unlawful Detainer? Cal. Civil Procedure 1161(1) = When he or she continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him or her Unlawful Detainer Proceeding = A statutory procedure by which a landlord can legally evict a tenant.

32 UD Statutory Law Unlawful Detainer Process (CCP a) Hiring of Real Property (Civil Code ) Los Angeles Rent Stabilization Ordinance (L.A.M.C ) Costa-Hawkins Rental Housing Act (Civil Code ) Ellis Act (Condo Conversion) (Government Code )

33 Secondary Resources California Practice Guide: Landlord-Tenant, The Rutter Group California Eviction Defense Manual, Moskovitz (CEB) California Landlord-Tenant Practice, Moskovitz (CEB) California Tenants: A Guide to Residential Tenants and Landlords Rights and Responsibilities Landlord-Tenant Handbook

34 Stages of the Eviction Process 1. Notice a) Type of Notice b) Service of Notice 2. Complaint 3. Answer 4. Trial Preparation 5. Settlement 6. Court

35 EVICTION PROCESS THE UNLAWFUL DETAINER (EVICTION) PROCESS 3/30/60/90/120-DAY NOTICE SUMMONS AND COMPLAINT 5 days ANSWER About 1 week TRIAL NOTICE About 1-2 weeks COURT SETTLE TRIAL DISMISSAL I HAVE NO GOOD LEGAL DEFENSES I WANT TO MOVE I HAVE NO $$ TO PAY BACK- RENT I HAVE GOOD LEGAL DEFENSES I WANT TO STAY IN MY HOME I HAVE THE $$ TO PAY BACK- RENT TENANT STAYS & PAYS RENT TECHNICAL DEFENSE HABITABILITY DEFENSE WIN LOSE LOSE WIN PAY RENT In 5 to 14 days you will receive a 5-DAY NOTICE TO VACATE PAY REDUCED BACK RENT SHERIFF LOCK-OUT

36 1st Stage: Types of Notices 3/10/14 Day Pay or Quit 3/10/14 Day Perform or Quit 3 Day Quit 30 or 60 Day Notice to Quit Situations where service of the notice is not required

37 Defects in the Notice (C.C.P. 1161) All notices must strictly comply with CCP 1161 (i.e. must be written) Common Violations: 1) Lack of Who, What, When & Where 2) Generally, cannot include Late Fees 3) Must include Forfeiture languag Cannot demand rent beyond one year Compliance begins to run the day AFTER notice is served. Perform or Quit Notices must allow tenant the opportunity to cure

38 1 st Stage: Service of the Notice A landlord may serve a tenant with the notice using the following (CCP 1162) : - Personal Service - Substitute Service - Nail and Mail Court Notice of Unlawful Detainer Landlord has the burden of proving service was completed if at issue.

39 2 nd Stage: The Complaint Begins the eviction process Notice must be attached to the complaint Lease Agreement Court Notice of Unlawful Detainer

40 Defenses: Defects in the Complaint (CCP 1166) Lease is not attached Tenant is not properly named Tenant is named but the address is incorrect Plaintiff has no standing Complaint filed before expiration of the notice

41 3 rd Stage: The Answer Tenants only have 5 days to respond to the complaint Not filing an Answer will result in Default Judgment Tenant must assert all potential claims or waive them Tenant must also assert any relief sought (i.e. repairs, etc) Tenants have 5 days as of right to file a first Amended Answer. After 5 days, they must seek leave to amend from the court.

42 UD Defenses Technical Landlord must strictly comply with UD procedures Defective Notice Overstates rent due Improper late fees Defective Complaint complaint filed before notice expired Standing No L/T relationship Other Habitability Rent Control violations Waiver/Estoppel Retaliation Discrimination Subsidized Housing Defenses Reasonable Accommodation

43 Defense: Breach of Implied Warranty of Habitability (CC ) Landlord s breach of this provision must be substantial Conditions must affect tenants health and safety Landlord s notice of the uninhabitable conditions may be actual or constructive Breach of Implied Warranty of Habitability requires serious and adverse housing conditions

44 Defenses: LA Rent Stabilization Purpose Ordinance (LAMC et. Seq) Protect tenants from excessive rent increases within the Los Angeles city Qualifying Criteria: Property in the City of Los Angeles Two or more units on the lot (Single Family Dwellings not included) Certificate of Occupancy issued on/before 10/1/1978 Governs: Allowable rent increases Registration of rental units Bases for eviction (tenants can only be evicted for Just Cause reason) Relocation Assistance

45 Stage 4: TRIAL CONSIDERATIONS

46 Pre-Trial Preparation Discovery Same old discovery, shortened time frame (CCP (b)) Discovery should be served within a few days of filing an Answer Ex-parte applications for Motions to Compel and continuances (CRC ) $ in sanctions if P fails to respond Transcript Reimbursement Fund for Depos Pre- Trial Motions Motion for Summary Judgment (C.C.P. 437c) Motion for Judgment on the Pleadings (CCP 438(2)) Motion to Compel (C.C.P ) Jury Trial Demand

47 Client & Case Preparation Secure an interpreter, if needed Interview Client(s) and witnesses Collect evidence and prepare trial exhibits If novel or complex issue, prepare trial brief

48 Step 5: Negotiations with Opposing Party Timing of Settlement - Client Goals - Strength of Case - Defenses and Jury Demands Types of Settlement Terms - Pay & Stay - Time to Move & Waiver of Past Due Rent - Waiver of Attorney s Fees & Costs - If default, judgment may be entered - If complied, can request dismissal. Lodging Stipulation vs. Stipulation for Judgment Always SEAL record (C.C.P )

49 Step 6: Day of Trial The Court Department 94: - Less formal than most courtrooms; No attorney check-in - Commissioner gives an introduction in the morning and the Court will conduct a roll call. - All parties encouraged to settle prior to trial - Law Motion is heard at 1:30 pm everyday Trial Process - Jury Trial or Bench Trial - Settlement Conference - Sent to Dept. 1 for courtroom assignment - Informal Proceeding: usually no opening statement, just direct and cross of witnesses and brief closing arguments - Submit Required documents for Jury Trials

50 Post-Trial Win Make sure client pays all rent due Motion for attorney fees (pursuant to lease) Costs Memorandum Lose Inform tenant of lockout in 1-3 weeks 5 day notice to vacate posted before lockout occurs Relief from forfeiture of the lease (CCP 1179) Consider appeal or post judgment motions

51 CALIFORNIA EXPUNGEMENT BASICS Legal Aid Foundation of Los Angeles Rene Pena

52 AGENDA Statistics Remedies / Eligibility Requirements for Dismissals Procedure and Practice

53 What is a Record Expungement? A record expungement allows individuals who have completed their sentence(s) to dismiss some misdemeanor and some criminal convictions if particular requirements are met. LAFLA operates an expungement clinic on the second Tuesday evening each month to help individuals draft their expungement petitions and declarations on a pro per basis

54 RACIAL DISPARITY People of color constitute 60% of our prison population while remaining a distinct minority of our general population. Racial/Ethnic Disparity in Incarceration in CALIFORNIA Black : White Ratio 6.5 to 1 We incarcerate Latinos at almost twice the rate of their white counterparts.

55 Employment Having a criminal record reduces callbacks by 50% Background checks can be misleading. Many people with criminal records have never been convicted of a crime. 1/3 of felony arrests never lead to a conviction (US Bureau of Justice Statistics) Ban the Box Removes questions about convictions from state agency, city, county and special district job applications and postpones such inquiries until later in the hiring process (July 2014) Some exceptions law enforcement Target has removed questions about criminal history from its job applications

56 Statistics Approximately 1 in 4 Americans (65 million) has a criminal record The US has 5% of the world s population and 25% of the world s prisoners. One in 31 adults are under some form of correctional control. One in 99 adults are living behind bars in the U.S. This marks the highest rate of imprisonment in American history Since 1970, our prison population has risen 700%. US Bureau of Justice Statistics 2012 and Census estimates 2012

57 REMEDIES

58 AVAILABLE REMEDIES Dismissal (aka Expungement ) (PC ) When probation is granted (PC a) When probation is not granted & conviction is not a felony or citation/traffic ticket Reducing felony to misdemeanor (PC 17(b)) Modifying/terminating probation (PC ) Other Remedies Felonies With Prison Certificate of Rehabilitation/Pardon No Conviction Sealing of Arrest Record Juvenile Records Sealing Federal Convictions Federal Public Defender s Office

59 Eligibility

60 Eligibility Not currently involved with the criminal justice system P.C (a) / a(a) / (a)(3) Not serving a sentence Not on probation/parole Not facing charges

61 Requirements for Set Aside and Dismissal

62 WHAT IS A DISMISSAL? It sets aside or dismisses some criminal convictions under Penal Code , a and It s a remedy for adult convictions where a prison sentence was not executed It is a remedy for California convictions The conviction remains on your record for many purposes, including sex registration and immigration consequences. A dismissal does not erase or delete the entry from a person CA criminal history report.

63 Is Dismissal Mandatory? In some instances, an individual is entitled to a dismissal as a matter of right Evidence of pre / post probation conduct is irrelevant Qualifications: Successfully complete all terms and conditions of probation Prison sentence never executed Conviction not a serious sex offense Not on parole or probation Paid all fines/fees/restitution Some offenses are never mandatory Penal Code 191.5(b) or 192(c); Vehicle Code , , 14601, , , , , 20001, 20002, 21651(b), 22348(b), 23103, 23109(a), 23109(c), , 23140(a), 23140(b), 23152, 23153, or Vehicle Code 12810(a) (e) DUI s, suspended license, reckless driving and related offenses

64 Standard for Discretionary Dismissals Discretionary dismissals are in [the court s] discretion and the interests of justice P.C (a), a(a), (a) Court will consider many things, even those that are irrelevant if dismissal was mandatory Unpaid fees/costs that are not condition of probation Post and pre-probation conduct Upstanding citizen: Have no IRS arrears Generally have no child support arrears Have no outstanding parking tickets Have otherwise met the requirements for an expungement (no current charges for any offense, completed all requirements of probation, paid all fines/fees/restitution, etc.) If dismissal is discretionary, it s suggested that defendant attend hearing and provide supporting documentation: declaration, letters of support from church, work, diplomas/certificates,etc

65 Reduction UNDER 17(b)(3) May petition the court for reduction of a felony to a misdemeanor at the same time Felony to misdemeanor under P.C. 17(b)(3) Wobblers can be charged as either a felony or misdemeanor Look at the statute Do not need to disclose as a felony Will still count as a strike Always discretionary and require a declaration

66 Wobbler Felony PC 368(b) (1) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an elder or a dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years.

67 Straight Felony PC 368(b) (2) If in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in subdivision (e) of Section , the defendant shall receive an additional term in the state prison as follows: (A) Three years if the victim is under 70 years of age. (B) Five years if the victim is 70 years of age or older.

68 Procedure and Practice

69 RAP SHEET

70

71 DISMISSED CASE

72 A Dismissal will not Will not reinstate the right to possess a firearm, Will not prevent the dismissed conviction from being used as a "prior" if defendant is prosecuted for another offense, Will not prevent the US government from considering the offense for immigration purposes, Will not relieve sex offenders of their duty to register, Will not re-instate driving privileges if they have been suspended as a result of the case

73 Criminal Record History Court dockets/transcripts or RAP sheet Preferably a client would have both their RAP sheet and a docket for the specific cases that they want expunged. Dockets provide in-depth information on one case Dockets show if probation was terminated and fines/fees paid Dockets don t show if the person got another arrest/conviction. RAP sheets show a complete criminal history Rap sheets provide short version of events Client must do cost benefits analysis of time and money Rap sheets provide a complete timeline of arrests/convictions. You can identify errors in your criminal history (previous expungements not reported, identity theft) RAP sheet costs $25-60 and usually are fairly quick to get (LiveScan) Dockets costs are minimal (often free) but require trips to courthouses.

74 Petition forms Los Angeles County uses Judicial Counsel forms CR-180 Petition for Dismissal CR-181 Order for Dismissal FW-001(Request to Waive Court Fees) FW-003 (Order on Court Fee Waiver) CR-115 (Defendant s Statement of Assets) MC-030 (Declaration) Proof Of Service Some counties use their own local forms so check county website Some counties/courts also have their own procedures

75 Hearings Hearings are set in criminal courtrooms When you arrive, ask the District Attorney or the City Attorney if they oppose the petition. The prosecution will either oppose, not oppose, or submit to the court. Typically they submit when they haven t reviewed the file. Make your appearance on the record, and advocate for your client. Especially for discretionary expungements. The judge will rule on the order. If you don t attend the hearing and the order is denied, you will likely not get any information about why the petition was denied.

76 LEGAL AID FOUNDATION OF LOS ANGELES Rene Pena Jimena Vasquez Phong Wong Pro Bono Director