Floating Home Destroyed

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The laws passed by Congress are known as “statutes” and most of them are organized in a logical manner into something known as a “code.”  When a statute is placed into a “code” it is said to have been “codified.”  Not all statutes are organized into “codes,” but most of them are.

The United States Code is divided into different sections known as “Titles” and each “Title” concerns a different area of law.

The very first “Title” in the United States Code begins by defining a number of important words.  The third law in the first “Title” of the United States Code defines the word “Vessel” as any “watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”

Another article reviewed a number of federal cases concerning exactly what is a vessel.  Some of the cases are obvious, and others are not.  Some are humorous.  One of the cases

held that “A stern wheel steamer licensed for the coasting trade, formerly a ferryboat, which is used for moving a floating house, in which an exhibition or circus show was conducted, is a vessel.”  Another of the cases held that “A semi-tractor trailer (with wheels) which drives over a frozen lake is not a “vessel” even if the load which it is towing breaks through the ice.”

It’s not hard to imagine the kinds of arguments that could have been made in the case of the semi-tractor trailer.  One party may argue that a semi-tractor trailer provides a means of transportation.  When that semi drives over the top of a frozen lake, then that semi is in fact transporting people and things over water B even though that “water” is located under a sheet of ice.  When the ice breaks, then the whole thing ends up in the water – so the semi is, under this definition, a “vessel.”

In such a case, the other side could have argued that under that type of logic every car, truck, motorcycle or bicycle is a “vessel” when it crosses any bridge over water.

You have to give the attorney “style points” for trying to convince a federal court that “a semi-tractor trailer isn’t a truck, it’s a vessel – at least when it’s being driven on a frozen lake.  It’s a bit like trying to force a square peg into a round hole – but you never know for sure, sometimes those square pegs fit.

Whether or not an object is a “vessel” can make a difference.  There’s a whole body of federal law known as “admiralty” or “maritime” law, and this type of law has its own rules and procedures.  The outcome of any given case can be profoundly affected by whether or not a case is governed by “maritime” law.  So there can be real money at stake in determining whether or not any given object is a “vessel.”

In 2002, a person bought a 60-foot by 12-foot “floating home.”  The home consisted of a “house-like plywood structure with French doors on three sides.” It also contained “a sitting room, bedroom, closet, bathroom, and kitchen, along with a stairway leading to a second level with office space.”  There was an empty “bilge” space underneath the main floor that kept it afloat.  The home had no means of propulsion or steering. Instead, it only floated, and though it could be towed over water to different places, the home had no means of getting anywhere under its own power. The floating home was not a “houseboat” because under federal law a “houseboat” is a “motorized vessel . . . designed primarily for multi-purpose accommodation spaces with low freeboard and little or no foredeck or cockpit.”

After buying the “floating home” the new owner had it towed to a marina owned by a city in Florida.  The city unsuccessfully tried to evict the owner, and finally the city filed a lawsuit against the owner in federal court under maritime law.  The lawsuit sought to impose a lien for “dockage” fees and damages for trespass.  At trial, the owner claimed that the suit should be thrown out because the “floating home” was not a vessel, and so federal maritime law didn’t apply.

You be the judge.  Is a floating home like this a vessel – or not?  If you said “yes – it is a vessel” then you would have agreed with the trial court, which awarded the city $3,039.88 in “dockage” fees plus $1 for damages for trespass.

But if you said “no” then you would have agreed with the United States Supreme Court, who said that in order to be a “vessel” an object must be capable of being used “as a means of transportation on water.”  The Supreme Court found that the “floating home” itself was transported, but that it didn’t transport people or things, and so it was not a vessel.

The case is reported as Lozman v. The City of Riviera Beach, Florida (2013) 2013 DJDAR 617.

So what finally happened?  Before the case was heard by the Supreme Court, the “floating home” was sold to pay the judgment in favor of the city.  The city bought the home and destroyed it.  The case eventually went to the Supreme Court, where the decision of the trial court (and the other intermediate courts) was reversed.  So the owner won – but too late to save his “floating home.”  Apparently the owner was left with a claim against the city for money damages.

Legal considerations involving floating homes, and any determination about whether or not an object is a “vessel” or whether or not any case is subject to maritime law, involve complex legal considerations.  Persons with such questions should consult competent legal counsel.

Water Taken For Granted

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           I recently received a letter from a United States Congresswoman with a suggestion that her constituents use less water.  Great idea.  The letter was accompanied by a small pamphlet filled with suggestions for using less water.

I don’t often get letters from members of Congress.  But this one was particularly useful.  I glanced over the pamphlet to see if there was much I could do to save water at home.  Most of the suggestions were based on common sense – suggestions like don’t leave your hose running, fix your leaky faucets, turn off the faucet while brushing your teeth — those types of things.  The pamphlet described the significant price of water – and highlighted a resource that most of the time seems invisible, which is domestic water use.

I’ve known people who own properties out in rural areas – out in the “country.”  These were farmers, or ranchers, or people who just like their privacy.  But you don’t have to talk to these people for very long before you realize that they are very, very attuned to water use – both domestic water use, as well as water disposal.  They’ll tell you they can’t just turn on a tap and use all the water they want – they have to rely on wells, and wells have limited “recharge” rates, so they often have holding tanks for water storage so that they can have more water available “on demand.”

The fact that water use is invisible to most of us is a tribute to the effectiveness of the work done by our public utilities and water resources boards.  If the water supply were limited or disrupted, we’d know it – in a hurry.  I know that some people keep a couple of 50 gallon barrels of water stored outside their homes  – just in case.  And in the event of a water supply disruption, most people would have a large water heater full of water, and many, many water heaters have a convenient drain spigot located right at the bottom of the tank – so that most people would have something like fifty gallons of water immediately available in the event of an emergency.

But overall – the municipal water supply systems work seamlessly, and invisibly.  As long as you can pay your bill, the water just keeps on flowing.

Most people probably don’t ever think much about the water boards that help oversee and develop the water distribution system.  For the most part, these boards work in the background.  But there was a recent case decided by the United States Supreme Court that arose out of some statements made by a water board member at a public meeting held by a water district board.

In 2007, a water board meeting was held where a new board member attended.  At the meeting, this new board member introduced himself as a retired marine with 25 years of service.  He claimed that he had received the Congressional Medal of Honor in 1987, and that had been wounded many times by the same person.  However, the Supreme Court found that none of these statements were true.  The statements weren’t made to obtain employment or financial benefits, nor to get privileges for those who had received the Congressional Medal of Honor.  Instead, the statements were just made by way of  “introduction.”

Unfortunately for this new board member, his statements violated a relatively new federal law known as the “Stolen Valor Act of 2005″ which makes it a crime to make such false statements.

This law makes it a federal crime for a person to falsely represent that he or she has been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.  Violators can be fined, or imprisoned for not more than six months, or both.  If the false representation concern the Congressional Medal of Honor, then the term of imprisonment could be as much as 1 year.

The water board member who made the false statements pleaded guilty to a violation of the federal Act, but he reserved his right to appeal his claim that the federal Stolen Valor Act violates the First Amendment right to free speech and is therefore unconstitutional under the United States Constitution.

The Ninth Circuit Court of Appeals found the Stolen Valor Act to be unconstitutional.  The United States Supreme Court granted review.

In its opinion, the Supreme Court acknowledged the government’s interest in preserving the honor associated with the Congressional Medal of Honor.  The Supreme Court noted that the Congressional Medal of Honor was established in 1861.  It is reserved for one who has distinguished himself or herself “conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.”  The Supreme Court cited The White House Blog, as visited on June 12, 2012, for several instances where the Congressional Medal of Honor has been awarded. The Supreme Court’s opinion mentioned the situation of “Dakota Meyer who in 2009 drove five times into the midst of a Taliban ambush to save 36 lives.”  The Court’s opinion also noted the case of “Desmond Doss, who served as an army medic on Okinawa and who, on June 5, 1945, rescued 75 fellow soldiers, and who, after being wounded, gave up his own place on a stretcher so others could be taken to safety.”  The Court’s opinion described the case of “William Carney who sustained multiple gunshot wounds to the head, chest, legs, and arm, and yet carried the flag to ensure it did not touch the ground during the Union army’s assault on Fort Wagner in July of 1863.”  The Court wrote that “The rare acts of courage the Medal celebrates led President Truman to say he would ‘rather have that medal round my neck than . . . be president of the United States.’”

The Supreme Court’s opinion showed little sympathy for the water board member who had made the false statements. But the Court also noted that a law which outlaws false statements, with nothing more, can be an unreasonable restraint on the right of free speech.  The Court noted that government can usually outlaw false speech which is made to obtain a job or other benefits through fraud.  The Court also noted that the law can properly prevent a person from falsely claiming to speak on behalf of the government.  The law can also criminalize false statements under oath, which constitute perjury, and the law can criminalize false statements made to government officials.  But the Supreme Court held that where, as here, the law only seeks to criminalize false statements which are not made to obtain employment, or are not perjury, or which aren’t made to government officials, then in such cases the government may not be able to properly pass a law that makes such false statements a criminal act.  The Court stated that “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.  Though few might find [the water board member’s] statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.”  As a result, the Supreme Court upheld the judgment of the Court of Appeal, which had found the Stolen Valor Act is unconstitutional.  The case is reported as United States v. Alvarez (2012) DJDAR 8961.

Care should be used in considering the Supreme Court’s opinion in this matter.  Honesty truly is the best policy.  There are many laws which make it a crime to make false statements in certain situations (for example, in loan applications), and there are many, many other laws which provide for civil liability when false statements are made.  Those who make false statements do so at their peril, both civilly and criminally.  Viewed in its proper light, the Supreme Court’s opinion in the Alvarez case is not so much an endorsement of the right to make false statements as it is a decision which upholds the right to speak freely without unreasonable governmental intervention or restriction.  But the laws concerning free speech are complex, and any given situation can have a multitude of outcomes.  The complexity of this area of the law can be seen in the fact that two federal courts of appeal reached conflicting decisions on the very same issue of whether or not the Stolen Valor Act of 2005 is constitutional.  When truth is spoken, then the speaker need not ever have concern about the potential consequences of having spoken or written an untruth.  Of course, in legal matters even speaking the truth, or speaking at all, can have significant consequences, and that is one of the reasons why persons involved in any legal matter at all should consult legal counsel.

SURETY: An Important Ancient Principle

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The concept of being a “surety” goes back nearly as far as recorded history.

Perhaps the first recorded instance of “surety” occurs in connection with the experience of Joseph as recorded in the Book of Genesis in the Bible.

As recorded in the Bible, Joseph had been sold as a slave by his brothers for 20 pieces of silver.  His new owners took him into Egypt, where he was sold to Potiphar, Captain of the Guard for the Egyptian Pharaoh.  Joseph was wrongfully accused by Potiphar’s wife, and he was sent to prison.   While still a prisoner, and by divine assistance, Joseph was elevated to a position of responsibility in the prison.

The Egyptian Pharaoh had a series of remarkable and vivid dreams.  He heard that Joseph could interpret dreams, and Pharaoh sent for him. When Joseph arrived, Pharoah described the dreams to Joseph, and Joseph interpreted them.  Joseph also warned Pharaoh about an upcoming famine that would be 7 years long, and Joseph recommended a food storage program be followed. Pharaoh was impressed, and he made Joseph the ruler over all of Egypt, second only to Pharaoh.

After the famine started, Joseph’s family back in the land of Canaan was suffering from the famine.  Joseph’s brothers came to Egypt to buy some of the food that Joseph had recommended be stored.  They met with Joseph, but they did not recognize him.  Joseph sold them food, but then asked them if they had yet another brother.  They said that they did, and Joseph told them that they were not to return to Egypt unless their last brother came with them. Joseph’s brothers then returned to their home in Canaan.

After a period of time, the brothers and their families needed more food.  The brothers told their father, Jacob, that they could not return to Egypt unless they took their last brother with them.  Their father resisted – he didn’t want to put his last son at risk.  As recorded in Genesis chapter 43, Judah made the following statement to his father: “Send the lad with me, and we will arise and go; that we may live, and not die, both we, and thou, and also our little ones.  I will be surety for him; of my hand shalt thou require him: if I bring him not unto thee, and set him before thee, then let me bear the blame for ever.”

Jacob relented, and let Benjamin, the youngest brother, go to Egypt with Judah and his brothers.  After several dramatic events, it looked like Benjamin was going to become a slave in Egypt and would not be allowed to return to his father Jacob.  In a very moving plea, as found in Genesis chapter 44, Judah explains to Joseph that Jacob’s life is “bound up in the lad’s life” and that it would literally kill Jacob if Benjamin did not return.  Judah then says to Joseph “For thy servant became surety for the lad unto my father, saying, If I bring him not unto thee, then I shall bear the blame to my father for ever.  Now therefore, I pray thee, let thy servant abide instead of the lad a bondman to my lord; and let the lad go up with his brethren.”  Because of his surety pledge to his father, Judah offered himself to become a slave or servant, in lieu of his brother Benjamin becoming a slave.

As shown in the story of Joseph, a surety is one who is responsible for another.  For Judah, being a “surety” meant that Judah agreed to be responsible for his youngest brother’s personal well-being, and if necessary he would offer his own self, his own life, or his own freedom instead of his brother’s life or freedom being lost.

In modern legal usage, a surety is usually a person or a company who agrees to answer, or be liable, for the debt of another.

It may seem odd that one person would agree to be responsible for the debts of someone else.  But this arrangement can be seen all the time in financial transactions where one family member agrees to be responsible for another family member.  The person who serves as surety is usually better positioned financially than the person being helped.  The surety often has an interest in the financial well being of the borrower – perhaps the surety wants to see that the borrower receives credit for some type of a purchase.  This type of surety is sometimes known as  a “Voluntary Surety.”

Some commercial bonding companies will even write bonds where these companies agree to serve as a surety for someone else.  These companies agree to serve as surety in exchange for a price or a fee – in other words, it is part of their business. This type of surety is sometimes known as a “Compensated Surety.”  Surety Companies, or Bonding Companies, write bonds and thereby become a surety in certain legal matters, when one person is required to provide a bond for the benefit of another.

For example, if a plaintiff wins a lawsuit and receives a money judgment, and if the defendant wants to appeal the judgment, then in many cases the plaintiff can go ahead and collect on the judgment while the appeal is being decided.  However, it may be impossible for the defendant to get its money back if the case is reverse on appeal.  If the defendant files an appeal bond, then the plaintiff may be stopped, or stayed, from collecting on the case until the appeal is concluded.  There are other legal proceedings where bonds are either required or preferred.

Bonds are common in contractor law, where the law generally requires a contractor to have a bond before the contractor can sign contracts and work as a contractor.  The concept is that if the contractor should become liable on a construction based claim, then the surety will be liable to pay the claim up to the limit of the bond amount if the contractor can’t or doesn’t pay.

Getting a bond from a bonding company can be expensive.  The law allows for private individuals to also serve as sureties in some situations.  However, such private individuals have to meet certain requirements.  For example, a court officers can’t serve as a surety – and a member of the State Bar of California can’t serve as a surety.  Also, a private surety must be a California resident, and must either own real property or be a householder.  Such a private surety must also have a net worth more than the amount of the bond, and this net worth must consist of real property or personal property located in California, minus the debts and obligations of the person.

A Surety is a person or a company who agrees to be responsible for the debt of another person.  A person can act as a “Surety” either on a voluntary basis, or in exchange for a fee.  Most bonding companies act as “Surety” in exchange for a fee.

Some homeowners may have questions about the consequences of a foreclosure.  Some homeowners are concerned that following foreclosure, a lender may be able to subtract deposits out of a depositor’s account without further notice.  Other homeowners are concerned about their credit and their ability to buy a new home in the future.  Others are concerned about whether or not they may be taxed on the forgiven amount of their loan.

These are all valid questions, a deserve careful evaluation in connection with planning a course of action.  For some borrowers, a short sale is the best approach to take.  Others may benefit more from a foreclosure.  Others may want to attempt to obtain a release of liability from their lender in exchange for a deed in lieu of foreclosure.  And still other may be better off in Bankruptcy.

The considerations involved in planning an optimal strategy involve complex issues, and the best strategy for any given individual often hinges on issues of lender liability, foreclosure law, lending law, tax law, bankruptcy law, and the likely credit effect of any given course of action.

In addition to all of these considerations, there is another area of great concern to some borrowers.  These considerations involve the use of a surety, or guarantor.

Borrowers sometimes have parents, friends, family members or others “co-sign” on a loan.  When these borrowers go into default on their loan, they are often very concerned about the effect of such a default on these “co-signers.”  Many times both the borrower and the co-signer want to know what will happen to the co-signer’s assets in the event of a foreclosure, short sale, or a deed in lieu of foreclosure. In addition, some co-signers want to know the likely effect on them if the borrower were to file a petition in bankruptcy.

The concept of Surety is an ancient one. In addition, Shakespeare based one of his plays on the concept of a Surety.  In the Merchant of Venice, Shylock is a moneylender.  Bassanio obtains a loan from Shylock, and Antonio agrees to serve as surety, which means he will be personally liable for the debt if Bassanio should not repay the money which was loaned.  Bassanio fails to repay the debt on time, and Antonio doesn’t have enough money to pay the debt.  As a result, Shylock lays a claim to the collateral – which is a pound of Antonio’s flesh.  In a dramatic turn of events, Shylock is told that he can have his pound of flesh – but not a drop of blood.

In present-day United States, the contract between Shylock and Antonio allowing Shylock to take a pound of Antonio’s flesh would never be enforced.  Antonio might remain liable for money, but he would not be required by a U.S. Court of law to give up his life or a portion of his body as provided by the contract.  However, even though the precise terms of the agreement between Shylock and Antonio would not be enforced, the concept of a surety is valid under U.S. law.

Some borrowers have used a surety to help them buy a home.  These sureties are often parents or other family members who have agreed to help another family member buy a their property.  In these situations, the buyer is often unable to qualify for the kind of loan that would be needed in order to buy a home.  The surety either has the good credit or the income that the borrower lacks.  As a result, parents or others often “co-sign” on a loan to other family members.

In most purchases of residential real estate, this “co-signing” occurs by having the surety act as a “co-borrower.”  This is different from a situation where the parents or other family members act as a “surety.”  California law has specific rules, protections, and defenses that apply to sureties.  When a family member acts as a “surety,” then these specific protections, rules and defenses would apply.  However, most residential home loans are set up so that the “surety” actually signs as a “co-borrower.”  In these situations, the family member actually goes on title as an owner, and signs the promissory note and deed of trust as a borrower, or “co-borrower.”  This means that the family member isn’t just guaranteeing payment by the borrower; instead, the family member is actually a borrower in the primary sense.  It means the family member has borrowed money at the same time as the buyer, and the borrowed money has been used to buy a property (or to refinance a loan secured against such a property).  This means that for liability purposes, the buyer and his or her family member will in most cases be treated the same, and the “co-signing” family member will not receive any special treatment nor any special protections or defenses.

If borrowers have “sureties,” “guarantors” or “co-signers”, then such borrowers often want to “look out” for their sureties, and they are often concerned about the consequences to the surety if the borrower cannot repay the loan as agreed.

The term “co-signer” is actually an informal term that is commonly used to refer either to a “Surety,” a “Guarantor” or a co-borrower.  California law has for the most part eliminated differences between a  “Surety” and a  “Guarantor.”  But the consequences for a “surety” and a “Co-borrower” may be different.

The California Civil Code provides a number of protections and defenses for sureties.  But these protections may not apply to a situation where a family member or friend acts as a “co-borrower” instead of as a guarantor or surety.  When a friend or family signs as a “co-borrower”, then that person is actually a borrower of the money.  In such situations, the “co-borrower” will generally sign the promissory note or other loan document, along with the deed of trust.  Many times the lender will require that the “co-borrower” actually become an owner of the property and that they go on title, even when the “co-borrower” is primarily acting as a surety or guarantor. In such situations, it is very likely that if the buyer/borrower defaults, that the “co-borrower” will be treated as a borrower for many, most, or all purposes.

For example, a default in loan payments can negatively affect a borrower’s credit rating.  Such a default may not negatively affect a surety’s or a guarantor’s credit rating, but such a default would almost certainly affect the credit rating of a “co-borrower.”   Some foreclosures and short sales can produce a negative tax consequence for a borrower.  Professional tax advice would need to be obtained as to whether a “co-borrower” would also experience negative tax consequences.  However, any potential negative consequences following a default may be different for a surety than for a co-borrower.  In some situations, a surety may be relieved of liability if a creditor changes the obligation of the borrower – but a “co-borrower” may not receive this benefit.

Suretyship, guarantor and co-borrower situations can be complex, and the legal principles, statutes, and cases that apply to such situations can also be complex.  Persons involved in suretyship, guarantor or co-borrower situations should consult competent legal counsel and should obtain professional tax advice.

Deal Points Can Be Critical

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So when is a deal not a deal?  The answer is, it depends.

Sometimes it seems like half of the law is tying down loose ends.  And sometimes it seems like the other half consists of getting written commitments so people don’t change their minds.

Here’s a good example.

A Seller sold a house to a Buyer.  After the sale was completed, the Buyer filed a lawsuit against the Seller, claiming breach of contract, misrepresentation, negligence and negligent misrepresentation by the Seller.

Both of the parties were represented by attorneys.  The attorneys agreed, with court approval, that the claims would be submitted to “binding arbitration.”

Binding arbitration is a substitute for trial.  In binding arbitration, an arbitrator makes a decision or renders an award in favor of one of the parties.  This arbitrator isn’t usually a judge.  It can be an attorney, but it’s not necessary that an arbitrator be an attorney.  The arbitrator can be anybody the parties agree to.

The matter was decided by an arbitrator at “binding arbitration” and the arbitrator rendered an award of $55,475 in favor of the Buyer.  The Buyer asked the Court to make the award enforceable, but the Seller objected.  The Seller claimed that he had never agreed to binding arbitration.  The Seller apparently may have agreed to non-binding arbitration, but not to binding arbitration.

The Court had to make a decision whether or not the binding arbitration award was valid and enforceable.  In order for the award to be valid, it was necessary that the parties have agreed to submit the matter to binding arbitration.  The Seller claimed that he had never agreed to binding arbitration, and the Buyer wasn’t able to provide the court with definite proof that the Seller had agreed to binding arbitration.  The Court held that an attorney’s agreement to binding arbitration is insufficient to commit the client to binding arbitration.  Because the Seller’s attorney had agreed to binding arbitration, but because there was no proof that the Seller himself had agreed, the Court found the arbitration award unenforceable. Giving up a right to trial is a substantial right, and the Court wasn’t satisfied that the Seller had ever actually given up his right to a trial.  The case is reported as Toal v. Tardif (2009) 178 Cal. App. 4th 1208.

That’s a tough spot for the Buyer.  The Buyer had spent all of the time, money, and attorneys fees necessary to get through arbitration and receive an award, only to find out that the award was no good.  As far as the Buyer was concerned, this was a done deal. But due to an uncertainty, this Buyer lost his entire award.

Sometimes legal proceedings seem like a ponderous, complex, over-the-top process.  But it’s exactly these types of situations that cause lawyers to spend so much time confirming every arrangement, crossing every “t” and dotting every “i”.  It can be surprising, frustrating and disappointing to think that you’ve got a solid deal in place, only to later find out there’s an infirmity.

The foregoing article is provided for general information purposes and should not be used in connection with any specific legal matter.  Persons with legal issues or matters should consult competent legal counsel.

Robert B. Jacobs is an attorney, mediator and arbitrator with over 30 years of litigation experience.  He mediates business, real estate, construction, personal injury, wrongful death, employment, trust and probate cases.  He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell.  He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. Since 2018 he has been an update author for the CEB treatise Real Property Remedies and Damages. He is an adjunct law professor at Hastings College of the Law in San Francisco.  Reach him at [email protected]

Advertising Makes a Difference

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Several years ago I saw an advertisement on a bench at a bus stop.  It said “Without Advertising, a Terrible Thing Happens . . . Nothing.”  The bench itself was an advertisement for advertising space.

So – advertising happens all over the place, everywhere, all of the time.  Some of it happens on billboards.  Sometimes farmers park trucks in their fields with a whole assortment of advertisements.  In the old days, Burma-Shave developed a creative advertising scheme with a series of billboards posted along highways.  (“Burma‑Shave was an American brand of brushless shaving cream, famous for its advertising gimmick of posting humorous rhyming poems on small, sequential, highway‑billboard signs” – from Wikipedia).  These days a lot of advertising is done electronically over the internet, over radio, and on television.  But there’s also a lot that happens through printed media or advertisements.

Sometimes readers expect advertising.  For example, when we pick up a newspaper, we expect to see advertisements.  When we access some websites, we may also expect to see advertisements

But other times, consumers don’t expect – or at least, they don’t want – advertisements.  I’ve heard more than one person complain about receiving calls from telemarketers – or “cold” calls – at home.  Seems like these calls typically come just when you’re sitting down to dinner. The marketing can be very effective, since it penetrates all the way through someone’s house straight to their kitchen.  But when a homeowner or renter is just putting the finishing touches on dinner, or hustling to get out the door for a concert, or hearing about their son or daughter’s day at school, then they may expect that the call they receive is from a friend or relative – and not a telemarketer.  As a result, there can be an expectation that isn’t met – or a disappointment or an unpleasant surprise – that can generate some feelings of frustration by the person receiving the call.

I don’t usually have a problem with telemarketers.  After all, they are people too.  Since they’ve violated my expectation by calling to sell me something when I’m expecting instead to hear from a friend or relative, I figure turn-about is fair play, and I violate a bit of their expectation.  Instead of getting angry, or short-tempered, or yelling at them, I ask them where they are from, or ask them some completely unrelated questions, or get them to laugh.  It generally takes them off guard.  They don’t know what to do.  It’s thirty seconds of indoor sport.  And then I thank them for calling and politely excuse myself.

I’ve occasionally gone to ball games and found a flyer, or handbill, on my windshield when I’ve come out to my car after the game.  And I’ve also found fliers on my windshield when I’ve parked at a retail business or mall.  But I don’t think I’ve ever received a handbill or flyer at my hotel room when I’ve stayed in a hotel.

And if you think about it, a big hotel has many rooms close together – so it could be ripe territory for distributing handbills by slipping them under the doors of the rooms.  But in California, such activity can be illegal pursuant to statute.  Section 17210 of the California Business and Professions Code defines a “handbill” as “any tangible commercial solicitation to guests of the hotel urging that they patronize any commercial enterprise.” And the section defines “hotel” to mean any “hotel, motel, bed and breakfast inn, or other similar transient lodging establishment” (but it excludes certain “residential” hotels.”)

The code section states that a person who “deposits, places, throws, scatters, casts, or otherwise distributes any handbill to any individual guest room (including placement underneath any guest room door, or placement on a doorknob) is liable for “unfair competition” if the innkeeper has objected to such handbill distribution (either orally or by posting signs at certain locations).

However –  handbill distribution to a guest room is not prohibited if the guest has requested or approved the distribution of the handbill to that guest.

So – next time you’re staying in a California motel, just know that you can approve handbill distribution at your room in advance, and that you can thereafter properly receive handbills.   Figuring out how to do this is another story.

The motel handbill distribution law has other provisions not discussed here.  Persons considering distributing handbills at hotels, or innkeepers with handbill questions, should consult competent legal counsel.

Can Dust Be a Trespasser?

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It seems like most people have some general idea of what trespass means.  We’ve all seen signs posted that say things like “NO TRESPASSING.”  Of course, these signs never seem to define what a trespass is, nor do they say exactly what the landowner intends by this message.  But most people seem to have a general sense that ‘trespassing’ somehow involves walking, driving, or going onto somebody else’s property without an invitation or a legal right to do so.

Trespassing is actually a much broader concept than simply not walking onto property without a legal right to do so.  “Trespass” is generally defined as the “unlawful interference with the possession of real property.”  Landowners have a legal right to exclusive possession of their property.  Interference with this right is often referred to as “trespass.”

In order for a trespass to occur, there must usually be some time of “physical” or “tangible” entry onto property.  For example, one California case considered whether or not there could be a trespass by electric and magnetic fields arising from power transmission lines.  San Diego Gas & Electric Co v. Superior Court (1996) 13 Cal. 4th 893.  In that case, a homeowner filed suit against a utility because the homeowner was concerned about potential health effects of electro-magnetic field resulting from power lines. The Supreme Court held that because there was no physical “entry” or invasion into land, that therefore there was no trespass from the electro-magnetic fields generated by the power transmission lines.  The Supreme Court noted that light, sound, noise, and odors likewise can’t usually cause a trespass, because when those things are present there is no physical interference with property.  (However, there may be other legal remedies for such invasions of the use and enjoyment of property – but even in such situations, there will generally be no claim for a trespass).  The Court noted that trespass can exist where such noise, vibration, or odors have resulted in the depositing of dust or other particles on real property.  A trespass can also exist where there has actually been damage to the property.

In one case, a defendant operated a “cotton ginning mill” which caused the lawns, flowers, shrubs, window screens, hedges and furniture on the neighboring property to be coated with a thick coating of dust, lint and “ginning waste” for six months during each year.  The neighbor finally got fed up, and filed a lawsuit for trespass.  The Court ruled (no surprise here) that the defendant had in fact trespassed by depositing all of this dust and debris on the neighbor’s property.  Many landowners might not realize that such deposits constitute an unlawful trespass.  This is perhaps an extreme example, because a trespass can exist with a far smaller volume of deposited material than is described in this case.  This case is reported as Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal. 2d 265.  As far as the law is concerned, trespass may or may not involve people setting their foot on a neighboring property.  If there’s even so much as a depositing of fine dust or particles, then a trespass may occur.

Correct legal analysis of whether or not a trespass occurs requires careful evaluation of applicable legal principles and is best performed by trained professionals.  Legal results can vary widely from the examples given in this article.  Persons concerned about trespass or potential trespass issues may not have sufficient expertise to correctly identify whether or not a trespass exists, and such person always do well to consult qualified, experience legal counsel in connection with any such questions.

Trespass Damage Can Be Significant

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                Most people probably don’t spend much time thinking about trespass.  But when most people think about trespass, they tend to think of driving, walking, or going onto somebody else’s property without an invitation.

But trespass can be much more than simply cutting across somebody’s lot.

A trespass can occur anytime there is an unauthorized entry onto the property of another.  Such an entry can consist of throwing, dropping, or depositing something onto land that belongs to someone else, even if the person who throws, drops, or deposits the item never sets foot onto the other person’s land.  A trespass can also occur when small items such as cement dust or even invisible particles of flouride compound are deposited onto land belonging to someone else.

A trespass can even occur when a fire damages a neighboring property.  In one case, a landowner intentionally set fire to piles of grass and sagebrush on its property so that the landowner could reduce the risk of fire to other building on its property.  This landowner apparently recognized that unburned grass and brush presented a fire hazard.  By intentionally burning this material in a controlled manner, this landowner apparently hoped to avoid any uncontrolled fire that could spread to the landowner’s buildings.

Unfortunately, this landowner failed to take the necessary precautions for containing the fire, and the fire escaped to a neighbor’s property and damaged it.  The neighbor sued for the cost of repairing the fire damage to its property.  This case is reported as Elton v. Annheuser-Busch Beverage Group, Inc. (1996) 50 Cal. App. 4th 1301.

The Court held that the fire constituted a trespass, and that the landowner who set the fire and allowed it to escape was responsible for the damage it caused to the neighbor’s property.  Moreover, because the damaged property was used for the raising of livestock, the landowner who set the first was also liable for the attorneys fees of the owner whose property was damaged.

A dramatic example of trespass liability occurred in Southern California in 2002.  A contractor was constructing a municipal water tank. Sparks ignited a large brush fire known as the Copper Canyon fire.  The fire spread over 20,000 acres, and caused considerable damage to a ranch located 15 miles away.  The fire damaged hillside vegetation and a large number of trees on the ranch. The fire negatively affected the flow of water across the ranch.  As a result, heavy rains resulted in mudslides that created a large gully and destroyed a house.  The mudslide was caused by the vegetation changes which resulted from the fire.

The owner of the Ranch filed suit against the contractor for trespass.  A jury found that the cost of restoring the Ranch to its condition before the fire would cost millions of dollars, and the Court eventually entered a judgment in favor of the ranch owner and against the contractor for over four million dollars. The case is reported as Kelly v. CB&I Constructors, Inc. (2009) DJDAR 16339.

That’s a lot of trespass.  Since a fire can constitute a trespass, this single fire resulted in a trespass to over 20,000 acres of land, along with liability for all of the resultant damage.  That’s a really, really bad day for the contractor.

Illegal Games a Problem

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The United States Constitution grants individuals the right to freely speak their mind, and also the right to freely and peaceably assemble.  But the time, place, and manner in which these rights can be exercised may be governed by local, state and federal governments.

In the 1940’s in Alabama a woman began distributing religious literature on the sidewalk of a company town.  The company owned all of the real estate in the town, including the houses, the shops, the streets and the sidewalks.  The woman was told to leave; she didn’t.  She was arrested for remaining on private property after being told to leave, which was a crime in Alabama.  The Alabama state courts upheld the conviction, but the United States Supreme Court reversed her conviction by holding that when owners of private property allow their property to be used by the public, then in some cases those private property owners may become subject to state regulation.  In other words, I may not have to allow strangers into my home or yard so that they can freely speak their political ideas. But if I open up my private property to use by the public – such as a private street, a privately owned sidewalk, a private toll road, or a privately owned bridge, then I may become subject to state regulation.  If I open up my property to use by the general public, then in some instances I may not be able to properly bar someone from speaking their religious or political ideas, claims, arguments or preferences.

The concept is that fundamental rights can sometimes clash with one another, and there must sometimes be a balancing of these rights.

A clash of fundamental rights is seen in the case of an interesting ordinance that made it unlawful to play games.  The village of Tinley Park, Illinois, adopted an ordinance that made it unlawful “to play any games upon any street, alley, or sidewalk, or other public places except when a block party permit has been issued by the President of the Village and the Board of Trustees.”

Ouch.  No games – at least not on the sidewalks, streets or alleys.  Almost sounds like some of the problems faced by the children in the 1968 British film of “Chitty Chitty Bang Bang.”  If one or more children were caught playing games on the sidewalk, street, or other public places, then their parents were to receive a ticket for “parental irresponsibility” for allowing their children to play such games.

The village of Tinley Park undoubtedly had good reasons for banning the playing of such games, such as increasing child safety, creating fewer hazards and obstructions for motorists and reducing the risk of injury to persons using sidewalks. But notwithstanding the ordinance, some children played games in streets or sidewalks, and their parents were ticketed.  The parents filed suit in state court for violation of the constitutional First Amendment right to assemble, and also for violation of due process of law as provided by the Fourteenth Amendment. However, the state court provided the parents no relief.  The case was transferred to Federal Court.

In the Federal Court action, the judge noted that the ordinance prohibited the playing of games not only in “streets and sidewalks” but also prohibited any games from being played in “any public place.”  The Tinley Park ordinances defined “public place” to include not only streets and sidewalks, but also any “park, cemetery, school yard, or body of water.”  The judge noted that a strict enforcement of the ordinance would “prohibit children from playing tag at recess in the schoolyard without a block party permit from the Village President and the Board of Trustees; likewise it would apparently bar a child from playing with his Gameboy on the sidewalk, or kids from playing in a pool or river –bodies of water – or skating in the park without obtaining a permit.” The court noted “Under the law I cannot play chess on the sidewalk without obtaining a permit, but how might that injure anyone? If bicycle riding is a game, may I not play it in the streets or on the sidewalks of Tinley Park without a permit?”

The Federal Court indicated that the Village of Tinley Park had power to limit some of the actions included in the ordinance, but that the ordinance was too broad and too vague.  The Court granted the parents a preliminary injunction which restrained the Village of Tinley Park from enforcing the ordinance during the pendency of the lawsuit.  (The published court opinion doesn’t give the final outcome, but if the published opinion is any indicator at all, it appears that the ordinance may well not have survived the federal court proceedings.) The case is cited as Weigand v. Village of Tinley Park (2000) 114 F. Supp. 2d 734.

Lost Property to be Returned to Owner

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“Finders keepers, losers weepers.”

That’s the law of  boyhood – and this law is sometimes recited when one friend has lost something, and his or her friend has found it.

But California law actually addresses what happens when lost property is found.

If lost property is found on land that belongs to someone else, then the finder generally has a better claim to it than the landowner.  That is, of course, unless the “found” property actually belongs to the landowner.  If a person is legally on land that belongs to someone else, then if such person “finds” lost property belonging to someone other than the landowner, then the landowner usually has no right to require the finder to give the item to the landowner, even though the lost item was found on the landowner’s property.

But the situation is different if the property was “mislaid” instead of lost.  If the item that is found was merely “mislaid,” then the finder is required to turn it over to the landowner.  Why?  Because the landowner is in a better position to ultimately return it to the true owner.

If either the finder or the landowner knows who the true owner is, then either lost or mislaid property is required to be returned to the true owner.

Believe it or not, the California Legislature has passed a series of laws that deal with lost property.  If a person finds property, and if there’s a reasonable way to find the true owner, then such person is required by California Penal Code section 485 to take reasonable steps to find the true owner. Failure to take reasonable steps to find the true owner is theft. But if the true owner can’t reasonably be found and the item is worth less than $100, then so long as the true owner isn’t known, the finder can keep the found property.  If the found item is worth more than $100, then Civil Code section 2080.1 requires the finder to turn it over to the police. If the true owner doesn’t claim it within 90 days, then the finder can keep it if it’s worth less than $250.  If it’s worth over $250, then the police are required to publish at least one notice.  But if the true owner still doesn’t claim the found property within 90 days, then the finder keeps it. (There are special rules for employees of public agencies.  When lost property is found by public agency employees, it must be sold at public auction).

Disappearing Act

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            As a boy, I subscribed to Boys’ Life – a magazine that was associated with the Boy Scouts of America.  In the 1970s, I was a registered Boy Scout, and I received a copy of the magazine every month.

I was only 12 when I started receiving my subscription.  A lot of the material seemed like it was intended for older boys.  But there were still interesting articles and advertisements.

It’s not easy to remember the details of those magazines from long ago.  But with the internet, everything seems possible.  The web page for Boys’ Life contains a “wayback machine” where (at no charge) all of the Boys’ Life magazines back to 1911 can be reviewed.  The URL is

I recently took the opportunity to use the Boys’ Life “Wayback Machine” to review some of the magazines from the 1970’s when I was a registered Boy Scout.  The hair styles were distinctively “seventies.”  The advertisements were familiar and were totally geared to topics that were likely to interest young boys: B-B guns, pocket knives, gas powered model airplanes, go-carts, mini-bikes and so on.

I can remember one of the advertisements I saw in the 1970s was for “disappearing ink.”  I can’t remember whether this ad was in Boys’ Life or a similar magazine, but at the time it seemed like a remarkable concept: Ink that disappeared.  All sorts of possibilities and pranks sprang to mind.  A contract with your sister for doing her chores that mysteriously disappeared.  A secret message to a friend that was readable and thereafter disappeared.  Nifty.

I never took the advertisers up on their offer to sell me a bottle of this magical stuff.   But I recently had a reason to remember the “disappearing ink” that I saw advertised in the 1970s.

I received a check the other day that had an unusual “watermark.”  A “watermark” is a stamp, design, or impression placed upon paper to discourage counterfeiting.  Watermarks are placed on important papers such as currency, stamps, and title documents.  The idea is that even if somebody could print a counterfeit image, it may be even more difficult for them to duplicate the process that created the paper that the document is printed on.  Thus, access to paper with appropriate watermarks can discourage counterfeiting. Watermarks can therefore serve as an additional security feature for providing reassurance that a document is genuine.

It’s possible to see all kinds of watermarks on different documents.  Some watermarks are visible at all times.  For example, my driver’s license has logos that aren’t printed but are instead contained within the actual material that the license is made of.  Some watermarks are only visible when they are held up to the light.  To see this, pull out a five dollar bill and hold it up to the light.  As you try to look “through” the bill to the light source, you’ll see all kinds of  “5″ numbers, both large and small, that aren’t printed with ink and that aren’t normally visible unless the bill is held up to a light source.