May It Please The Court
Quote of the Day - The early bird gets a parking spot and the next guy gets a ticket ... that's how it works for us unfortunately.
Private Parking Lot Owners Cannot Issue Citations With Fines
Our somewhat new attorney general, Kamala Harris, has give us this Christmas present: a private parking lot owner can't issue a ticket with a monetary fine. Even if the private parking lot owner towed your car (something they are allowed to do if the appropriate signs are posted), that owner cannot require you to pay a fine in order to get your car out of hock with the towing company. If you would like to read the opinion, it should be uploaded here on the Attorney General's website (at the time of this article, Opinion 07-804, filed December 22, 2011, hadn't been uploaded).
Apparently, issuing tickets on private property has become the latest revenue-generating idea. If police can issue tickets to raise revenue for towns and cities, then .... whoops! DId I just use my outside voice? That, along with my other favorite: "Why aren't the cops out catching real criminals?" That one always seems to me to miss the point of the ticket.
But back to our regularly scheduled program: the parking lot ticket. If you think about it, the ruling makes a lot of sense. The California Legislature has already authorized private parking lot owners to tow cars, so if they have that drastic remedy, there is no reason to also "pile on" with more fines.
And for a bonus round, the Attorney General has also given us this gem: a parking lot owner can't "boot" a car in the parking lot becuase it constitutes vehicle tampering. Like the opinion before this one, it is only available on a private search engine, but the citation is: 87 Ops.Cal.Atty.Gen. 114.
The PeaceTones Legal Empowerment Project & the Power of Music
Lawyer2Lawyer Internet Radio Podcast
Music makes the world go ‘round and on this holiday edition of Lawyer2Lawyer, please join me and my fellow co-host and attorney Bob Ambrogi as we celebrate with a music themed show! First up, Bob and I welcome Attorney Jeffrey M. Aresty, founder and current President of Internetbar.org and Attorney Ruha Devanesan, the Executive Director & Vice President of IBO, to talk about the mission of the Internet Bar's PeaceTones Legal Empowerment project. Later in the program, we share a holiday treat from a great songwriter and longtime friend of our extended family, Attorney Larry Savell!
News Of Chinese Supreme Court Justice's Cancer Met With Applause
Don't get me wrong here; I wish no ill on anyone (whether from China or North Korea), but I can't help but observe what a mixed message that headline generates. Here's the story: lawyers resent the Communist government so much that they greeted the news cited above with cheers and applause. Wow! Can you imagine similar applause for one of our leaders?
But let's examine the root cause of that level of frustration, from our own perspective. While some might quickly point out the new Made in America campaign, I'm not going to be so quick.Let's think about this for a moment.
Here are the facts as I see them.
(Let me know if I got anything wrong here.)
Now put those factors together with whatever other ones you want to throw in on this conversation (comment below) and explain the question of the day to me: Why is just about everything in our homes Made in China?
Now before you get to answering the question of the day, see if you can figure this one out: a factory in China produces "Free Tibet" flags. That oxymoron should convince you of one thing: the value of the Almighty Yuan, and maybe, just maybe, the answer to today's question.Oh yes, it's the Almighty Dollar.
Maybe we're missing the part that money and goods are simply an exchange between two people. What happened to the folks next door?
Oh that's right. They moved.
How To Fight City Hall And Win At Building Homes
Back in 1980, you have a little extra cash in your pocket, so you buy a nice parcel of land in San Clemente, some 2.85 acres. You know, the same town where Nixon bought his La Casa Pacifica, more popularly known as the "Western White House," just for the sake of reference for those who remember that far back. Anyway, back to the parcel of land.
Well, "you" are actually a group of investors who wanted to make some money on their purchase, so they sought to build homes on the parcel. The City originally zoned the parcel to allow up to six homes per acre, but the owners only wanted four home and submitted plans to the City, which were approved. The parcel was practically surrounded by other landowners' homes, who really wanted the parcel kept as open space. The City attorney at the time told the City council that it would be a taking if it rezoned the parcel as open space, so the City didn't take that step, and as time slipped by, so did the adjacent landowners' voices. Despite the approval, however, the owners never got around to building on the parcel.
A few years later, the City amended its general plan and added a zoning category that limited developers to one home per 20 acres, and applied that zoning category (designated RVL) to the parcel. The City was trying to protect development in sensitive canyons. The parcel sits on a slope, not a canyon.
Fast forward some 30 years.
The owners decide that it's time to start building, but their earlier approvals have now expired and they reapply to the City for approval to build one home on their 2.85 acres, which is 17.15 acres shy of the requirement to build one home under the 1983 zoning. The City denied the application, and the owners filed an eminent domain suit, claiming the City used spot zoning to "take" their parcel under the 5th Amendment.
That the part of the Bill of Rights that doesn't allow the government to take private property without just compensation. It's not the part of the 5th Amendment that you know from watching television - you know, the part where they say, "I'm taking the 5th."
Wow. An amendment to the Constitution that does two things at once.
Since we're dealing with the part about "just compensation," you're probably wondering by now what happened in the lawsuit. The case is known as Avenida San Juan Partnership v. City of San Clemente. In the case, the appellate court decided that the City had taken the owners' parcel of property by denying development on the parcel.
The trial court awarded the owners $1.3M for their troubles, and after both parties complained about the size of the award (City, too much; owners not enough), the appellate court sent the case back to the trial judge to consider both parties' arguments and recalculate the amount the City has to pay the owners.
Now don't think the City has only one option here. The trial court told the City that if it didn't want to pay the inverse condemnation damages that it could instead just approve the owners' application for development and avoid paying the $1.3. That way, the owners can build out their property and sell it to recoup (hopefully) the $1.3M that they would have otherwise gotten from the City.
So, presumably everyone wins. The nearby neighbors would likely have wanted the parcel to remain open space, but as real estate moves forward in time, that expectation just isn't realistic. Houses are going to get built.
Your Friends On FaceBook Ads - Will You Buy Because Your Friends Say So?
Interim Ruling: Case Can Proceed
If you're a Facebook user, you may have seen advertisements on your page featuring your friends advertising stuff they "like." Under copyright law, your name and likeness can't be used without your permission, but be sure that somewhere in the EULA (End User License Agreement) that you signed when you joined Facebook (or when they updated the EULA) - I don't know, I don't read them either - you agreed to let Facebook use your name and likeness.
Typically, a company can't advertise using your name or likeness unless you agree to allow it. There is an element of the relevant law that requires celebrity status to invoke this protection, but there have been cases where regular people like you and me (who are not celebrities) to block the unauthorized use of our photos and names.
But, given the army of lawyers that Facebook undoubtedly hired to make sure they didn't violate the law, the lawsuit trying to prevent the ads from hitting your Facebook page has an uphill battle. So, Facebook attacked a lawsuit filed against it designed to stop such practices. Facebook filed a motion to dismiss the case, claiming that the plaintiffs could not show any damages from the company's practice. In a recent ruling, the Court disagreed, saying, ""plaintiffs have articulated a coherent theory of how they were economically injured by the misappropriation of their names, photographs and likeness."
According to BusinessWeek, 90% of Facebook's expected $6.9 billion in revenue (yes, that's a "B") is derived from ads, so it's likely that Facebook will continue its attack against this case of Fraley v. Facebook, filed in San Jose.
Stay tuned for more.
Four Young Men Building Ice Rink Nabbed By Cops
That's what my fiance' would say. And she would say it with that laughable sound of disgust that we, as men, know all too well.
So, you have to read the headline with that sound in mind. Go ahead: go back up there and read it again.
Now listen: "Boys." Got it now? Alright. With that, we can get started.
Think about it. In Chicago this time of year, it's below freezing. If you missed that class in high school physics, water freezes below 32 degrees. Enough to form ice. Plus, those young men (ok, "Boys") were also big hockey fans. You know, the kind that skate on ice and slap a black puck into a net on the other side of the ice rink. So, it didn't take much to put 2 and 2 together and get an ice rink.
Four college age guys (ok, "Boys") got one of their Dads to underwrite their efforts to build an ice skating rink out in the backyard. Just like the one in Rockafeller Center, but, well, without the tree, the music, the decorations and all those skaters. Well, perhaps not at all like Rockafeller Center, except for the ice rink part. So, you and your bros (ok, "Boys") go to the local lumber store and build yourselves an ice rink. A regulation-sized ice rink, complete with a penalty box (make your own joke here, this one's just too easy).
The only problem with the gents' (ok, "Boys") plan revolves around the garden hose. Trying to fill up a 91'x43' rink with a garden hose is like trying to drink a pond dry with a straw. It just takes too long for four impatient players (ok, "Boys") to get on the ice.
Like most enterprising builders, they looked around for a solution. They spotted a fire hydrant at a next-door school, and borrowed a fire hose from a buddy (not a "Boy") who worked at a local fire department.
Viola', problem solved. The ice rink filled up quickly, but not quickly enough that a school janitor spotted the fire hose attached to the fire hydrant, and heard the water running in the hose. Like a good citizen janitor, he called the cops.
Using their honed detection skills, the cops followed the fire hose to the ice rink and nabbed the Boys (yes, at this point, they're now full-fledged Boys). Read the story for the details, but suffice it to say that the four Boys have agreed to split the court court costs and the expected $130.00 fine for the cost of the school's water.
Next year, I'll bet that these young men (not Boys any more) will wait out the time it takes to fill the ice rink using the garden hose. Just a guess.
The Law Banning Christmas
We've banned books, music, television, so why not ban Christmas? Especially Christmas decorations, music and sales before Thanksgiving. But that's a whole 'nother story. I'm talking about banning Christmas altogether.
You think I'm being anti-religious? Not at all.
You see, religious leaders have already banned Christmas. That's right. Christmas was banned in New England. Well, to be truthful, the ban has been lifted, but I think you'll be surprised to learn that it was the Puritans who banned Christmas. You know, those folks who fled England's religious persecution and established the Massachusetts Bay Colony back in the 1600's? Yep. The very folks who gave us Thanksgiving, which makes no sense at all. Why celebrate one holiday, only to ban the next one?
Think of all those presents that weren't given by the people in those funny outfits.
They're the ones who banned Christmas. They even passed a law banning Christmas for the length of a lifetime for some - 22 years in all. Well, like any good lawyer, I've researched the law on this point. In fact, I can even give you the language from the Court order banning Christmas (put on your 1600's thinking cap before you start to read):
General Court Orders, Massachusetts Bay Colony, May 11, 1659.
You see? It's official. Christmas was banned, even to the point of handing out fines for celebrating Christmas. And I don't think they looked at the ban on Christmas as a revenue generator like we look at traffic tickets.
Nope, these folks were serious. Even the ministers were against it:
- Reverend Increase Mather, 1687. Wow. "mad mirth." "Revellings." An "excess of wine." Sounds like my house on Christmas Eve. Seriously, though, I think they were trying to make a point that many people today keep trying to make.
Maybe the Puritans had something there.
What Can You Do When Your Business Is Targeted By A Complaint Website?
Don't Use This Tactic
This post is the first serious post in almost two years - and I apologize to my regular readers for having taken such a long vacation. Obama doesn't have anything on me. Seriously, though, the switchover from closing down WLF | The Williams Lindberg Law Firm, PC and moving our practice to Sedgwick took more time out of my day than I anticipated. So let me give you a quick update on where things are. All of WLF's lawyers have moved on in one form or another, and I am very sad to report that Greg Granger died back in 2009. Craig Lindberg now works at FedEx, so the firm has gone back to its original namesake, WLF | The Williams Law Firm, PC. Joe McFaul and I continue to work together, and Wayne Kistner and Charles Bennett have resumed their private practices. Our staff members have likewise moved on, but Gayle Delcoure continues to work with Joe and me.
I've also been a slacker with posting my Lawyer2Lawyer podcasts, but those postings will return to weekly posts. Bob Ambrogi and I have continued to co-host that podcast, and we've been doing so for the last six years. We believe we've got the longest continuously-running podcast on the entire Internet. We started back in 2005, so let me know if you think we're wrong. In any event, if you haven't listened in awhile, it may be a good time to renew your link to the Legal Talk Network site or just download our podcast from iTunes. We just got named #1 of the "Top Ten Podcasts," and we're very proud of that award.
With that, let's get down to the business of May It Please The Court's blog posts.
As anyone who knows me would tell you, I'm a geek. A Geek of the pocket-protector, card-carrying type, complete with a capital "G." So when I saw this opinion regarding a website called pissedconsumer.com about several of my favorite subjects (trademark and the Internet), I dove in.
Here's the long and short of it: a website called pissedconsumer.com offers upset customers the opportunity to post their rants about everything from their opinions about bad customer service to bad products. Obviously, businesses are not a fan of this website, or others like it. Two businesses in particular (who were quite upset about unfavorable opinions posted by their customers) contacted pissedconsumer.com to find out what they could do to respond to those rants and satisfy their customers.
Now it gets tricky.
The owners of pissedconsumer offered these businesses ... well, let them explain it in the words the Court used:
Those terms [of the offer pissedconsumer.com made to the businesses] allegedly said: "In exchange for $2,500 per month over three years, plus an upfront fee of $30,000-a total of $120,000 - [the businesses] would receive the following services:
The businesses claimed that "offer" was really extortion, and sued. The businesses also claimed that pissedconsumer.com infringed their trademarks, and sued over those violations too, and not surprisingly asked for punitive damages, too.
Unfortunately for the businesses, the Court denied them any relief. The test for trademark infringement involves an element of consumer confusion, and the Court decided that no consumer visiting pissedconsumer.com would be confused that they were actually visiting the businesses' websites, especially given all of the negative comments there. The businesses lamely argued that consumers might think that the pissedconsumer.com website might be confused with their own Customer Relations Department, but not surprisingly, the Court didn't buy that argument, either.
The Court also decided that pissedconsumer.com wasn't defaming (actually libeling) the businesses because the rants were obviously expressions of opinion, and not expressions of factual matters. Since an opinion is not defamatory, there was no glory in that argument, either.
Now you might think that the extortion argument was a good one, but that one lost two. The Racketeer Influenced and Corrupt Organizations Act (RICO) prevents pissedconsumer.com from accepting "any benefit to influence ... selection, appraisal or criticism." As a consequence of this legal requirement, the businesses lost because "PissedConsumer does not hold itself out 'making ... criticism of commodities or services'; instead, it provides a forum for others to make such criticisms." In other words, pissedconsumer.com found all the right loopholes.
Finally, even though the Court admitted it was very troubled by what it considered to be unethical actions of pissedconsumer.com, it ruled that the website's actions are outside the law. The Court quoted Oliver Wendell Holmes' 1922 observation: "[Ethical] obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp."
Sometimes you just can't get what you want through the law. But there's always an alternative.
P.S. (December 17, 2011). Doctors run into the same problem: is it fact....or opinion?