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Matthew D. Muller, the disbarred attorney whose chilling kidnapping of Denise Huskins in 2015 is explored in the Netflix docuseries American Nightmare, is currently serving a 40-year prison sentence for his crimes. This gripping true crime story details the horrifying events that unfolded in Vallejo, California, as Muller orchestrated a night of terror for Huskins and her boyfriend, Aaron Quinn.
Matthew D. Muller, born on April 27, 1977, in California, had a childhood marked by an eagerness to learn and a drive to succeed. Raised in a supportive suburban environment, he was the product of a family that valued education and hard work. Growing up, he enjoyed a typical childhood, engaging in various sports and activities that helped shape his character and build friendships.
Muller demonstrated academic promise from an early age, often excelling in his studies. His parents encouraged him to pursue his interests, which included reading and exploring the world of ideas. This strong foundation in education laid the groundwork for his future endeavors. He was involved in extracurricular activities during high school, where he not only honed his academic skills but also developed leadership qualities and a sense of responsibility. His participation in debate club and student government helped him gain confidence in public speaking and critical thinking, essential skills for his later career.
After graduating high school with commendable grades, Muller enlisted in the U.S. Marine Corps, serving from 1995 to 1999. This period of service significantly influenced his life, instilling discipline, resilience, and a profound sense of duty. However, the stresses associated with military life began to take a toll on his mental health. The transition from the structured military environment back to civilian life was challenging, and he began experiencing symptoms of anxiety and depression. These mental health issues were compounded by the high-pressure environment of the Marines, where emotional vulnerabilities were often stigmatized.
Despite these struggles, Muller pursued higher education, attending Harvard University, where he graduated with a law degree in 2006. His time at Harvard further developed his analytical skills and deepened his understanding of the law and its implications in society. While he achieved academic success, his mental health issues persisted. Reports indicate that he grappled with feelings of isolation and inadequacy, leading to increased anxiety and bouts of severe depression. He sought therapy to cope with these emotional challenges, which became a significant part of his adult life.
Following his graduation, Muller began his professional journey as an immigration lawyer based in San Francisco. His education and military background equipped him with a unique perspective on legal issues, particularly those affecting vulnerable populations. He worked diligently to advocate for his clients, aiming to make a positive impact in their lives.
Muller’s early years were characterized by ambition and a strong educational foundation, but they were also marked by the emerging challenges of mental illness. His journey reflects a complex interplay of promise and potential, underscoring the importance of background and upbringing in shaping one’s path in life. As he navigated the pressures of his career and personal life, the impact of his mental health became increasingly significant. His experience highlights the need for understanding and support in addressing mental health issues, especially among those who have faced high-stress environments like the military and the demanding nature of legal work.
On March 23, 2015, during the early hours of the morning, Muller broke into Huskins’ home in Mare Island, Vallejo. Armed with a stun gun and a fake firearm, he brutally restrained both victims, forcing them to the ground. Using dark swim goggles, he blindfolded them and administered a sedative while playing a recorded message that warned of dire consequences if they did not comply with his demands.
After subduing the couple, Muller abducted Huskins, placing her in the trunk of his car and driving her to his residence in South Lake Tahoe. Over the next two days, he held her captive, demanding a ransom of $17,000 while subjecting her to horrific sexual assaults. Despite his threats and torment, Huskins was ultimately released in Huntington Beach without any ransom being paid, a detail that would later confuse and frustrate law enforcement officials as they struggled to understand the motives behind the crime.
Related: The Denise Huskins Case: A Timeline of Events and a Fight for Justice
Initially, the Vallejo Police Department mishandled the investigation, implying that Quinn and Huskins had staged the abduction. Officers interrogated Quinn for hours, questioning his involvement in the incident and suggesting that he may have played a role in his girlfriend’s disappearance. The police stated, “There is no evidence to support the claims that this was a stranger abduction or an abduction at all.” This narrative led to public outrage as investigators faced scrutiny for their lack of proper investigation and victim support, particularly as details of Huskins' ordeal began to emerge.
The police's premature conclusions about the case not only put additional strain on Huskins and Quinn, who were already reeling from the traumatic experience, but also delayed the investigation into the real perpetrator. The pressure mounted on the Vallejo Police Department as the public called for accountability and a more thorough investigation into the actual events of that fateful night.
The case remained unresolved until June 8, 2015, when Dublin Police Services arrested Muller for a separate home invasion, during which he attempted to kidnap a couple's daughter. This marked a turning point in the investigation, as investigators discovered a cellphone at the scene that was connected to Muller, prompting further investigation into his involvement with Huskins' kidnapping.
Following this arrest, authorities conducted a search of Muller’s properties in South Lake Tahoe and uncovered evidence linking him directly to the crime against Huskins. This included recordings that matched the threats made during her abduction and other incriminating materials that would ultimately solidify his guilt. In September 2015, Muller pleaded guilty to one count of kidnapping, and in 2022, he entered a no contest plea to two counts of forcible rape, solidifying the horrific nature of his actions.
In 2017, U.S. District Judge Troy L. Nunley sentenced Muller to 40 years in prison for the kidnapping of Huskins. During the sentencing, Judge Nunley expressed the profound impact of Muller’s actions, stating, “This sentence underscores the severity of Muller’s actions. Despite having opportunities in life that many can only aspire to, he chose to use his significant intelligence to orchestrate a brutal assault and inflict psychological torment on two innocent individuals.”
Muller’s defense attorney, Thomas Johnson, sought a 30-year term, citing Muller’s diagnoses of manic depression and the potential for rehabilitation. However, the court determined that the severity of Muller’s actions warranted a longer sentence, reflecting a growing acknowledgment of the lasting effects of such crimes on victims and their families. The judge emphasized the need to ensure that Muller would never have the chance to commit similar offenses again, sending a strong message about accountability in the justice system.
As of now, Matthew Muller is incarcerated at the Federal Correctional Institution in Tucson, Arizona, with an expected release date of July 8, 2049. In a 2018 jailhouse interview with NBC Bay Area, Muller maintained his innocence, claiming he pleaded guilty out of sympathy for Huskins and Quinn. He criticized the Vallejo Police Department’s handling of the case, stating, “I don’t believe there’s any justification for how the Vallejo Police Department managed the situation,” which has raised further questions about his understanding of the gravity of his crimes.
Muller’s claims of innocence, despite his guilty pleas, highlight the complexities of criminal psychology and the ways in which perpetrators may attempt to deflect responsibility for their actions. His assertion of having acted out of sympathy further complicates the narrative, as it appears to minimize the severity of the trauma experienced by his victims.
Muller’s story serves as a chilling reminder of the complexities surrounding crime, victimization, and the often flawed perceptions of law enforcement. The American Nightmare docuseries sheds light on this disturbing case, making it a significant topic for true crime enthusiasts and a poignant discussion about the impact of crime on individuals and communities.
The case also prompts critical discussions about the treatment of victims, the psychological ramifications of violent crime, and the responsibilities of law enforcement in protecting the vulnerable. The way this case unfolded reflects broader societal issues, including the need for improved training for police officers when dealing with victims of violent crime and the importance of listening to their accounts without bias.
The case of Matthew Muller and the kidnapping of Denise Huskins highlights critical issues within the criminal justice system, including the treatment of victims and the responsibilities of law enforcement. As viewers continue to engage with the American Nightmare series, the conversation around crime, accountability, and justice remains relevant, ensuring that the lessons learned from this case are not forgotten. It serves as a powerful reminder of the need for empathy and understanding in the face of horrific events, both for the victims and for those tasked with serving justice.
What drew you to the field of personal injury law, and how has practicing in California influenced your approach to these cases?
My journey into personal injury law was rooted in a deep sense of service. I started watching courtroom drama television shows when I was in grammar school and wanted to be the lawyer fighting for the injured. I understood that standing up for the underdog—the individuals hurt by no fault of their own—was how I could make a difference. Now, practicing in California, a state with such diversity and complexity, has only sharpened my approach. I have experience practicing in Northern and Southern California and trying cases in State and Federal courtrooms. California's legal landscape is intricate and, as a personal injury lawyer in California, I keep my skills sharp, drawing on years of experience and current practice to ensure my clients receive the justice they deserve.
California is known for its complex legal system. What challenges do you commonly face when handling personal injury cases in this state?
California is a land of opportunity, diversity, and also of significant legal challenge. Navigating its complex legal systems is no walk in the park and can be treacherous for the unweary. When handling personal injury cases, especially trucking accidents, it is imperative to use best practices to preserve evidence and ensure the injured person is protected. Where a public entity or medical professional are involved, shorter timelines for presenting claims can apply. I believe knowing the rules and using the law for the protection and benefit of the client is the most important function of an attorney. My focus remains on providing clients with clear, unwavering counsel so they can move forward with confidence and we can fulfill their legal needs.
Can you share a case that exemplifies the unique aspects of personal injury law in California, and how you successfully navigated those challenges?
California is often a trendsetter, and personal injury law is no exception. I recall a case where my clients were hit by an 18 wheeler, resulting in serious injuries and a severe concussion. Their prior attorney did not work-up the case because the damage to the car did not look bad and they were stuck with a lowball offer. Having the car inspected by a licensed mechanic and body repair specialist, getting the crash data recorder from the big rig, and obtaining medical examinations by expert doctors provided the evidence to obtain policy limits from the insurance company instead of lowball offers. In the end, the clients made a great decision to switch to The Krolikowski Law Firm to prove their case and maximize their recovery.
How do California's specific laws, such as Proposition 213 or the comparative negligence rule, impact personal injury cases, and what should potential clients know about them?
When it comes to recovering damages after a car accident, Proposition 213 limits the uninsured to only recovering their economic damages and prevents recovery of damages for pain and suffering. Prop 213 applies even when the accident wasn’t their fault. It’s a tough pill to swallow for some, but it underscores the importance of carrying uninsured motorist coverage and liability insurance. The comparative negligence rule, on the other hand, can reduce your compensation if you’re found partially at fault. In both scenarios, clients face limits on the amount of money they can recover after an accident. Comparative fault and Prop 213 clients need lawyers, such as myself, that are experienced, understand the laws, and fight to obtain the fullest compensation under the law for the clients.
With the high number of car accidents and traffic incidents in California, what advice do you have for individuals involved in a collision to protect their legal rights?
As a car accident lawyer I've seen at fault parties change their stories to try to get out of being responsible for the collision. Call the police or CHP. Request a unit be sent and a report be taken. Evidence is critical. If you are one of millions of persons with a mobile device that takes photos and records videos, use it. Take pictures of the vehicles, drivers license, insurance, the locations. Take video of any witnesses and the other involved parties. Ask them what happened and let them speak. Go to the doctor and get checked out to make sure you are okay, even if you "feel fine." Contact a lawyer (preferably me) as soon as possible. The responsible insurance companies can be quick to settle, often for less than what you deserve, and before your injuries fully manifest. Work through legal counsel from the beginning to protect your rights from day one.
What role does technology play in your practice, especially when gathering evidence or presenting a case in California’s courts?
I have watched technology change since I began practicing law in 1999. At every step, I changed with the times because I never stop learning and adapting. The days of typewriters and papers files, moved into faxes and computers, and has evolved into electronic filing and AI. Staying ahead of the curve has allowed me to incorporate emerging technology into my practice. Whether it’s dashcam footage, surveillance videos, electronic medical records, my law firm uses state-of-the-art tools to acquire and analyze data and present clients’ cases clearly and convincingly in court.
California is known for its diversity. How do you ensure that your practice is inclusive and accessible to clients from different cultural and socio-economic backgrounds?
In a state as rich in diversity as California, inclusivity is essential. I believe I have a duty as a California lawyer to provide services to all persons equally access all cultural and socio-economic backgrounds. I have access to interpreter services and have been able to assist clients and provide accessibility by offering services in multiple languages, including but not limited to Spanish, Armenian, Chinese, Vietnamese and Korean. We provide culturally competent legal services, ensuring every client, no matter their background, feels heard and represented and has access to justice.
How do you manage the expectations of your clients regarding the timeline and potential outcomes of personal injury cases in California’s busy legal environment?
I provide my direct contact information to clients and make time to be available to discuss their case. Managing expectations is about honesty and clarity. Each client and case is unique, and personal injury cases can take anywhere from three months to three years, depending on the injuries, the evidence, the insurance, and the court. For example, an injured person needs to recover or reach a point in therapy where costs of medical care can be determined with reasonable certainty; A claim needs to be presented to the insurance company, who will perform their own diligence and assessment of claim value; If a settlement cannot be reached with the insurance company, the client would need to proceed with Court litigation. As personal injury cases may span several months or even years, for more precise information about case value and timeline I would need to speak directly with a client on a case-by-case basis.
What steps should someone take immediately after an accident in California to build a strong foundation for a personal injury claim?
After an accident, it’s essential to act swiftly but thoughtfully. Stay calm, but be proactive. First, call the authorities and get a police report. Then, document the scene—every angle, every detail. Get medical help immediately, even if you think your injuries are minor. Lastly, consult with an attorney like me, who will ensure that your rights are protected and help you navigate what can often be a complex claims process and civil legal process. Insurance companies have and use their lawyers, so all injured persons should do likewise. Call me, the personal injury claims lawyer, to battle the insurance company for your rights, damages and compensation.
Adam J. Krolikowski, Esq. The Krolikowski Law Firm 930 W 17th St, Ste D Santa Ana, CA 92706 Tel (949) 269-1869 Fax (949) 269-1868 www.usethelaw.com
California has initiated legal action against a rural Catholic hospital accused of denying an emergency abortion in February to a woman whose water broke prematurely, thereby exposing her to the risk of severe infection and hemorrhage.
The Providence St. Joseph Hospital in Eureka, California, is alleged to have breached several state laws by discriminating against pregnant patients and refusing to offer abortion services in cases of obstetric emergencies, as stated by California Attorney General Rob Bonta during a press conference on Monday.
The lawsuit, filed in Humboldt County Superior Court, seeks not only civil penalties but also a preliminary injunction against the hospital. According to the lawsuit, Anna Nusslock, a chiropractor and resident of Eureka, was 15 weeks pregnant with twins when her water broke prematurely. Nusslock recounted at the press conference that medical professionals at Providence St. Joseph Hospital informed her that her twins would not survive and that she required an abortion to prevent life-threatening complications. However, the hospital declined to perform the abortion, citing a policy that prohibits any medical intervention while a "detectable heartbeat" is present, as detailed in the lawsuit.
"California is the beacon of hope for so many Americans across this country trying to access abortion services since the Dobbs decision," Bonta said in a statement Monday. "It is damning that here in California, where abortion care is a constitutional right, we have a hospital implementing a policy that’s reminiscent of heartbeat laws in extremist red states."
"With today’s lawsuit, I want to make this clear for all Californians: abortion care is healthcare. You have the right to access timely and safe abortion services," Bonta added.
On Feb. 23, Nusslock was rushed to Providence St. Joseph Hospital's emergency department after her water broke, according to the lawsuit. At the time, Nusslock had been experiencing increasing pain and bleeding for about a week.
A doctor at the hospital told Nusslock that there was no possibility her twins would survive and that without abortion care, she was at risk of potentially life-threatening infection or hemorrhaging, the lawsuit states.
"Despite every doctor involved agreeing that (Nusslock) needed immediate intervention, Providence Hospital policy would not allow it," according to the lawsuit.
The Attorney General's Office said the hospital's policy prohibits doctors from "providing life-saving or stabilizing emergency treatment when doing so would terminate a pregnancy, even when the pregnancy is not viable."
The lawsuit additionally claimed that the hospital suggested Nusslock be transported by helicopter to the University of California, San Francisco Medical Center for an emergency abortion. However, Nusslock stated that this option was not viable for her due to the $40,000 expense. "I inquired whether we could drive to UCSF instead, and my doctor replied, 'If you attempt to drive, you will hemorrhage and die before reaching a facility that can assist you,'" she recounted.
Ultimately, the hospital discharged her and advised Nusslock to drive to a nearby community hospital located approximately 12 miles away, as stated in the lawsuit. Before her departure, Nusslock mentioned that a nurse provided her with a bucket and towels "in case something happens in the car."
Since the U.S. Supreme Court rescinded the federal right to abortion over two years ago, numerous Republican-led states have progressively implemented stricter regulations on abortion-related healthcare. This includes prohibitions on the procedure even in situations where the life of the pregnant individual may be endangered. Nusslock's situation represents the most recent development in a series of legal disputes concerning abortion care nationwide. In August, two women from Texas lodged federal complaints against hospitals that refused to perform abortions for ectopic pregnancies.
Additionally, in July, a woman from Kansas initiated a lawsuit against the University of Kansas Health System for denying her a medically necessary abortion in 2022. In June, the U.S. Supreme Court affirmed a lower court's decision that federal law takes precedence over Idaho's nearly complete abortion ban in cases of medical emergencies; however, legal challenges regarding this matter are anticipated to persist.
What is the California Bar Exam score boost program?
The state bar announced on Friday, that it has requested the California Supreme Court to increase real bar exam scores by up to 40 points for individuals who do well on experimental tests scheduled for November and July. The maximum points on the exam is 2,000 points. Beta testers who score low will not face penalties on the actual exam.
The applicants who complete a sample test written by Kaplan could receive financial incentives. State bar leaders have indicated that they need to test drive sample multiple-choice questions created by testing firm Kaplan. The bar has recently retained Kaplan to develop a 200-question examination to begin with the February 2025 session. The bar’s testing expert will analyze the exam and its outcomes.
As an incentive for field testing 49 sample multiple-choice questions in November, up to 4,300 participants could receive an as-yet-undetermined payment if the state bar secures grant funding. The bar would also offer to raise the scores of certain sample-test participants who then take the actual multiple-choice exam in February or July 2025.
As of now, the California Supreme Court has not specified a timeline for reviewing the bar's requests to replace the NCBE multiple-choice exam with Kaplan's test and for offering score increases to field-testers. The high court has still not responded to the bar’s proposal, submitted late last year, which seeks to establish an alternative pathway to licensure that would allow successful candidates to become lawyers through supervised work rather than by passing the standard bar exam.
Riding a bicycle is an excellent form of exercise, and you expect an enjoyable experience, but when you get into an accident, you become a statistic.
In the Golden State, the numbers are frightening. In 2021, 125 cyclists lost their lives on California roads. The state usually ranks first or second in total bike accident fatalities nationwide. Accidents can be caused by speeding and reckless drivers as well as road hazards. One study found that almost 50% of cycling accidents in the city of Fremont were sideswipe accidents. While all cyclists should follow the rules of the road, wear protective gear and ride defensively, they are still at risk of being injured. Every state has its own set of laws and regulations regarding bicycles and accidents. In California, it's important for cyclists to learn about these measures and to protect their rights as accident victims if they find themselves in this situation due to someone's negligence.
Injury lawyers advise you to do the following:
Your health and safety matter. Call for medical attention right away following a cycling accident. Then, call the local police department to file a report. If you are able, take photos of the accident scene, your injuries and images of your bike and the vehicle involved. Ask witnesses for their contact information. Be careful what you say at the scene of the accident. Do not admit fault or statements that could appear that way. Just tell the police the facts as you know them.
You have rights under the law following a bicycle accident:
There are several types of compensation you may be eligible for. These could include compensation for medical costs, such as hospitalization, surgeries, medications and rehabilitation. Compensation could also be received for income lost due to the inability to work during recovery. It could also mean compensation for the repair or replacement of the victim's damaged bicycle. Compensation could also be given for physical and emotional distress following the accident.
California's Comparative Negligence Law allows victims to still seek justice and compensation even if they share some responsibility for the accident. Compensation may be reduced by your percentage of fault. Determining comparative negligence in a California bicycle accident case involves careful examination of the evidence. This can include accident reports, physical evidence, eyewitness testimony, etc.
California has a statute of limitations for filing personal injury claims, so you don't want to put this off. Two years is the default. It's important to act sooner than later; a skilled personal injury lawyer can help you navigate the legal landscape. You don't want to lose your right to pursue compensation for your injuries and damages.
The landmark ruling, delivered unanimously by the California Supreme Court, found that driver Erik Adolph did not give up his right under state law to sue on behalf of a large group of workers, despite signing an agreement to bring his own work-related legal claims in private arbitration rather than litigation.
Adolph had sued Uber in 2019 over its allegedy misclassification of drivers as independent contractors rather than employees. In this case, he has claimed that drivers should be reimbu
The ruling affects more than half of non-union private sector workers in the US, who are required to sign agreements similar to Adolph's, and could open companies in the state up to more large-scale lawsuits. However, Uber lawyer Theane Evangelis argued in a statement on 17 July that the ruling conflicts with a decision made by the US Supreme Court in 2022 involving Viking River Cruises, which found that companies could force individual PAGA claims into arbitration.
"We are considering our appellate options," she said.
As the most populous state and home to more immigrants than any other U.S. state, California's immigration patterns significantly influence the nation's demographic, economic, and cultural landscapes. This blog post will examine the trends in California's immigration rates and explore their implications for the state.
California has a long history of attracting immigrants from around the world. The 1850s Gold Rush brought an influx of European and Chinese immigrants. Waves from Latin America and Asia followed in the 20th century, particularly after the Immigration and Nationality Act of 1965 abolished national-origin quotas. Today, the state is a melting pot of cultures, with nearly 27% of its population being foreign-born, according to the U.S. Census Bureau. In 2021, 135,181 immigrants were granted permanent residence status in the state of California.
Recent trends suggest that California's net immigration rate has been slowing down. The number of incoming immigrants remains high, but increasing numbers of both native-born residents and immigrants are leaving the state, often citing high living costs, housing issues, and a desire for a different lifestyle. Meanwhile, other states like Texas and Florida have seen their immigrant populations rise.
Moreover, the immigrant demographic in California is changing. While Latin American immigrants, particularly from Mexico, have historically dominated, the state is experiencing an increased influx of Asian immigrants, primarily from China, the Philippines, and India. This shift has transformed the demographic composition of the state, influencing its culture, economy, and politics.
These immigration trends have significant implications for California.
Immigrants contribute significantly to the state's economy. They make up a third of California's labor force and are overrepresented in sectors such as agriculture, construction, and healthcare. The shift in immigration trends could impact these sectors and potentially spur innovation and entrepreneurial activities in technology and other industries where Asian immigrants have shown a high propensity for entrepreneurship.
California has been a leader in pro-immigrant policies, including health care for undocumented immigrants and the issuing of driver's licenses regardless of immigration status. The changing immigration trends could influence state policies and national immigration debates.
The changing face of immigration contributes to the diversity of cultures, languages, and traditions in the state. It also impacts the state's education system, requiring adaptation to accommodate a more diverse student population.
With a slow growth rate and an aging population, California relies on immigration for population growth and to maintain a younger workforce. Shifts in immigration patterns could influence these dynamics, affecting everything from the economy to social security systems.
As the United States grapples with comprehensive immigration reform, the future of immigration in California remains uncertain. The state will continue to be a significant player in the national conversation on immigration policy, given its substantial immigrant population.
Regardless of the future direction, one thing remains clear: immigrants are integral to California, shaping its culture, powering its economy, and contributing to its vibrancy and dynamism. As such, understanding and responding to these immigration trends is critical to the future success and prosperity of the state.
California is a perfect example, where its Supreme Court frequently announces law unique to that state and applies its rulings retroactively. This compels organisations to constantly partner with legal counsel to anticipate upcoming decisions or risk significant class action and representative PAGA lawsuits for past and future conduct.
This month, we have the fortune to hear from Seyfarth Shaw partner Paul J. Leaf. In this featured article, he draws upon his wealth of experience in California employment law to explain the pitfalls of and defences to retroactively applying new California Supreme Court rulings, while also delving into ongoing developments in California employment law.
Practicing in one of the most employee-friendly states, there is never a dull moment when advising my business clients about California employment law. I work on a wide range of employment issues, often on the following repeat matters: (1) independent contractor misclassification claims; (2) protecting my clients from the retroactive application of new California employment law that invalidates how they previously operated; and (3) strategising about how to deal with PAGA claims, including by updating arbitration agreements.
In 1989, the California Supreme Court announced that SG Borello & Sons, Inc v Department of Industrial Relations, 48 Cal. 3d 342 (1989) controls whether workers are independent contractors or employees. Under this nine-factor test, no single factor automatically establishes employee status. Indeed, even if multiple factors indicate employee status, a worker can still be deemed an independent contractor.
Despite businesses relying on Borello for nearly 30 years to structure their workforces, in Dynamex v Superior Court, 4 Cal. 5th 903 (2018), the California Supreme Court adopted a three-factor test to replace Borello for certain claims. The ABC test significantly expands the scope of employment, because if the hiring entity fails to establish any factor, the worker is deemed an employee.
After Dynamex, the ABC test became effective immediately. Businesses thus had to scramble to assess whether their existing independent contractor relationships – even if lawful under Borello – could pass the ABC test.
If a hiring entity was unsure whether it could satisfy the ABC test, it had to pivot to an employee model, modify its own business practices, or risk a misclassification lawsuit. The cost of such a lawsuit can be staggering, because misclassifying a worker as an independent contractor gives rise to a litany of derivative claims that may be actionable through class action and PAGA lawsuits, including willful misclassification, unpaid minimum wages and overtime, improper meal and rest breaks, failure to reimburse business expenses, inaccurate wage statements and untimely payment of wages. Willful misclassification alone can give rise to $25,000 in penalties for each worker misclassified as an independent contractor.
Practicing in one of the most employee-friendly states, there is never a dull moment when advising my business clients about California employment law.
What’s more, in Vazquez v Jan-Pro Franchising Int’l, Inc, 10 Cal. 5th 944 (2021), the California Supreme Court ruled that the ABC test applies retroactively. Thus, even if hiring entities had properly utilised workers as independent contractors while Borello controlled, the backwards application of the ABC test created four years of potential class action liability and one year of potential PAGA liability during that Borello period.
Yes, because the California Supreme Court regularly applies its decisions retroactively, including when it announces new law. Based on statutes of limitations, such retroactive decisions generate four years of potential class action liability and one year of potential PAGA liability, often across multiple claims. This is because a single claim for unpaid wages gives rise to derivative claims, including penalties for inaccurate wage statements, penalties for untimely payment of wages and attorneys’ fees. Consider a few examples.
For approximately 70 years, businesses in California relied on a federal doctrine holding that up to 10 minutes of work time each day need not be compensated if the time was difficult to track. This de minimis doctrine was endorsed by the US Supreme Court and then applied to California claims by the Ninth Circuit and the California Division of Labor Standards Enforcement (DLSE) – the state agency charged with enforcing California’s wage and hour laws. Further, a California Court of Appeal applied the federal de minimis doctrine in an employee compensation case. No California court had deemed the federal de minimis doctrine inapplicable under California law.
But in Troester v Starbucks Corp, 5 Cal. 5th 829 (2018), the California Supreme Court rejected the federal de minimis doctrine. Troester is being applied retroactively.
In 1990, 2011 and 2013, the California Court of Appeal held that an eight-hour sleep period could be excluded by written agreement from hours worked in a 24-hour shift. The DLSE agreed that such sleep time need not be compensated. No California court had reached a contrary conclusion.
But in Mendiola v CPS Sec. Sols., Inc, 60 Cal. 4th 833 (2015), the California Supreme Court first announced that sleep time during an on-call shift can be compensable. Mendiola was made retroactive.
Since at least 2012, multiple federal courts concluded that premium pay – the hour of compensation owed to employees for an improper meal or rest break – is paid at an employee’s base hourly wage, not the potentially higher (and more difficult to calculate) regular rate of pay. In 2019, the first California Court of Appeal to consider this issue agreed.
But in Ferra v Loews Hollywood Hotel, LLC, 11 Cal. 5th 858 (2021), the California Supreme Court held that premium pay must be paid at the regular rate of pay. Ferra was made retroactive.
Starting in 2012, three California Courts of Appeal held that premium pay is not a wage that can trigger penalties for inaccurate wage statements or untimely payment of wages. At least seven federal courts applying California law agreed.
But in Naranjo v Spectrum Sec. Servs., Inc, 13 Cal. 5th 93 (2022), the California Supreme Court parted ways with these authorities. The California Supreme Court has not barred retroactive application of Naranjo.
The California Supreme Court regularly applies its decisions retroactively, including when it announces new law.
Among other strategies, I establish a defence that shields my clients from retroactive penalties, because those penalties – as opposed to any unpaid wages – are usually the greatest source of potential liability.
When the California Supreme Court applies new law retroactively, the resulting owed wages are often small, but the derivative penalties stemming from those unpaid wages can be crippling. For example, with one employee, a single unpaid penny in wages can trigger up to $4,000 in penalties for inaccurate wage statements, up to 30 days’ worth of compensation for not timely paying the missing wages at separation (for an employee earning the $15 California minimum wage, these penalties max out at $3,600) and attorneys’ fees. That is $7,600 in penalties, plus attorneys’ fees, for one unpaid penny in wages. Multiply that by hundreds or thousands of employees, including employees earning above the minimum wage who trigger higher waiting time penalties, and companies are quickly facing significant liability.
Under California law, an employer has a good faith dispute defence against these wage statement and waiting time penalties (among other wage-related penalties) if it reasonably believed it was following the law at the time and the law later changed, or if the law was unclear during the pertinent period.
The mere fact that the California Supreme Court chooses to decide a case should necessarily establish the good faith dispute defence. After all, the California Supreme Court often takes up cases to resolve a split of authority among federal or lower state courts. Other times, federal appellate courts find it so difficult to forecast how the California Supreme Court will decide an issue of state law that they ask the California Supreme Court to decide the issue for them.
Yet, as in all of the retroactively applied California Supreme Court cases discussed above, that Court often does not address whether a good faith dispute defence applies. As a result, companies must hire lawyers to litigate whether they are subject to penalties, and many companies are compelled to settle cases at inflated prices due to the spectre of massive penalties.
When the California Supreme Court applies new law retroactively, the resulting owed wages are often small, but the derivative penalties stemming from those unpaid wages can be crippling.
Yes. Starting with prospective application, final California Supreme Court decisions are effective immediately. If a new decision entitles employees to additional wages, the employees should begin accruing those wages right away.
But the California Supreme Court should provide a grace period before derivative penalties stemming from those wages can kick in. After all, some businesses have giant workforces with complicated personnel software controlled by third parties, which makes instant changes impossible. Smaller businesses may not have the resources to immediately figure out how to comply with new law. It is unfair to penalise well-intentioned, diligent employers that are willing to pay the new wages but simply need time to comply.
Employers have advance notice of new laws passed by the legislature well before they become effective, which gives employers time to make changes and avoid penalties. The same should be true of new rules coming out of the California Supreme Court. Retroactively applying new law without the California Supreme Court specifying whether a good faith dispute defence exists essentially requires employers to predict the future or to constantly engage lawyers. Aside from a decision by the California Supreme Court, there is no official authority employers can consult to derive a definitive understanding of what California employment law requires and that will shield against future penalties if the law changes.
As shown by Troester and Mendiola, employers cannot unreservedly rely on what the DLSE says about California law, because the California Supreme Court may ignore that agency’s interpretations and then retroactively apply contrary law without specifying whether the good faith dispute defence governs. Nor can employers unreservedly rely on opinions from the California Courts of Appeal or federal courts, because as shown by Ferra and Naranjo, the California Supreme Court can disagree with those courts and then retroactively apply contrary law without addressing the good faith dispute defence.
The lack of a reliable self-help guide short of a California Supreme Court opinion leaves businesses having to constantly engage lawyers to anticipate forthcoming legal changes. But employment lawyers – even judges – cannot always predict how the California Supreme Court will decide an issue.
For instance, Ferra shows that even when lawyers parse a statute and follow how the California Court of Appeal and multiple federal courts interpreted that statute, the California Supreme Court may disagree, make its decision retroactive without addressing the good faith dispute defence, and open employers who followed their lawyers’ advice and published court opinions to years of potential liability for unpaid compensation and penalties.
The lack of a reliable self-help guide short of a California Supreme Court opinion leaves businesses having to constantly engage lawyers to anticipate forthcoming legal changes.
In Ferra, the California Supreme Court held that premium pay must be paid at the “regular rate of pay”. That phrase is a term of art with a long-established meaning that is often used in statutes and Wage Orders to distinguish from the only other compensation metric available: an employee’s base hourly wage.
The Ferra holding was not obvious beforehand because the statute and Wage Orders that require premium pay do not say it must be given at the regular rate of pay; a different term is used. Several district courts and the California Court of Appeal agreed that premium pay is given at the base hourly wage, because if the legislature intended premium pay to be given at the regular rate of pay, it easily could have said so, as it did elsewhere in statutes for different types of compensation.
The California Supreme Court can resolve this retroactivity problem when it announces new law by opining then whether the good faith dispute defence is available. Sometimes these legal changes may be obvious and employers will be penalised. But when legal changes are not foreseeable, penalties are unfair and no employer should have to spend money fighting over the good faith dispute defence or be forced to accept inflated settlements.
PAGA is a California statute that authorises employees to file lawsuits to recover civil penalties on behalf of themselves, other employees and the State of California for violations of the California Labor Code. A major reason that PAGA lawsuits have often been filed is a line of cases beginning with the California Supreme Court in Iskanian v CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348 (2014), which holds that PAGA claims cannot be waived or compelled to individual arbitration.
But in Viking River Cruises, Inc v Moriana, 142 S. Ct. 1906 (2022), the US Supreme Court held that (1) a plaintiff’s individual PAGA claim can be compelled to arbitration and (2) as a matter of state law standing under the PAGA statute, a representative PAGA claim brought on behalf of other employees must be dismissed once the plaintiff’s individual PAGA claim has been compelled to arbitration. These holdings are significant because they allow businesses to avoid class actions and representative PAGA claims while remaining in arbitration.
When legal changes are not foreseeable, penalties are unfair and no employer should have to spend money fighting over the good faith dispute defence or be forced to accept inflated settlements.
Businesses still face real PAGA risk, however.
First, the California Supreme Court has granted review of Adolph v Uber to consider the second holding of Viking River. The California Supreme Court could decide this statutory standing issue in a way that permits a representative PAGA claim brought on behalf of other employees to proceed in court, irrespective of whether the plaintiff is arbitrating her individual PAGA claim.
Still, some employers can get around Adolph and receive the full benefits of Viking River. For some businesses, all of their employees have signed an arbitration agreement with a PAGA waiver. This means that even if the PAGA standing portion of Viking River is undone by Adolph, and trial courts retain jurisdiction over representative PAGA claims after the plaintiffs have been compelled to arbitrate their individual PAGA claims, there will be no one available to participate in those representative PAGA actions. This conclusion derives from executed waivers, not standing, which makes Adolph irrelevant. To secure a dismissal, businesses must make this argument when courts intend to stay a representative PAGA claim until Adolph is decided. If a court nevertheless stays the case, the employer has great settlement leverage.
Second, if this approach is followed, an employer can face a flood of individual arbitrations, assuming opposing counsel has access to a meaningful percentage of the workforce. Because California law requires employers to pay all expenses unique to mandatory arbitration, employers face significant arbitration costs not present in court, such as filing fees and arbitrator fees.
To minimise these risks, employers can add mass arbitration protections to their arbitration agreements, including a process to arbitrate a few test cases while the rest of the portfolio is stayed and no arbitration fees are incurred.
There are many future developments that employers should watch, including the following:
Based on current trends, the California Supreme Court could make it unlawful for employers to round employee time punches. It already barred rounding of employee meal period time punches in Donohue v AMN Servs., LLC, 11 Cal. 5th 58 (2021). And more recently, the California Court of Appeal in Camp v Home Depot USA, Inc, 2022 WL 13874360 (Cal. App. Oct. 24, 2022), held that if employers have captured the exact amount of time employee have worked, rounding is unlawful, even if it benefitted the employees overall.
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Under California Assembly Bill 51, employers may not require employees as a condition of employment to execute arbitration agreements covering claims under the California Fair Employment and Housing Act or the California Labor Code. In Chamber of Commerce of the US v Bonta, the Ninth Circuit will determine whether AB 51 is preempted by the FAA.
Though PAGA claims need not meet class action procedural requirements, some courts hold that PAGA claims must nevertheless satisfy a similar standard of manageability. The California Supreme Court recently granted review in Estrada v Royalty Carpet Mills, Inc, 76 Cal. App. 5th 685 (2022) to resolve a split of authority concerning whether trial courts may strike or limit PAGA claims as unmanageable.
I was initially a commercial litigator at Kirkland & Ellis LLP, learning from incredibly bright attorneys on ‘bet the company’ cases. But the ‘one and done’ nature of such litigation made it difficult for me to partner with clients so I could help steer their day-to-day business operations. After friends practicing employment law confirmed that working in this area would allow me to more deeply integrate with my clients, I joined Seyfarth Shaw in 2015.
Being an employment lawyer has delivered on all fronts. I regularly work with the same clients on multiple cases, which gives me a significant understanding of their businesses. I then use lessons learned from litigation and attempt to predict future legal precedent to modify my clients’ policies and practices to minimise their liability. I love the challenge of finding creative legal solutions that meet my clients’ business preferences.
My deep interest in employment law and desire to achieve great results for my clients make it easy to work very hard and passionately at my job. I was thus very proud to be recognised last year by the National Hispanic Bar Association as one of the top lawyers under 40 across the US.
Given my interest in policy, I want to argue a case before the California Supreme Court that defines a far-reaching part of California employment law. On a personal level, I want to dedicate more time to international travel with my wife and parents, publishing op-eds about US foreign policy (I have written extensively about China’s rise and other international security issues in the Indo-Pacific region), playing pickleball, and putting more miles on my Peloton tread.
Paul J. Leaf, Partner
2029 Century Park East, Suite 3500, Los Angeles, California 90067-3021, USA
Tel: +1 213-270-9724
Fax: +1 310-551-8449
Paul J. Leaf is a partner in the Los Angeles office of Seyfarth Shaw LLP. He represents businesses in employment and commercial disputes, with a focus on wage and hour class actions and representative PAGA actions. Paul also defends companies against claims of discrimination, harassment, retaliation, breach of fiduciary duty, wrongful termination, non-compete and non-solicitation. Paul enjoys leveraging lessons learned from litigation and anticipating future legal developments to draft forward-looking personnel policies for his clients in order to prevent lawsuits altogether.
Seyfarth Shaw LLP provides advisory, litigation, and transactional legal services to clients worldwide. With approximately 900 lawyers across 17 offices, Seyfarth Shaw and its employment group consistently earn top spots in national rankings of law firms.
Shannon Dorvall, general counsel at Imhoff & Associates, shares her specialised knowledge of expungement and its uses in this article.
Expungement, sealing and confidentiality are three legally distinct methods of dealing with criminal records.
The general idea behind an expungement is a do-over or reset. It is meant for people who committed a minor crime like shoplifting, minor drug offences or driving on a suspended license. People make mistakes. Mistakes should not define people. Expungements are an opportunity to start fresh in job searches and other facets of life.
Several people seeking expungements are people who did something ill-advised in their 20s or 30s and have moved forward, becoming an entirely different person often with a new life. Those small convictions can be the difference in failing to receive job offers or promotions in many fields. The goal is not to paper over someone’s past, but rather to give them another try.
Most states allow for some form of expungement for misdemeanours and over half allow expungement of certain felonies. There is no broad or general federal expungement statute and federal courts do not have the authority to expunge records of a valid federal conviction.
In most states where expungements are available, a person must prove they are worthy of the second chance. The grant of an expungement is not automatic. This is shown through an otherwise clean record, maintaining gainful employment, volunteerism and reference letters from loved ones.
People make mistakes. Mistakes should not define people.
In California, we use the term ‘dismissal’, meaning that the Court reverses a guilty plea and enters a dismissal. On paper, it looks like the case was not prosecuted. Unfortunately, this produces no change to the person’s arrest record. The former requirement to seal and destroy an arrest record was a finding of ‘factual innocence’. This was a nearly impossible standard as the person was required to demonstrate they were actually innocent of the crime versus merely not guilty. This often required a finding that no crime occurred or determining the actual culprit with some finding of guilt regarding that person. Few people were successful in reaching that standard.
Now, the law has been expanded to allow sealing and destruction of arrest records in many more cases, allowing more people a fresh start.
For immigrations purposes, only full and unconditional pardons can avoid deportation for a criminal conviction. Expungements, sealing or other mechanisms are not recognised unless there was a substantive structural or procedural error during the conviction process that led to the post-conviction relief.
Although each state differs, most require the person seeking the expungement to begin the proceedings since the process is not automatic after the completion of a sentence.
The documents and information needed to complete the petition will vary based on jurisdiction. It may be imperative to have as much documentation such as arrest records, case numbers, judgments, etc. as possible to ensure the form is completed accurately.
After the filing is prepared, applicants should be prepared to submit the filing fee required by the court. Applicants should research all the required fees prior to submitting their application to ensure it is not rejected or delayed. Some courts, where applicable, may have a filing fee per offence a petitioner is applying for.
In states where a hearing is required for the expungement, the court will set a date. The hearing may be set anywhere from 30 days to months out depending on scheduling.
Another important thing to remember is that law enforcement and other agencies may take several months to destroy records.
Expungements are an opportunity to start fresh in job searches and other facets of life.
There is a common misconception that juvenile records are automatically sealed upon the juvenile reaching 18. The laws regarding this vary widely by state. Few states allow full expungement or sealing of juvenile records, especially in the case of felonies.
For those select few states, the process is usually not automatic. Probation or the prosecution has to make the request. Where juvenile records are subject to confidentiality while the person is a minor, the states have recognised the unique nature of these documents. The files go well beyond normal criminal proceedings to include things like mental health records, school records, grades, medical records, parental history, history of abuse and dozens of other intimate details. There is a movement to make this process automatic and remove barriers such as filing fees, but it is still off in the horizon.
California has been leading the charge in the area of automatic record sealing. Beginning on 1 August 2022, the court record of convictions set aside at any time under certain diversion and deferred entry of judgment code sections where the person has completed probation terms will be automatically sealed, per the ‘Clean Slate Act’ described below. Under this Act, the state records repository is presently prohibited from including in responses to requests from the public information about convictions that have been set aside in certain situations.
Beginning 1 January 2023, California will expand automatic record relief to all felony non-convictions six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison.
Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail.
The law also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after 1 January 2005 if they violated probation but later completed all terms of supervision. Previously, a probation violation would prohibit relief. Convictions for certain serious or violent felonies and registerable sex offences are not eligible for relief.
The expunged offence can still be used as a ‘prior’ to enhance sentences or charges in most instances, barring specific exceptions in state law prohibiting it. The person is usually also required to disclose an expunged conviction if they are seeking a licensure in certain fields like teaching or to obtain security clearance.
In most cases, the expungement orders do not automatically restore firearms rights.
California has been leading the charge in the area of automatic record sealing.
Per 18 U.S.C. § 922(g)(1), convictions in any court punishable by imprisonment exceeding one year, whether the conviction is under state or federal law, are subject to the prohibition on possession of firearms under federal law. Certain state laws may also prohibit possession of a firearm. Domestic violence convictions also terminate firearms rights under federal law § 922(g)(9).
People with state convictions may avoid the federal bars in §§ 922(g)(1) and (g)(9) if their convictions have been pardoned, set aside or expunged, or if their civil rights have been restored, unless the relief they obtained “expressly provides” that they “may not” possess firearms. See 18 U.S.C. §§ 921(a)(20), (a)(33)(ii). Automatic restoration of civil rights can restore firearms possession rights, but ambiguity remains.
Circuits remain split on how to interpret the ambiguous language of § 921(a)(20). What does “free of state firearms disabilities” mean in order for a person to take advantage of the relief offered by §§ 921(a)(20) and (a)(33)? Also, the term ‘expungement’ in these federal laws is overbroad and there is an open question as to whether it applies if a record has been sealed but not completely destroyed.
A few states have information-sharing agreements with private companies that sell records – including juvenile records – online for a nominal fee. Online record check companies often use out-of-date information pulled from public court dockets and arrest or inmate reports with little to no concern for the accuracy of the information.
Those initial reports rarely match the current status of the person’s record but are difficult to correct. The online services can charge to ‘research’ a request for correction but are unlikely to correct the mistake short of a legal action. Clients and counsel should always keep copies of any orders granting sealing or expungement to strengthen their argument if there are online mistakes.
Counsel can assist clients in gathering and presenting the request in the best light. The prosecutors are usually given notice and an opportunity to object to motions where the court has discretion in granting the request. As with any situation involving courts and prosecutors, clients are best served by having an experienced advocate to assist them.
‘Ban the box’ legislation seeks to remove questions about criminal history from employment applications. Specifically, it seeks to eliminate the checkbox that asks if applicants have been convicted of a crime. Approximately 31 states, including California, have passed some form of ban the box legislation or fair chance policy. This generally requires that a conditional offer of employment be made prior to asking about convictions. 11 states also require private employers to remove questions from job applications that ask about previous criminal convictions.
‘Ban the box’ is currently focused on employment laws, but criminal records can negatively impact state or federal licensure, housing availability and education opportunities. If the goal is rehabilitation, forcing someone to wear a scarlet conviction for life prevents moving forward.
Federal employers are also subject to ‘ban the box’ rules that prohibit asking about convictions unless a conditional offer of employment has been made. Anything involving security, transportation or like jobs are excluded from ‘ban the box’ rules.
As with any situation involving courts and prosecutors, clients are best served by having an experienced advocate to assist them.
H.R. 6667, aka ‘The Fresh Start Act of 2022’, is a bill pending in Congress to allow expungement of federal non-violent offences. If passed, the law would require automatic granting of an expungement for certain federal offences seven years after completing the sentence for the offence and discretionary relief one year after completing the sentence. The bill has a low chance of passage given the newly elected Congress that will form in January, but it is a large step in the right direction. Federal law for expungement is sharply limited to first time possession cases if someone was under 21 at the time of the offence.
Courts and prosecutors are reluctant to grant the person a fresh start. Even convictions that should be automatically sealed require vigilance to make sure a person gets the relief they deserve on the local and state level. Some of my biggest fights on these cases come not from the local prosecutor, but the state Department of Justice failing to recognize the relief.
I am one of those people who always wanted to be an attorney without having a clear idea of what they did. There were no other attorneys in my family, but my aunt was a barber who cut hair for many of the local lawyers. I would sit in her shop for hours and talk to various attorneys about the law, why they became lawyers and what they loved about their job. I would listen, completely enraptured, as they discussed a big trial or a hard-fought motion. The litigators were characters who both then and now remind me of street brawlers.
I won my first ‘trial’ in eighth grade. We were doing a project on American History and were assigned roles where we put actions from history on trial in front of a jury to decide if the actions would now be a crime. I was given the role of defence attorney. A local attorney volunteered to assist with the mock trial. My side won and our teacher was very upset because I was supposed to lose. The attorney calmed him down and explained the teacher should appreciate seeing the birth of a future attorney. I was hooked.
Not everyone can be Atticus Finch, but I wanted to try, so I applied to law school.
I attended law school at the University of Montana School of Law. Likely due to my eighth grade History project and watching the OJ Simpson trial live in high school, I was drawn to the criminal and Constitutional law courses. I completed a year of clinical work at the Federal Defenders of Montana around the time Crawford v Washington was decided. Watching the tireless dedication of the attorneys in the office combing through every single file they had ever had to see if someone may have qualified for habeas relief was inspiring. I lost count of the number of habeas I drafted that year.
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I moved to California and have been practicing criminal law with Imhoff & Associates for my entire career. I recently transitioned to General Counsel for our Firm giving me more time to mentor interns and young lawyers.
Learn everything you can from anyone willing to teach you. Many aspects of life prove useful in criminal defence. I had no idea how much math and science I would need to read police reports, DNA profiles, autopsy reports and every other facet of discovery. Be open to seeing every side of an argument. Being blindsided is never fun, but there are definitely fun aspects to the work. I tell every intern the same thing. Do not assume you are right. Do the work and know you are.
Shannon Dorvall, General Counsel
12424 Wilshire Blvd, Suite 700, Los Angeles, CA 90025, USA
E: shannondorvall@criminalattorney.com
Shannon Dorvall is an experienced general counsel who has transitioned from a strong multi-year history of practicing as a trial attorney in criminal defence. Shannon graduated from The University of Montana School of Law and is skilled in trial practice and post-conviction appellate and habeas work. She is licensed to practice in all California state and federal courts as well as the Supreme Court of the United States.
Imhoff & Associates is one of the largest criminal defence law firms in the United States, with a strong presence in most states as well as the District of Columbia and Puerto Rico. Its team handles a wide variety of criminal cases, including DUI/DWI, white collar crime, violent crime and more. The firm also assists in matters involving expungements, parole violations, criminal appeals and bail reduction.
Each of these terms has a different meaning in different states. But regardless of this, each of them is a trial in which a guardian or trustee is responsible for his ward. We will look at the meanings of these terms in California. The main difference between a guardianship and a conservatorship lies in the fact that the first is established over a minor, and the second is already over an adult.
Established by the court to control the finances and personal affairs of a minor. If you have children, the best solution is to appoint a guardian for them in your will. In this case, if there are no living or capable parents left, they will not be left alone, there will be a person who will take care of them. Otherwise, a court will be appointed to appoint a guardian.
On the other hand, you can file a petition to take a minor into your custody. The application form and procedure itself vary from state to state. Examples of appeals to the guardianship authorities can be deprivation of parental rights or abandonment of the child by the parents.
But a person who wants to become or is elected a guardian does not become one immediately but is appointed only after the court satisfies this request. The application for admission is submitted by relatives of the parents, who will be able to participate in the court and object to the appointed person.
There are two types of guardianship: over a person and over the property. The first has the right to manage the personal affairs of the child, for example, place of residence, school, and so on. But he cannot regulate finances, which may be from inheritance, social security, and others.
The guardian of the property has a legal right to the minor's money. Upon reaching the age of majority, he is obliged to file with the court the accounting department and an application for the termination of guardianship.
Appointed when an adult, due to disability or addiction, cannot make decisions regarding medical care, money, and daily life. It can also be subject to undue influence or fraud. Some of the reasons for establishing conservatories may be dementia, stroke, severe psychological illness, or disability. If your relative or a close person needs such guardianship, we recommend that you consult with a conservatorship attorney, he will help you choose the right type and complete all the documents.
The conservatory is appointed only by the court, after hearing evidence that the adult needs help. This body may decide on the already chosen guardian or appoint another independently. A person who is allegedly considered incompetent has the right to hire a lawyer and object to the establishment of guardianship. In some states, a competent person may, at his own request, appoint a person who will dispose of his property. The appointed person is obliged to report his actions concerning his ward before the court. Usually, they decide where the incapacitated person will live, what needs and medical care he needs, and where he will invest his assets. Basically, the money of the ward is placed in safe financial accounts or in bonds, which can be used only with the permission of the court. When this permission is requested, immediate family members such as spouses, children, and parents are also notified. The conservator must report all expenses to the court annually, or more frequently if necessary. This type of assistance, when used correctly, is a very useful method of protecting a person with a disability. And the constant participation in this court is an additional guarantee.
Conservation may be general or limited. General means that the person under guardianship cannot make decisions on his own. And in the limited, most of the work is done by the ward himself, the conservative has the right to control only what is appointed by the court.
Does guardianship end in death? Not quite so, this type of guardianship can be terminated either by a court decision or by the death of the ward. But in the latter case, the custodian is obliged to keep the property until it is transferred to relatives or a personal representative. He will also be required to provide the court with a final account of his actions before and after the death of the ward. Only after all these procedures the conservatory officially ends.
Thus, the difference between these two concepts is quite clearly visible. The conservatory is also considered more difficult because an adult usually has more money, possessions, and responsibilities. But guardianship is also not simple, the appointed person becomes the de facto parent for the minor. But each of these processes is controlled by the court, and if worthy people are appointed, there will be no problems. In case of bad faith or for advice on these issues, we recommend that you contact specialised attorneys such as Barr & Young Attorneys.
