Filipino Immigration Attorney
Immigration and Removal Proceedings
Immigration law is constantly changing. There are always new laws, new regulations, and new ways opening up for immigrants to become green card holders and citizens of the United States.
Here at the Law Offices of Roman P. Mosqueda, we prepare and perform all categories of Immigration Law from Green Cards to Removal Hearings, to Appeals.
To learn what steps you need to take, the first thing you should do is seek legal advice. Our office offers FREE Confidential Consultations where you can to talk to an attorney for 30 minutes to an hour regarding your situation. This is the perfect opportunity to have all your questions answered by an attorney and learn what steps you need to take to become a green card holder or citizen of the United States.
There is absolutely no charge and the consult is completely confidential. During consultation you will be able to explain your situation to us, and we will go over the various options open to you and recommend the best solution for your situation.
To set up an appointment, call us at (213) 252 - 9481.
The Law Offices of Roman P. Mosqueda has been handling Immigration cases and hearings for the last 25 years. Over the years, Attorney Mosqueda has represented thousands of clients with their Immigration needs and successfully represented them in Immigration court, Department of Homeland Security (CIS & ICE), Board of Immigration Appeals, and Federal Court of Appeals.
We have many: Filipino, Spanish, Thai, European, Cambodian, Korean, and Asian clients. We speak: English, Spanish, Filipino, and Cambodian.
We Handle All Immigration Cases including:
- Deportation / Removal Proceedings Hearings
- Immigration Forms (I-130, I-485, I-765, & More: {Full List of Forms})
- Student Visas
- Working Visas
- Fiancé Visas
- Investors Visas
- Immigration Appeals
- Criminal Cases with Immigration Consequences.
Worried about the cost?
We aim to make legal service affordable with:
* Low down payments
* Custom payment plans
* And we accept credit cards!
Have a quick question or would like to speak to the Attorney First? - No problem! Give us a call and we will be more than happy to answer your questions.
Know a family member or friend that would benefit from a FREE Immigration consultation? Feel free to bring them along to sit in and ask questions or sign them up for their very own FREE consultation.
For A Free Confidential
Consultation
Call: (213) 252 - 9481
The Law Offices of Roman P. Mosqueda
"How The Law Can Work For You"
Friday, May 20, 2011
Thursday, March 24, 2011
Child Status protection Act (CSPA) for Derivative Children
Child Status Protection
Act (CSPA) for Derivative
Children
By:
Roman P. Mosqueda
B.S., LL.B., LL.M., & S.J.D.
Signed into law on August 6, 2002, the Child Status Protection Act (CSPA), PL 107-208, 116 Stat. 927, INA § 201 (8), address the problem of minor children who age out (turn 21 years of age) due to long processing delays and large backlogs.
It permits certain beneficiaries in family -based, employment-based and
diversity-based petitions, as well as in some humanitarians programs (refugees, asylees, Violence Against Woman Act) to retain classifications as a “child” despite reaching the age of 21.
In the context of an employments-based petition, the CSPA allows the time the Form I-140, Immigrant Petition for Alien Workers, was pending to be subtracted from beneficiary’s biological age at the time of immigrant visa availability on the approval date thereof, whichever is later. INA § 203 (h) (3).
Formula For Determining
CSPA Age of Derivative Children :
Section 3 of the CSPA provides the formula for determining the CSPA age of direct and derivative children who are beneficiaries of family and employment-based petitions, as fallows:
(1) Determine the age of the child at the time an immigrant visa number becomes available (priority date of labor certification application (LCA) or of Form I-140 exempted from LCA becomes current), or the Form I-140 approval date, whichever is later;
(2) Subtract from this biological age the number of days that the Form I-140 Immigrant Visa Petition was pending (from receipt date to approval date) to get the CSPA age; and
(3) The child must “seek to acquire” lawful permanent resident (LPR) status (adjustment or immigrant visa) within one year of the approval of the I-140 petition or the availability of the immigrant visa, whichever is later.
For example, if the Form I-140 was filed in 2004, when the derivative child of the beneficiary was 19 years of age, and the priority date of the LCA of Form I-140 became available at that time (2004), but the Form I-140 petition was pending for 4 years, the biological age of the child after 4 years is 23 years, but his or her CSPA age is still 19 years. So, he or she has not aged-out.
In effect the CSPA locks in the age of a child at an earlier date that his or her age at the time of adjudication of adjustment of status (Form I-485) in the United States or of the immigrant visa application (Form DS-230 Part I).
Meaning of “Seeks To
Acquire” LPR Status:
The third prong of the formula for the application of the CSPA to derivative children stated above is that the child must “seek to acquire” lawful permanent resident (LPR) status within one year of the approval of the petition or the availability of the immigrant visa, whichever is later, in order to obtain the benefits of the CSPA.
The date of immigrant availability is defined by the U.S. Citizenship and Immigration Services (USCIS) as the first day of the first month a visa in the appropriate category was listed as available in the Department of State Visa Bulletin.
As a statute of limitations, this one-year period within which to apply for LPR Status, as a filing deadline, has been interpreted by the Department of State as follows:
(1.) The date the derivative child (not his or hers parent) submits the Completed Application For Immigrant Visa And Alien Registration (Form DS-230, Part I) and its reaching in the immigrant visa system;
(2.) As for a “following to join” derivative child whose LPR parent is in the United States, the date the child seeks to acquire LPR status for the one year filing deadline for the immigrant visa application is the date the parent files Form I-824, Application for Action On An Approved Application Or Petition, on the Child’s behalf (which can be filed with the parents I-485), or takes a “concrete step “forwards seeking LPR Status. DOS Cable, 03-state 15049 (1/17/03) 4422,23.
For example, a Form I-140 petition was filed in 2000 by a parent’s employer when the derivative child was 20 years of age. The Form I-140 petition was approved in 2002, and the immigrant visa number was current on approval.
The derivative child waited until 2004:
(1) To apply for adjustment of status (Form I-485) in the United Sates; or
(2) To submit the completed From DS-230 Part I for consular processing; or
(3) To take “concrete steps” towards seeking LPR status; or
(4) The parent filed Form I-824 with USCIS only in 2004.
In the four scenarios, the derivative child, although having a CSPA age of 20, is still ineligible to obtain LPR status because he or she or his her parent failed to file within one year of the I-140 Petition Approval or the availability of the immigrant visa, both 2002. The filing in 2004 was one year too late.
(The Author, Roma P. Mosqueda, has been practicing immigration law, among other areas of law, for over 20 years. He is a member of AILA and of the California Public Defenders Association. He is also a member of the Million Dollar Advocated Forum.
For comments on this article, e-mail to rpm_law@yahoo.com, or call (213) 252-9481 for free consultation appointments, or visit his website at www.mosquedalaw.com)
Act (CSPA) for Derivative
Children
By:
Roman P. Mosqueda
B.S., LL.B., LL.M., & S.J.D.
Signed into law on August 6, 2002, the Child Status Protection Act (CSPA), PL 107-208, 116 Stat. 927, INA § 201 (8), address the problem of minor children who age out (turn 21 years of age) due to long processing delays and large backlogs.
It permits certain beneficiaries in family -based, employment-based and
diversity-based petitions, as well as in some humanitarians programs (refugees, asylees, Violence Against Woman Act) to retain classifications as a “child” despite reaching the age of 21.
In the context of an employments-based petition, the CSPA allows the time the Form I-140, Immigrant Petition for Alien Workers, was pending to be subtracted from beneficiary’s biological age at the time of immigrant visa availability on the approval date thereof, whichever is later. INA § 203 (h) (3).
Formula For Determining
CSPA Age of Derivative Children :
Section 3 of the CSPA provides the formula for determining the CSPA age of direct and derivative children who are beneficiaries of family and employment-based petitions, as fallows:
(1) Determine the age of the child at the time an immigrant visa number becomes available (priority date of labor certification application (LCA) or of Form I-140 exempted from LCA becomes current), or the Form I-140 approval date, whichever is later;
(2) Subtract from this biological age the number of days that the Form I-140 Immigrant Visa Petition was pending (from receipt date to approval date) to get the CSPA age; and
(3) The child must “seek to acquire” lawful permanent resident (LPR) status (adjustment or immigrant visa) within one year of the approval of the I-140 petition or the availability of the immigrant visa, whichever is later.
For example, if the Form I-140 was filed in 2004, when the derivative child of the beneficiary was 19 years of age, and the priority date of the LCA of Form I-140 became available at that time (2004), but the Form I-140 petition was pending for 4 years, the biological age of the child after 4 years is 23 years, but his or her CSPA age is still 19 years. So, he or she has not aged-out.
In effect the CSPA locks in the age of a child at an earlier date that his or her age at the time of adjudication of adjustment of status (Form I-485) in the United States or of the immigrant visa application (Form DS-230 Part I).
Meaning of “Seeks To
Acquire” LPR Status:
The third prong of the formula for the application of the CSPA to derivative children stated above is that the child must “seek to acquire” lawful permanent resident (LPR) status within one year of the approval of the petition or the availability of the immigrant visa, whichever is later, in order to obtain the benefits of the CSPA.
The date of immigrant availability is defined by the U.S. Citizenship and Immigration Services (USCIS) as the first day of the first month a visa in the appropriate category was listed as available in the Department of State Visa Bulletin.
As a statute of limitations, this one-year period within which to apply for LPR Status, as a filing deadline, has been interpreted by the Department of State as follows:
(1.) The date the derivative child (not his or hers parent) submits the Completed Application For Immigrant Visa And Alien Registration (Form DS-230, Part I) and its reaching in the immigrant visa system;
(2.) As for a “following to join” derivative child whose LPR parent is in the United States, the date the child seeks to acquire LPR status for the one year filing deadline for the immigrant visa application is the date the parent files Form I-824, Application for Action On An Approved Application Or Petition, on the Child’s behalf (which can be filed with the parents I-485), or takes a “concrete step “forwards seeking LPR Status. DOS Cable, 03-state 15049 (1/17/03) 4422,23.
For example, a Form I-140 petition was filed in 2000 by a parent’s employer when the derivative child was 20 years of age. The Form I-140 petition was approved in 2002, and the immigrant visa number was current on approval.
The derivative child waited until 2004:
(1) To apply for adjustment of status (Form I-485) in the United Sates; or
(2) To submit the completed From DS-230 Part I for consular processing; or
(3) To take “concrete steps” towards seeking LPR status; or
(4) The parent filed Form I-824 with USCIS only in 2004.
In the four scenarios, the derivative child, although having a CSPA age of 20, is still ineligible to obtain LPR status because he or she or his her parent failed to file within one year of the I-140 Petition Approval or the availability of the immigrant visa, both 2002. The filing in 2004 was one year too late.
(The Author, Roma P. Mosqueda, has been practicing immigration law, among other areas of law, for over 20 years. He is a member of AILA and of the California Public Defenders Association. He is also a member of the Million Dollar Advocated Forum.
For comments on this article, e-mail to rpm_law@yahoo.com, or call (213) 252-9481 for free consultation appointments, or visit his website at www.mosquedalaw.com)
Wednesday, March 16, 2011
Criminal Cases with Immigration Consequences Los Angeles
If you are an immigrant charged with a crime in los angeles, be aware of the immigration consequences that you could be facing.
In many cases, crimes are good ground for the Department of Homeland Security to revoke your Green Card, Visa, and other forms of temporary residence.
In this situation, hiring a criminal defense attorney is not enough. Most criminal law lawyers know very little about immigration law and the potential pitfalls.
Atty Roman P. Mosqueda has been practicing both Criminal and Immigration Law for over 25 years. The benefits of practicing both fields of law are as follows.
1. You save Money: Atty Mosqueda offers discounts for bundling cases.
2. You get more Experience: You get two expert attorneys for the price of one
3. You get a Dedicated One Stop Lawyer: No need to explain your case to 2 different lawyers.
4. You get better Results: Atty. Mosqueda is able to handle your special situation with more skill than any single practice attorney.
We also can:
1. Lower your bail premium
2. Reduce charges against you. (Felony -> Misdemeanor -> Thrown out case)
3. Expert Services
4. The comfort of speaking with an Attorney who was also a First Generation Immigrant himself.
Call (213) 252-9481 to set up a FREE CONSULTATION with Attorney Roman P. Mosqueda today.
In many cases, crimes are good ground for the Department of Homeland Security to revoke your Green Card, Visa, and other forms of temporary residence.
In this situation, hiring a criminal defense attorney is not enough. Most criminal law lawyers know very little about immigration law and the potential pitfalls.
Atty Roman P. Mosqueda has been practicing both Criminal and Immigration Law for over 25 years. The benefits of practicing both fields of law are as follows.
1. You save Money: Atty Mosqueda offers discounts for bundling cases.
2. You get more Experience: You get two expert attorneys for the price of one
3. You get a Dedicated One Stop Lawyer: No need to explain your case to 2 different lawyers.
4. You get better Results: Atty. Mosqueda is able to handle your special situation with more skill than any single practice attorney.
We also can:
1. Lower your bail premium
2. Reduce charges against you. (Felony -> Misdemeanor -> Thrown out case)
3. Expert Services
4. The comfort of speaking with an Attorney who was also a First Generation Immigrant himself.
Call (213) 252-9481 to set up a FREE CONSULTATION with Attorney Roman P. Mosqueda today.
Filipino Criminal Defense Lawyer in Los Angeles
The Law Offices of Roman P. Mosqueda has been serving the community of Southern California for over 25 years. We have defended our clients against criminal charges brought against them with great success. We win cases.
We are currently offering FREE CONFIDENTIAL consultation at our offices.
CALL (213) 252 - 9481 Today!
Don't leave your future in the hands of overworked public defenders or inexperienced lawyers. Call (213) 252 - 9481 now and have your consultation with Atty. Mosqueda personally.
We are currently offering FREE CONFIDENTIAL consultation at our offices.
CALL (213) 252 - 9481 Today!
Don't leave your future in the hands of overworked public defenders or inexperienced lawyers. Call (213) 252 - 9481 now and have your consultation with Atty. Mosqueda personally.
Tuesday, March 15, 2011
Toyota's Product Liability Issues
Toyota Motor Corporation's product liability for unintended acceleration and braking problems, which has reportedly led to 10 million recalls and counting, would eventually be found to be manufacturing and/or design safety defects.
From the reported accounts of several accidents involving sudden acceleration and brake failure, the safety defects may, hopefully for Toyota, be limited to accelerator-pedal trapping floor mats, sticking accelerator pedals, and inconsistent anti-lock brake systems (ABS), and not include defective electronic throttle control systems (ETCS) or stirring systems, on Corollas, Camrys, and other Toyota models.
Toyota's global recalls have included Prius and Lexus hybrids, which indicate that the safety defects related to unintended acceleration and braking problems are systemic in nature.
Indeed, Toyota dealers nationwide have reportedly begun fixing accelerator pedals on recalled vehicles by installing a precision-cut reinforcement bar into the accelerator pedal assembly to eliminate the excess friction that has caused pedals to stick on occasions.
Dealers will also place reconfigured accelerator pedals and newly-designed floor mats on affected models to remedy floor mat pedal entrapment, and remedy the inconsistent brake feel of the anti-lock system (ABS) in 2010 Prious.
Moreover, Toyota will install a brake override system that cuts the engine on simultaneous application of accelerator and brake pedals. Even as Toyota is implementing the brake override system, it asserts that it "is confident that no defect exists in the electronic control unit (ECU)."
Manufacturing Versus Design Defects:
A. Manufacturing Defects:
The manufacturing process of a product consists of the formation, assembly, adjustment, combination, or processing of raw materials or ingredients according to the product design, per CCH, I Products Liability Reporter, Section 4785. Thus, manufacturing defects may arise from improper formation, faulty assembly or adjustment, incorrect composition, or defective raw materials or component parts.
Toyota has identified the manufacturing defect that causes sticking accelerators as the: "friction device that includes a 'shoe' that rubs against an adjoining surface during normal pedal operation. Due to the "materials used, wear and environmental conditions," these surfaces may begin to stick.... In some cases, friction could increase to a point... that the pedal sticks, leaving the throttle potentially open."
In one of the early Firestone cases filed by this Author in August 1999, with the Superior Court of Los Angeles County, the left rear tire of the injured family's Ford Explorer, a 1994 Firestone Radial ATX, had its tread along with one steel ply coming off completely all the way around the tire.
It caused the 1995 Ford Explorer running at 65 miles per hour on US 101 Freeway in Solvang County, Santa Barbara, California to run out of control and overturn, injuring a couple and their two minor daughters in a nonfatal accident in August 1998.
Bridgestone/Firestone Inc., settled before trial based on the expert report of Transamerican Consultant Engineers, Inc., obtained by this Author, which concluded that: "(T)he cause of the tread separation was due to a poor bond between the steel plies due to failure of the brass plating on the wires to completely fuse with the sulfur in the rubber during the vulcanizing process."
That case exemplified the manufacturing defect of incorrect composition or defective bonding materials.
B. Design Defects:
The designing of a product consists of the selection of materials and their intended construction as to size, shape, inclusion, and arrangement of component parts, per CCH, I Products Liability Reporter, Section 4745.
Thus, defects in design may take the forms of inadequacies in the plans or specifications, in the choice of materials for the product composition, or in the absence of safety devices or features.
Toyota's installation of a precision-cut reinforcement bar into the accelerator pedal assembly is a design safety device to remedy sudden acceleration. And its reconfiguration of the shape of the accelerator pedal and newly-designed floor mats are likewise design remedies to avoid floor mat pedal entrapment. Moreover, the installation of a brake override system is another design safety feature.
The placement of fuel tanks close to the rear bumpers in Ford's Pintos in the 1970's, which in a 1978 case in Orange County, California, caused the gas tank to explode in a rear-end collision, exemplified the design defect of inadequate plans or specifications.
Defective vehicle design was also at issue in the January 2002 roll-overs of a 1997 Ford Explorer SUV, which left a mother of two paralyzed from the waist down when the Explorer's roof caved in.
The San Diego jury found that Ford knew that the Explorer had design defects that increased its propensity to tip over, as well as its inadequate roof strength. The U.S. Supreme Court let stand the $82.6 million award to the paralyzed California women, which included $55 million in punitive damages.
Conclusion:
A vehicle recall is an admission of a defect or defects, whether manufacturing or design or both. Hopefully, the recall of Toyota vehicles would cure the defects. And Toyota would be liable only for the reduction in value and loss of use of the vehicle while being fixed. Otherwise, it may be liable also for punitive damages if it knew the defects all along.
For accident cases resulting in bodily injuries or deaths for sudden acceleration and failure of the brakes, the plaintiffs need to prove by a preponderance of the evidence either manufacturing or design or both defects through reconstruction and automotive experts.
Toyota Motor Corporation through their own experts will need to prove lack of defects or lack of causation for the injuries or death, that is, the loss of control of the Toyota vehicle was due to driver error. The jury and the appeal courts in case of appeals from the jury award or defense verdict will decide the outcome.
Our adversarial system of deciding legal disputes in courts would hopefully do justice to whom it is due.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
From the reported accounts of several accidents involving sudden acceleration and brake failure, the safety defects may, hopefully for Toyota, be limited to accelerator-pedal trapping floor mats, sticking accelerator pedals, and inconsistent anti-lock brake systems (ABS), and not include defective electronic throttle control systems (ETCS) or stirring systems, on Corollas, Camrys, and other Toyota models.
Toyota's global recalls have included Prius and Lexus hybrids, which indicate that the safety defects related to unintended acceleration and braking problems are systemic in nature.
Indeed, Toyota dealers nationwide have reportedly begun fixing accelerator pedals on recalled vehicles by installing a precision-cut reinforcement bar into the accelerator pedal assembly to eliminate the excess friction that has caused pedals to stick on occasions.
Dealers will also place reconfigured accelerator pedals and newly-designed floor mats on affected models to remedy floor mat pedal entrapment, and remedy the inconsistent brake feel of the anti-lock system (ABS) in 2010 Prious.
Moreover, Toyota will install a brake override system that cuts the engine on simultaneous application of accelerator and brake pedals. Even as Toyota is implementing the brake override system, it asserts that it "is confident that no defect exists in the electronic control unit (ECU)."
Manufacturing Versus Design Defects:
A. Manufacturing Defects:
The manufacturing process of a product consists of the formation, assembly, adjustment, combination, or processing of raw materials or ingredients according to the product design, per CCH, I Products Liability Reporter, Section 4785. Thus, manufacturing defects may arise from improper formation, faulty assembly or adjustment, incorrect composition, or defective raw materials or component parts.
Toyota has identified the manufacturing defect that causes sticking accelerators as the: "friction device that includes a 'shoe' that rubs against an adjoining surface during normal pedal operation. Due to the "materials used, wear and environmental conditions," these surfaces may begin to stick.... In some cases, friction could increase to a point... that the pedal sticks, leaving the throttle potentially open."
In one of the early Firestone cases filed by this Author in August 1999, with the Superior Court of Los Angeles County, the left rear tire of the injured family's Ford Explorer, a 1994 Firestone Radial ATX, had its tread along with one steel ply coming off completely all the way around the tire.
It caused the 1995 Ford Explorer running at 65 miles per hour on US 101 Freeway in Solvang County, Santa Barbara, California to run out of control and overturn, injuring a couple and their two minor daughters in a nonfatal accident in August 1998.
Bridgestone/Firestone Inc., settled before trial based on the expert report of Transamerican Consultant Engineers, Inc., obtained by this Author, which concluded that: "(T)he cause of the tread separation was due to a poor bond between the steel plies due to failure of the brass plating on the wires to completely fuse with the sulfur in the rubber during the vulcanizing process."
That case exemplified the manufacturing defect of incorrect composition or defective bonding materials.
B. Design Defects:
The designing of a product consists of the selection of materials and their intended construction as to size, shape, inclusion, and arrangement of component parts, per CCH, I Products Liability Reporter, Section 4745.
Thus, defects in design may take the forms of inadequacies in the plans or specifications, in the choice of materials for the product composition, or in the absence of safety devices or features.
Toyota's installation of a precision-cut reinforcement bar into the accelerator pedal assembly is a design safety device to remedy sudden acceleration. And its reconfiguration of the shape of the accelerator pedal and newly-designed floor mats are likewise design remedies to avoid floor mat pedal entrapment. Moreover, the installation of a brake override system is another design safety feature.
The placement of fuel tanks close to the rear bumpers in Ford's Pintos in the 1970's, which in a 1978 case in Orange County, California, caused the gas tank to explode in a rear-end collision, exemplified the design defect of inadequate plans or specifications.
Defective vehicle design was also at issue in the January 2002 roll-overs of a 1997 Ford Explorer SUV, which left a mother of two paralyzed from the waist down when the Explorer's roof caved in.
The San Diego jury found that Ford knew that the Explorer had design defects that increased its propensity to tip over, as well as its inadequate roof strength. The U.S. Supreme Court let stand the $82.6 million award to the paralyzed California women, which included $55 million in punitive damages.
Conclusion:
A vehicle recall is an admission of a defect or defects, whether manufacturing or design or both. Hopefully, the recall of Toyota vehicles would cure the defects. And Toyota would be liable only for the reduction in value and loss of use of the vehicle while being fixed. Otherwise, it may be liable also for punitive damages if it knew the defects all along.
For accident cases resulting in bodily injuries or deaths for sudden acceleration and failure of the brakes, the plaintiffs need to prove by a preponderance of the evidence either manufacturing or design or both defects through reconstruction and automotive experts.
Toyota Motor Corporation through their own experts will need to prove lack of defects or lack of causation for the injuries or death, that is, the loss of control of the Toyota vehicle was due to driver error. The jury and the appeal courts in case of appeals from the jury award or defense verdict will decide the outcome.
Our adversarial system of deciding legal disputes in courts would hopefully do justice to whom it is due.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Battery For Hugging And Attempting To Kiss
A female adult patient files a complaint with the Police Department that an ultrasound technician at a clinic had hugged and attempted to kiss her during the examination in the examination room.
The detectives interview the female adult victim and the suspect technician, who denied the accusation. The Huntington Park Police Department submits to the Los Angeles County District Attorney's Office a charge of battery in violation of Section 242 of the California Penal Code against the ultrasound technician.
Battery is defined as "any willful and unlawful use of force or violence upon the person of another" by Penal Code Section 242. It is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment, under Penal Code Section 243.
Ordinary Battery Not Sexual Battery:
Ordinary battery is differentiated from sexual battery in that sexual battery is defined by Penal Code Section 243.4 as: "touch(ing) an intimate part (sexual organ, anus, groin, or buttocks of any person, and the breast of a female) of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse...."
Sexual battery is normally punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000), under Penal Code Section 243.4(a).
So, the crime of sexual battery is a "wobbler." While it is normally charged as a misdemeanor (fine and/or county jail imprisonment), it can be charged as a felony (fine and state prison), depending on the facts of the crime at the prosecutorial discretion of the District Attorney.
Misdemeanor Complaint For Battery, Penal Code Section 242:
This kind of Complaint usually is filed as a misdemeanor by the District Attorney, consisting of one count. From the experience of this Author, the District Attorney's Office or the City Attorney's Office presents its "offer" for disposition of the case to the defense. The offer states what the prosecution wants from the defendant. This offer starts the process of plea bargaining.
It takes the prosecutor and defense counsel to agree to a final, plea-bargain disposition, and the Judge to approve it.
Ultimately, punishment for such crimes include: (1) stay-away, Protective - Restraining Order; (2) 15 sex counseling sessions; (3) 3-year Summary Probation; (4) no jail time, but 7 days of community service; and (5) $100 restitution fine.
******
(The Author, Roman P. Mosqueda, has been a criminal defense counsel for over 20 years in cases with the federal and state courts in California and New York)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
The detectives interview the female adult victim and the suspect technician, who denied the accusation. The Huntington Park Police Department submits to the Los Angeles County District Attorney's Office a charge of battery in violation of Section 242 of the California Penal Code against the ultrasound technician.
Battery is defined as "any willful and unlawful use of force or violence upon the person of another" by Penal Code Section 242. It is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment, under Penal Code Section 243.
Ordinary Battery Not Sexual Battery:
Ordinary battery is differentiated from sexual battery in that sexual battery is defined by Penal Code Section 243.4 as: "touch(ing) an intimate part (sexual organ, anus, groin, or buttocks of any person, and the breast of a female) of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse...."
Sexual battery is normally punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000), under Penal Code Section 243.4(a).
So, the crime of sexual battery is a "wobbler." While it is normally charged as a misdemeanor (fine and/or county jail imprisonment), it can be charged as a felony (fine and state prison), depending on the facts of the crime at the prosecutorial discretion of the District Attorney.
Misdemeanor Complaint For Battery, Penal Code Section 242:
This kind of Complaint usually is filed as a misdemeanor by the District Attorney, consisting of one count. From the experience of this Author, the District Attorney's Office or the City Attorney's Office presents its "offer" for disposition of the case to the defense. The offer states what the prosecution wants from the defendant. This offer starts the process of plea bargaining.
It takes the prosecutor and defense counsel to agree to a final, plea-bargain disposition, and the Judge to approve it.
Ultimately, punishment for such crimes include: (1) stay-away, Protective - Restraining Order; (2) 15 sex counseling sessions; (3) 3-year Summary Probation; (4) no jail time, but 7 days of community service; and (5) $100 restitution fine.
******
(The Author, Roman P. Mosqueda, has been a criminal defense counsel for over 20 years in cases with the federal and state courts in California and New York)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Form I-824, Application For Action on an Approved Application Or Petition
A Petition for Alien Relative (Form I-130) or an Application To Register Permanent Residence or Adjust Status (Form I-458) or an Application for Naturalization (Form N-400) has been approved by the U.S. Citizenship and Immigration Services (USCIS). What is the next step?
An Application of Action on an Approved Application or Petition (Form I-824, $340,00 filing fee) is used by an applicant to request: (1) a duplicate approval notice (2) USCIS to notify a different U.S. Consulate or Port-of-Entry about the approval of an application or petition; (3) USCIS to nifty a U.S. Consulate that the applicant's approved immigrant vista (form I-130) to the National Visa Center (NVC); of (5) USCIS to notify the U.S. Department of State of the applicant's U.S. citizenship status.
Information Required by Form I-824:
Index information (name, address, daytime phone number, country of birth and citizenship, date of birth, Alien Number, Social Security Number) about the applicant filing Form I-824.; information about eh original petition (Form I-130) of application (Form I-458, N-400) (type and form number, Receipt Number on Form I-797, Notice of Action, filing date, approval date, immigration status of petitioner or applicant, naturalization certificate number); information about the principal beneficiary of the original petition or application (name, date of birth, country of birth, Alien number, home address mailing address and daytime phone number) are required in filling up Form I-824.
Indeed, Form I-824 is used to request further action on an approved petition or application. So, the said information are required for processing of the request stated therein.
Purposes For Which Form I-824 Cannot Be Used:
Note, however, that Form I-824 cannot be used to verify the status of a pending petition or application. Nor will Form I-842 be processed, if the original petition or application has not been approved, or has been denied.
Nor can Form I-824 be used to request: (1) a duplicate approval notice naming a spouse or children accompanying or following-to-join the principal beneficiary on an approved immigration or (2) USCIS to cable information to the U.S. Consulate regarding the approval of your expired nonimmigrant application or petition, if the employment of the applicant for the original petitioner (in Form I-140 or Form I-129) has ended; or (4) USCIS to notify a U.S. Consulate of the approval of a Form I-600A, Application for Advance Processing of Orphan Petition, and/or a Form I-600, Petition to Classify Orphan as an Immediate Relative.
Moreover, a separate Form I-824 must be filled for each action being requested, with separate filing fee to the USCIS.
Application of Form I-824 to Factual Situations:
There are various situations when Form I-824 would be needed: (1) replacement of lost approval notice of Forms I-130, I-140, I-145 etc., to a U.S. Consulate for processing of immigrant visa to immediate relatives and/or derivatives (spouses and minor children nor considered immediate relatives under the preferences); (3) sending by the USCIS of the approved immigrant visa (Forms I-130, I-140) to the National Visa Center (NVC) for processing of the application for immigrant visa of the beneficiary and derivatives; and (4) notification by the USCIS of the applicant's U.S. citizenship status tot eh U.S. Department of State.
Specific Actions That May Be Taken on Requests:
The Requested duplicate approval notice will contain only the information listed on the original Form I-797, Notice of Action. It will not include a replacement employment card, Form I-688A, Form I-94, or any other USCIS authorization document that accompanied the original Form I-797.
As stated earlier, Form I-695 is used to apply for replacement for the employment authorization. From I-102 Application for Replacement of Nonimmigrant Arrival-Departure Document, $320.00 filing fee, is used to obtain replacement of Form I-94 (Departure Document).
Any notification to a U.S. Consul by the USCIS as request is done through cable. And notification of a U.S. Consulate of the adjustment of status of an applicant is available only on following-to-join immigrant relative visas based on a principal's (beneficiary) employment, fiancé (e), or diversity status.
In lieu of requesting the USCIS to notify the U.S. Department of State of the application's U.S. Citizenship status, the applicant or new U.S. citizen may submit a copy of the naturalization certificate to the National Visa Center at 32 Rochester Avenue, Portsmouth, New Hampshire 03801-2909.
Form I-824 may be ordered by calling toll-free number 1-800-870-3676, or calling the USCIS National Customer Service Center at 1-800-375-5283, or visiting the internet website at www.uscis.gov.
Once completed, Form I-824 and any related evidence, together with the $340.00 filing fee payable to U.S. Department of Homeland Security, should be filed with the USCIS Service Center or local office that approved the original petition or application.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
An Application of Action on an Approved Application or Petition (Form I-824, $340,00 filing fee) is used by an applicant to request: (1) a duplicate approval notice (2) USCIS to notify a different U.S. Consulate or Port-of-Entry about the approval of an application or petition; (3) USCIS to nifty a U.S. Consulate that the applicant's approved immigrant vista (form I-130) to the National Visa Center (NVC); of (5) USCIS to notify the U.S. Department of State of the applicant's U.S. citizenship status.
Information Required by Form I-824:
Index information (name, address, daytime phone number, country of birth and citizenship, date of birth, Alien Number, Social Security Number) about the applicant filing Form I-824.; information about eh original petition (Form I-130) of application (Form I-458, N-400) (type and form number, Receipt Number on Form I-797, Notice of Action, filing date, approval date, immigration status of petitioner or applicant, naturalization certificate number); information about the principal beneficiary of the original petition or application (name, date of birth, country of birth, Alien number, home address mailing address and daytime phone number) are required in filling up Form I-824.
Indeed, Form I-824 is used to request further action on an approved petition or application. So, the said information are required for processing of the request stated therein.
Purposes For Which Form I-824 Cannot Be Used:
Note, however, that Form I-824 cannot be used to verify the status of a pending petition or application. Nor will Form I-842 be processed, if the original petition or application has not been approved, or has been denied.
Nor can Form I-824 be used to request: (1) a duplicate approval notice naming a spouse or children accompanying or following-to-join the principal beneficiary on an approved immigration or (2) USCIS to cable information to the U.S. Consulate regarding the approval of your expired nonimmigrant application or petition, if the employment of the applicant for the original petitioner (in Form I-140 or Form I-129) has ended; or (4) USCIS to notify a U.S. Consulate of the approval of a Form I-600A, Application for Advance Processing of Orphan Petition, and/or a Form I-600, Petition to Classify Orphan as an Immediate Relative.
Moreover, a separate Form I-824 must be filled for each action being requested, with separate filing fee to the USCIS.
Application of Form I-824 to Factual Situations:
There are various situations when Form I-824 would be needed: (1) replacement of lost approval notice of Forms I-130, I-140, I-145 etc., to a U.S. Consulate for processing of immigrant visa to immediate relatives and/or derivatives (spouses and minor children nor considered immediate relatives under the preferences); (3) sending by the USCIS of the approved immigrant visa (Forms I-130, I-140) to the National Visa Center (NVC) for processing of the application for immigrant visa of the beneficiary and derivatives; and (4) notification by the USCIS of the applicant's U.S. citizenship status tot eh U.S. Department of State.
Specific Actions That May Be Taken on Requests:
The Requested duplicate approval notice will contain only the information listed on the original Form I-797, Notice of Action. It will not include a replacement employment card, Form I-688A, Form I-94, or any other USCIS authorization document that accompanied the original Form I-797.
As stated earlier, Form I-695 is used to apply for replacement for the employment authorization. From I-102 Application for Replacement of Nonimmigrant Arrival-Departure Document, $320.00 filing fee, is used to obtain replacement of Form I-94 (Departure Document).
Any notification to a U.S. Consul by the USCIS as request is done through cable. And notification of a U.S. Consulate of the adjustment of status of an applicant is available only on following-to-join immigrant relative visas based on a principal's (beneficiary) employment, fiancé (e), or diversity status.
In lieu of requesting the USCIS to notify the U.S. Department of State of the application's U.S. Citizenship status, the applicant or new U.S. citizen may submit a copy of the naturalization certificate to the National Visa Center at 32 Rochester Avenue, Portsmouth, New Hampshire 03801-2909.
Form I-824 may be ordered by calling toll-free number 1-800-870-3676, or calling the USCIS National Customer Service Center at 1-800-375-5283, or visiting the internet website at www.uscis.gov.
Once completed, Form I-824 and any related evidence, together with the $340.00 filing fee payable to U.S. Department of Homeland Security, should be filed with the USCIS Service Center or local office that approved the original petition or application.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Contempt For Failure to Pay Child, Spousal, Family Support
No child, spousal, or family support ordered by the Family Court is paid by the obligor parent or spouse, resulting in contempt of court at the time the support payment was due. A judgment or order made or entered pursuant to the California Family Code may be enforced by the Family Court by contempt in its discretion, under § 290 of the Family Code.
Each month of failure to pay in full, child, spousal, or family support when due constitutes a separate count or charge of contempt, for which punishment is imposed for each count proven, under § 1218.5(a) of the California Code of Civil Procedure.
The period or statute of limitations for commencing a contempt action based on failure to pay child, spousal, or family support is three (3) years from the date that the payment was due, under § 1218.5(b) thereof.
Contempt proceedings are initiated in California by completing and filing Judicial Council Form FL-410, Order To Show Cause and Affidavit For Contempt, and the required Judicial Council attachment, depending on the kind of underlying order issued.
Elements Of Contempt And
Burdens And Standards Of Proofs:
§ 1209.5 of the California Code of Civil Procedure states the elements of civil contempt based on failure to comply with a child support order as follows:
(1) valid underlying support order of a court of competent jurisdiction;
(2) obligor's (contemner's) knowledge of the order through:
(a) proof that the order was made, filed and served on the obligor parent; or
(b) proof that the obligor parent was present in court at the time the order was pronounced; and
(3) noncompliance of the support order, as prima facie evidence of a contempt of court.
These three (3) elements are also stated in In re Ivey (2000) 85 CA9th 793, 803, 102 CR 447, which further held that:
"If the petitioner proves those elements beyond a reasonable doubt the violation is established. He or she need go no further. To prevail on the affirmative defense of inability to comply with the support order, the contemnor (or contemner) must prove such inability by a preponderance of the evidence."
Ability to pay by the alleged obligor (contemner) was not considered an element of contempt because "the failure to pay constituting the contempt occurred shortly after the determination of ability to pay had been made (in the underlying orders)," in In re Ivey, supra, involving a father's failure to pay the mother's pendente lite attorney and expert fees in a criminal contempt action.
Thus, while the proponent (petitioner) of the contempt has the burden of proving the elements of contempt beyond a reasonable doubt (a criminal case standard of proof), the alleged contemner has the burden of proving inability to comply as an affirmative defense by a preponderance of the evidence (a civil case standard of proof).
Types Of Contempt Proceedings
And Sentences Imposed:
Contempt proceedings may be civil or criminal in nature. Civil contempt is governed by §§ 1209-1222 of the California Code of Civil Procedure; while criminal contempt for violation of penal statutes is prosecuted as a crime, under § 166 of the California Penal Code.
Contempt proceedings are considered "civil" in nature, if the contempt judgment coersively subjects the obligor or contemner to imprisonment only until he or she complies with the act(s) ordered by the court. So, a "civil" contemner may be incarcerated indefinitely pending compliance of the contempt order, under § 1218(c) of the California Code of Civil Procedure. But the civil contemner has the "ability to purge" by performing the act(s) ordered.
The lack of "ability to purge" characterizes contempt proceedings as "criminal" in nature. It is punitive, rather than coercive. And a criminal contempt judgment subjects the obligor or contemner to a sentence of fine not exceeding one thousand dollars ($1,000.00), or imprisonment not exceeding five (5) days or both for each count of contempt.
Thus, the potentially indefinite incarceration resulting from a civil contempt judgment arguably renders it more onerous, even more punitive than criminal contempt, under certain circumstances.
But the parties and even the court may not know what type of contempt proceedings they are in, until the particular judgment is pronounced or issued by the court.
The complexities and uncertainties of outcomes of contempt proceedings have relegated contempt as a tactical tool for exacting settlement from the defaulting parent or spouse.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Each month of failure to pay in full, child, spousal, or family support when due constitutes a separate count or charge of contempt, for which punishment is imposed for each count proven, under § 1218.5(a) of the California Code of Civil Procedure.
The period or statute of limitations for commencing a contempt action based on failure to pay child, spousal, or family support is three (3) years from the date that the payment was due, under § 1218.5(b) thereof.
Contempt proceedings are initiated in California by completing and filing Judicial Council Form FL-410, Order To Show Cause and Affidavit For Contempt, and the required Judicial Council attachment, depending on the kind of underlying order issued.
Elements Of Contempt And
Burdens And Standards Of Proofs:
§ 1209.5 of the California Code of Civil Procedure states the elements of civil contempt based on failure to comply with a child support order as follows:
(1) valid underlying support order of a court of competent jurisdiction;
(2) obligor's (contemner's) knowledge of the order through:
(a) proof that the order was made, filed and served on the obligor parent; or
(b) proof that the obligor parent was present in court at the time the order was pronounced; and
(3) noncompliance of the support order, as prima facie evidence of a contempt of court.
These three (3) elements are also stated in In re Ivey (2000) 85 CA9th 793, 803, 102 CR 447, which further held that:
"If the petitioner proves those elements beyond a reasonable doubt the violation is established. He or she need go no further. To prevail on the affirmative defense of inability to comply with the support order, the contemnor (or contemner) must prove such inability by a preponderance of the evidence."
Ability to pay by the alleged obligor (contemner) was not considered an element of contempt because "the failure to pay constituting the contempt occurred shortly after the determination of ability to pay had been made (in the underlying orders)," in In re Ivey, supra, involving a father's failure to pay the mother's pendente lite attorney and expert fees in a criminal contempt action.
Thus, while the proponent (petitioner) of the contempt has the burden of proving the elements of contempt beyond a reasonable doubt (a criminal case standard of proof), the alleged contemner has the burden of proving inability to comply as an affirmative defense by a preponderance of the evidence (a civil case standard of proof).
Types Of Contempt Proceedings
And Sentences Imposed:
Contempt proceedings may be civil or criminal in nature. Civil contempt is governed by §§ 1209-1222 of the California Code of Civil Procedure; while criminal contempt for violation of penal statutes is prosecuted as a crime, under § 166 of the California Penal Code.
Contempt proceedings are considered "civil" in nature, if the contempt judgment coersively subjects the obligor or contemner to imprisonment only until he or she complies with the act(s) ordered by the court. So, a "civil" contemner may be incarcerated indefinitely pending compliance of the contempt order, under § 1218(c) of the California Code of Civil Procedure. But the civil contemner has the "ability to purge" by performing the act(s) ordered.
The lack of "ability to purge" characterizes contempt proceedings as "criminal" in nature. It is punitive, rather than coercive. And a criminal contempt judgment subjects the obligor or contemner to a sentence of fine not exceeding one thousand dollars ($1,000.00), or imprisonment not exceeding five (5) days or both for each count of contempt.
Thus, the potentially indefinite incarceration resulting from a civil contempt judgment arguably renders it more onerous, even more punitive than criminal contempt, under certain circumstances.
But the parties and even the court may not know what type of contempt proceedings they are in, until the particular judgment is pronounced or issued by the court.
The complexities and uncertainties of outcomes of contempt proceedings have relegated contempt as a tactical tool for exacting settlement from the defaulting parent or spouse.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Effects Of Bankruptcy Discharge
A debtor filed Chapter 7 bankruptcy petition through this Author, seeking to discharge secured and unsecured claims of creditors.
A Section 341(a) meeting of creditors (actually an examination under oath of the debtor by the appointed trustee, with creditors welcomed to attend, but not required to do so) was conducted by the bankruptcy trustee, attended by the debtor and this Author. All listed and scheduled creditors must receive at least 30 days' advanced notice of the creditors' meeting, under Bankruptcy Rule 4007(c).
After several months, the assigned Bankruptcy Judge issued a discharge order, discharging the debtor from all personal liability for any and all secured and unsecured claims listed in the bankruptcy petition schedules. Secured creditors can foreclose on the security interest or collateral in case of debtor's default.
Discharge Injunction Against Personal Liability Of Debtor:
The discharge order carries the discharge injunction of 11 U.S.C. §524(a)(2)-(3), "which operates against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any debt as a personal liability of the debtor, whether or not discharge of such debt is waived."
Indeed, the discharge injunction under aforesaid Bankruptcy Code section 524(a)(2)-(3) effectively prevents or terminates any collection action against the debtor that holds him personally liable, except for recourse against the security interest or collateral by a secured creditor.
State Court Cannot Modify Discharge Injunction Or Its Effects:
In McGhan v. Rutz (In re McGhan), 288 F3d 1172 (9th Cir. 2002), the Ninth Circuit held that "...the state court (where the civil action was filed to collect on the discharged debt) lacked authority to modify the bankruptcy court's orders discharging Rutz's claim and permanently enjoining Rutz from collecting on the debt."
Thus, the aforesaid discharge injunction is permanent and remains in effect indefinitely.
Moreover, the Ninth Circuit concluded that "it was an abuse of discretion for the bankruptcy court to decline to reopen McGhan's bankruptcy case..." (because it) was required to reopen the proceedings to protect its exclusive jurisdiction over the enforcement of its own orders."
Discharge Injunction Applied To Attachment Lien:
In a state action for collection against a client of this Author, the plaintiff jewelry company applied for ex parte and was granted a writ of attachment, attaching certain interests of the defendant, including her ownership interest in a condominium in Torrance, California.
After this Author had filed the defendant's answer to the complaint in the Superior Court action, the defendant decided to file Chapter 7 bankruptcy petition. She retained this Author to do so.
The filing of the Chapter 7 petition resulted in an automatic stay of the state action, pursuant to Bankruptcy Code section 362. Plaintiff, a listed and scheduled creditor, filed its motion for relief from automatic stay with the Bankruptcy Court. It was opposed by written Response by this Author, on behalf of the debtor in bankruptcy.
After oral arguments at the hearing on the motion for relief from automatic stay, Los Angeles Bankruptcy Judge Vincent P. Zurzolo denied the motion on December 11, 2008. So, Plaintiff was unable to lift the automatic stay and obtain a judgment in the state action.
On July 22, 2009, the Bankruptcy Court issued its order of discharge of debtor under 11 U.S.C. §727. The exception to the discharge is: "a creditor has a right to enforce a valid lien, such as a mortgage or security interest, against the debtor's property after the bankruptcy."
Attachment Lien Not Perfected By Judgment Before Discharge:
In Diamant v. Kasparian (In Re Southern California Plastics, Inc), 165 F.3d 1243, 1246 (9th Cir. 1999), the Ninth Circuit held that: "(a)ttachement liens are solely creatures of state statutory law...California law requires a judgment for perfection" (of an attachment lien).
It warned that: "(p)ermitting an allowance of claim (in the bankruptcy case) to substitute for a judgment perfecting an attachment lien undermines the rights and protections created by the California Legislature."
So, the failure of the Plaintiff discussed above to obtain a judgment in the state action to perfect its attachment lien before the discharge order of the Bankruptcy Court resulted in an unsecured claim discharged in the Chapter 7 bankruptcy petition.
State Court Declined To Apply Discharge Injunction And Proceeded With State Action:
This Author's first motion to dismiss the state action because of the discharge injunction was denied without prejudice by the Hon. Irving Shimer, who honestly stated at the hearing that he was not sure of his ruling. So, the state action proceeded to discovery despite the discharge order and permanent injunction.
But since the denial was without prejudice, this Author, on behalf of the defendant-debtor, filed her second motion to dismiss and argued that "(d)enial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial, citing Farber v. Bay View Terrace Homeowners Ass'n., 46 Cal. Rptr.3d. 425 (App. 4 Dist. 2006).
A new Los Angeles Superior Court Judge, the Hon. Michelle I. Rosenblatt, also declined to apply the discharge injunction of the Bankruptcy Code. And the state action for collection proceeded to judgment against the defendant-debtor already discharged in bankruptcy.
The consolation to the defendant-debtor who did not appeal the judgment, nor reopen the bankruptcy case is that: she is a retired widow over 65 years old and does not have sufficient equity in her ownership interest on the co-owned condominium, over and beyond her $150,000 homestead exemption from judgment execution.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
A Section 341(a) meeting of creditors (actually an examination under oath of the debtor by the appointed trustee, with creditors welcomed to attend, but not required to do so) was conducted by the bankruptcy trustee, attended by the debtor and this Author. All listed and scheduled creditors must receive at least 30 days' advanced notice of the creditors' meeting, under Bankruptcy Rule 4007(c).
After several months, the assigned Bankruptcy Judge issued a discharge order, discharging the debtor from all personal liability for any and all secured and unsecured claims listed in the bankruptcy petition schedules. Secured creditors can foreclose on the security interest or collateral in case of debtor's default.
Discharge Injunction Against Personal Liability Of Debtor:
The discharge order carries the discharge injunction of 11 U.S.C. §524(a)(2)-(3), "which operates against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any debt as a personal liability of the debtor, whether or not discharge of such debt is waived."
Indeed, the discharge injunction under aforesaid Bankruptcy Code section 524(a)(2)-(3) effectively prevents or terminates any collection action against the debtor that holds him personally liable, except for recourse against the security interest or collateral by a secured creditor.
State Court Cannot Modify Discharge Injunction Or Its Effects:
In McGhan v. Rutz (In re McGhan), 288 F3d 1172 (9th Cir. 2002), the Ninth Circuit held that "...the state court (where the civil action was filed to collect on the discharged debt) lacked authority to modify the bankruptcy court's orders discharging Rutz's claim and permanently enjoining Rutz from collecting on the debt."
Thus, the aforesaid discharge injunction is permanent and remains in effect indefinitely.
Moreover, the Ninth Circuit concluded that "it was an abuse of discretion for the bankruptcy court to decline to reopen McGhan's bankruptcy case..." (because it) was required to reopen the proceedings to protect its exclusive jurisdiction over the enforcement of its own orders."
Discharge Injunction Applied To Attachment Lien:
In a state action for collection against a client of this Author, the plaintiff jewelry company applied for ex parte and was granted a writ of attachment, attaching certain interests of the defendant, including her ownership interest in a condominium in Torrance, California.
After this Author had filed the defendant's answer to the complaint in the Superior Court action, the defendant decided to file Chapter 7 bankruptcy petition. She retained this Author to do so.
The filing of the Chapter 7 petition resulted in an automatic stay of the state action, pursuant to Bankruptcy Code section 362. Plaintiff, a listed and scheduled creditor, filed its motion for relief from automatic stay with the Bankruptcy Court. It was opposed by written Response by this Author, on behalf of the debtor in bankruptcy.
After oral arguments at the hearing on the motion for relief from automatic stay, Los Angeles Bankruptcy Judge Vincent P. Zurzolo denied the motion on December 11, 2008. So, Plaintiff was unable to lift the automatic stay and obtain a judgment in the state action.
On July 22, 2009, the Bankruptcy Court issued its order of discharge of debtor under 11 U.S.C. §727. The exception to the discharge is: "a creditor has a right to enforce a valid lien, such as a mortgage or security interest, against the debtor's property after the bankruptcy."
Attachment Lien Not Perfected By Judgment Before Discharge:
In Diamant v. Kasparian (In Re Southern California Plastics, Inc), 165 F.3d 1243, 1246 (9th Cir. 1999), the Ninth Circuit held that: "(a)ttachement liens are solely creatures of state statutory law...California law requires a judgment for perfection" (of an attachment lien).
It warned that: "(p)ermitting an allowance of claim (in the bankruptcy case) to substitute for a judgment perfecting an attachment lien undermines the rights and protections created by the California Legislature."
So, the failure of the Plaintiff discussed above to obtain a judgment in the state action to perfect its attachment lien before the discharge order of the Bankruptcy Court resulted in an unsecured claim discharged in the Chapter 7 bankruptcy petition.
State Court Declined To Apply Discharge Injunction And Proceeded With State Action:
This Author's first motion to dismiss the state action because of the discharge injunction was denied without prejudice by the Hon. Irving Shimer, who honestly stated at the hearing that he was not sure of his ruling. So, the state action proceeded to discovery despite the discharge order and permanent injunction.
But since the denial was without prejudice, this Author, on behalf of the defendant-debtor, filed her second motion to dismiss and argued that "(d)enial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial, citing Farber v. Bay View Terrace Homeowners Ass'n., 46 Cal. Rptr.3d. 425 (App. 4 Dist. 2006).
A new Los Angeles Superior Court Judge, the Hon. Michelle I. Rosenblatt, also declined to apply the discharge injunction of the Bankruptcy Code. And the state action for collection proceeded to judgment against the defendant-debtor already discharged in bankruptcy.
The consolation to the defendant-debtor who did not appeal the judgment, nor reopen the bankruptcy case is that: she is a retired widow over 65 years old and does not have sufficient equity in her ownership interest on the co-owned condominium, over and beyond her $150,000 homestead exemption from judgment execution.
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Caregiver Versus Personal Attendant - Wages and Benefits
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Are you a caregiver or a personal attendant who works in a private household or home? As a household worker either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?
If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.
A live-in employee as opposed to a live-out employee is subject to special work rules discussed below.
A caregiver or "care custodian" is defined by Section 15610.17 of the California Welfare and Institutions Code as:
"... an administrator or an employee of...public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff."
A "personal attendant" is not entitled to overtime compensation, unless:
(1.) he or she is a live-in employee; or
(2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or
(3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.
In these three instances, the household worker is no longer considered a "personal attendant" and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.
Personal Attendant As Defined In CA IWC Wage Order 15:
Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines "personal attendant" as follows:
"'Personal attendant' includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required."
Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on "companionship services," to wit:
"...(T)he term 'companionship services' shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked."
Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:
"The term 'companionship services' does not include services related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse."
Thus, the acceptable duties of a "personal attendant" involve activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A "personal attendant's" duties of "supervising" would include assistance in obtaining medical care, preparing meals, shopping for personal items or groceries, using a telephone, even managing money.
As long as any general housekeeping duties performed do not exceed 20% of the weekly working time spent by a "personal attendant," he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as "personal attendant" also excluded minimum wage in California.
This overtime compensation exemption also applies to "personal attendants" as well as other household workers such as caregivers, spending 20% or less of their working time doing general household work, who are employed by an agency and sent to private households to work.
Benefits Of Household Workers:
A. Minimum Wage:
The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and "personal attendants") but excluding legitimate independent contractors. The current California minimum wage is $8.00 per hour since January 1, 2008, a 6.7% increase over the previous $7.50 minimum wage.
There are several factors that determine whether a person is an independent contractor or not. But the primary factor is control by the employer of the means, manner and outcome of the job. An independent contractor runs his or her own household services business, has his or her tools and materials, and controls the manner and outcome of the job.
Independent contractors are not covered by minimum wage and overtime compensation statutes.
B. Overtime Pay:
Household workers who are not live-in employees, as well as "personal attendants" who do general household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.
Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California IWC Wage Order No. 15-2001 §3(A)-(B) (8 Cal Code Regs. § 11150(3)(A)-(B)).
Under federal law, 29 U.S.C. § 213(a)(15), "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is granted exemptions from minimum wage and overtime pay.
C. Other Benefits Of Household Workers:
1. Hours And Days Of Work:
A live-in employee is entitled to at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not exceed twelve (12) hours, except that: (a) the employee must have at least three (3) hours free of duty during the 12 hours span of work; and (b) the employee required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 §3(A).
Moreover, no live-in employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California IWC Wage Order No. 15-2001 §3(B).
2. Rest And Meal Periods:
Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California IWC Wage Order No. 15-2001 §12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California IWC Wage Order No. 15-2001 §11(A).
Otherwise, the employer shall pay the employee one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California IWC Wage Order No. 15-2001 §§12(B), 11(D). But "personal attendants" are not granted rest and meal periods.
3. Meal And Housing Deductions From Wages:
The employer may subtract meal and housing credits from the employee's paycheck if:
(a) the employee actually uses the meals and is provided with housing;
(b) meals and housing are used as salary to comply with the minimum wage; and
(c) the employee executes a voluntary, written agreement, crediting meals and housing towards minimum wage.
Meal credit may be deducted as follows: breakfast - $2.45; lunch - $3.35, and dinner - $4.50. Housing may also be credited at $31.75 per week for a room ($26.20 if shared). See California IWC Wage Order No. 15 - 2001 §10(C).
In summary, whether you are a caregiver or a "personal attendant" entitled to particular wages and benefits in California or in other states depends on whether the general household work you do exceeds 20% of your total work time.
(The Author, Roman P. Mosqueda, practices wage and hour law in California.
This article is not legal advice, and no attorney-client relationship is formed with the reader. For specific labor law issues, consult a competent attorney.)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
Are you a caregiver or a personal attendant who works in a private household or home? As a household worker either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?
If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.
A live-in employee as opposed to a live-out employee is subject to special work rules discussed below.
A caregiver or "care custodian" is defined by Section 15610.17 of the California Welfare and Institutions Code as:
"... an administrator or an employee of...public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff."
A "personal attendant" is not entitled to overtime compensation, unless:
(1.) he or she is a live-in employee; or
(2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or
(3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.
In these three instances, the household worker is no longer considered a "personal attendant" and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.
Personal Attendant As Defined In CA IWC Wage Order 15:
Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines "personal attendant" as follows:
"'Personal attendant' includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required."
Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on "companionship services," to wit:
"...(T)he term 'companionship services' shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked."
Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:
"The term 'companionship services' does not include services related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse."
Thus, the acceptable duties of a "personal attendant" involve activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A "personal attendant's" duties of "supervising" would include assistance in obtaining medical care, preparing meals, shopping for personal items or groceries, using a telephone, even managing money.
As long as any general housekeeping duties performed do not exceed 20% of the weekly working time spent by a "personal attendant," he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as "personal attendant" also excluded minimum wage in California.
This overtime compensation exemption also applies to "personal attendants" as well as other household workers such as caregivers, spending 20% or less of their working time doing general household work, who are employed by an agency and sent to private households to work.
Benefits Of Household Workers:
A. Minimum Wage:
The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and "personal attendants") but excluding legitimate independent contractors. The current California minimum wage is $8.00 per hour since January 1, 2008, a 6.7% increase over the previous $7.50 minimum wage.
There are several factors that determine whether a person is an independent contractor or not. But the primary factor is control by the employer of the means, manner and outcome of the job. An independent contractor runs his or her own household services business, has his or her tools and materials, and controls the manner and outcome of the job.
Independent contractors are not covered by minimum wage and overtime compensation statutes.
B. Overtime Pay:
Household workers who are not live-in employees, as well as "personal attendants" who do general household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.
Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California IWC Wage Order No. 15-2001 §3(A)-(B) (8 Cal Code Regs. § 11150(3)(A)-(B)).
Under federal law, 29 U.S.C. § 213(a)(15), "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is granted exemptions from minimum wage and overtime pay.
C. Other Benefits Of Household Workers:
1. Hours And Days Of Work:
A live-in employee is entitled to at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not exceed twelve (12) hours, except that: (a) the employee must have at least three (3) hours free of duty during the 12 hours span of work; and (b) the employee required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 §3(A).
Moreover, no live-in employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California IWC Wage Order No. 15-2001 §3(B).
2. Rest And Meal Periods:
Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California IWC Wage Order No. 15-2001 §12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California IWC Wage Order No. 15-2001 §11(A).
Otherwise, the employer shall pay the employee one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California IWC Wage Order No. 15-2001 §§12(B), 11(D). But "personal attendants" are not granted rest and meal periods.
3. Meal And Housing Deductions From Wages:
The employer may subtract meal and housing credits from the employee's paycheck if:
(a) the employee actually uses the meals and is provided with housing;
(b) meals and housing are used as salary to comply with the minimum wage; and
(c) the employee executes a voluntary, written agreement, crediting meals and housing towards minimum wage.
Meal credit may be deducted as follows: breakfast - $2.45; lunch - $3.35, and dinner - $4.50. Housing may also be credited at $31.75 per week for a room ($26.20 if shared). See California IWC Wage Order No. 15 - 2001 §10(C).
In summary, whether you are a caregiver or a "personal attendant" entitled to particular wages and benefits in California or in other states depends on whether the general household work you do exceeds 20% of your total work time.
(The Author, Roman P. Mosqueda, practices wage and hour law in California.
This article is not legal advice, and no attorney-client relationship is formed with the reader. For specific labor law issues, consult a competent attorney.)
Atty Roman P. Mosqueda is a graduate from Michigan Law School with both a Doctorate of Law and LLM. The Law Offices of Roman P. Mosqueda are a full service law firm that handles all types of cases such as divorce, immigration, bankruptcy, personal injury, and more. Call (213) 252 - 9481 for a free consultation today!
Offices are located at:
Los Angeles: 3055 Wilshire Blvd Suite 425., Los Angeles, CA 90010
(213)252-9481
Riverside: 3797 Tenth Street, Riverside, CA 92501
(951)683-6615
Long Beach: 1043 E.Anaheim St., Long Beach, CA 90813
(562)218-8600
Visit http://www.MosquedaLaw.com for more free articles written by Attorney Mosqueda and more information about his offices.
Article Source: http://EzineArticles.com/?expert=Roman_Mosqueda,_S._J.D.
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Roman P. Mosqueda
Graduated from Michigan Law School with both an LLM and SJD. For more information check out www.MosquedaLaw.com
