Under Rev & T C §62.3, as enacted by Stats 2012, ch 780, §1 (AB 1700–Butler), a change in ownership doesn’t include a transfer from one cotenant to another that takes effect on the death of one transferor cotenant.

The exclusion applies if the following conditions are met:

• Two cotenants own 100% of the property as tenants in common or joint tenants.
• The cotenants must be owners of record for the 1-year period immediately preceding the death of one of the cotenants.
• The property must have been the principal residence of both cotenants for the 1-year period immediately preceding the death of one of the cotenants.
• The transfer must occur due to the death of one of the cotenants, and the surviving cotenant must obtain a 100% ownership interest in the property.
• The surviving cotenant must sign an affidavit under penalty of perjury affirming that he or she continuously resided at the residence for the 1-year period immediately preceding the transferor cotenant’s death.

Section 62.3 (c) provides that the exclusion doesn’t apply “to any transfer of real property interests for which a separate exclusion applies.”

And you don’t have to be eligible for domestic partnership. According to the Assembly bill analysis, the cotenant transfer exclusion applies to any two people who live together, “including unmarried people, persons who are not registered domestic partners, siblings, friends, companions, or just roommates sharing the cost of housing.”

But you do need to take and hold title together for it to be fully effective. If you give a half-interest in your house to someone else, there will be a 50% reassessment unless another exclusion applies. But at least the other half won’t be reassessed when you die.

The California State Board of Equalization’s Letter to Assessors No. 2013/021 (Feb. 20, 2013) discusses the requirements for the exclusion in a question-and-answer format. For example, the letter states that gender doesn’t matter (Question 5) but marital status does (Question 11). The letter explains that the definition of principal residence depends on physical presence and intention.

Happy (house) hunting.

The implications of the exclusion are discussed in the April issue of CEB’s Estate Planning & California Probate Reporter. Also check out California Estate Planning §15.13A. Are you planning to become a Certified Specialist in Estate Planning, Trust and Probate Law? Prepare for the test with CEB’s Estate Planning Intensive Course.

Related CEB blog posts:

• The Complications of Same-Sex Marriage in a Time of Changing Options
• The Gift That Keeps on Giving: Property Tax Information on Parent-Child Transfers May Reveal Unreported Gifts
• Whither Windsor: What to Do About the Estate Tax Marital Deduction While the Court Considers DOMA

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Once a money judgment is entered against the debtor, the way in which it can be enforced and the extent to which it can be enforced against the debtor’s property is, for the most part, controlled by a comprehensive statutory scheme in the enforcement of judgments law (EJL)(CCP §§680.010-724.260).

Things move fast after judgment. As soon as the judgment is entered, the judgment creditor can enforce the judgment against the judgment debtor’s property. CCP §683.010. And time limits for the debtor to act affirmatively may be very short.

Here are 3 ways a debtor can respond when a creditor is poised to enforce a money judgment:

1. Argue that the judgment is not valid and enforceable. Check the timing: is the judgment being enforced between the date of entry by the court’s clerk (CCP §683.010) and 10 years thereafter (CCP §683.020), unless renewed under CCP §683.110?
2. Claim that service of pleadings and papers wasn’t proper. Check who was served: after judgment is entered, any notice, order, or other pleading required to be served on the judgment debtor must generally be served on the judgment debtor and not on his, her, or its attorney of record (CCP §684.020).
3. Attack the judgment. There are various possible ways to attack a judgment, including:

• Motion for New Trial
• Motion to Vacate and Enter Different Judgment
• Motion to Correct Clerical Error
• Motion for Relief From Default or Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect
• Appeal of Money Judgment

Each of these possible lines of attack is discussed in the chapter on representing the debtor after entry of a money judgment in CEB’s Debt Collection Practice in California, chapter 4A. This chapter also includes a very useful checklist that will give you an orderly procedure for analyzing your client’s rights and remedies when a judgment creditor is moving toward enforcement. Also check out CEB’s program Creditors’ Remedies and Debtors’ Rights, available On Demand.

Related CEB blog posts:

• Debt Collectors Gone Wild
• Is a Lien Leaning on Your Case?
• Get Attached! Using a Writ of Attachment in Construction Cases

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

CEB has great On Demand programs to help you improve your legal writing, including Smith on Legal Writing and Myron Moskovitz on Winning Appeals and Writs. Check out these and all other CEB programs at ceb.com.

Related CEB blog posts:

• 7 Ways to Get Sexism Out of Your Writing
• A Brief Browse on Briefs: Writing Tips from a Judge (part 1)
• Writing for the Online Reader

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

The first step in deciding whether to move for summary judgment is to write up an outline of your separate statement. This will create a roadmap for the discovery and legal research needed to make the motion and help you evaluate the chances of success of the motion.

Once you’ve finished your separate statement outline, here are 8 questions to ask yourself:

1. (Defendant) With respect to each asserted cause of action, can any necessary element be shown to be missing or can an affirmative defense be established, or is a punitive damages claim without merit?

2. (Plaintiff) With respect to each cause of action, has any affirmative defense been asserted, and can denials be overcome by showing that there are no triable issues of fact on each element of the cause of action?

3. (Defendant) Can you meet the burden of persuasion/production to negate essential elements of the plaintiff’s prima facie case?

4. (Plaintiff and Defendant) Can the parties agree to have the court adjudicate specific legal issues that do not dispose of an entire cause of action or defense in order to streamline a trial or make settlement more likely?

5. Have you weighed the likelihood of success against the risk of “tipping your hand” before trial?

6. Would other pretrial motions be more appropriate than a motion for summary judgment?

7. Have you confirmed that summary judgment is available in your case?

8. Can you file your motion within applicable time constraints?

Each of these questions is explained fully in CEB’s California Civil Procedure Before Trial, chap 36. And for a complete overview of all the considerations involved in moving for summary judgment or summary adjudication, you need CEB’s California Summary Judgment at your side.

Related CEB blog posts:

• The Mighty Separate Statement
• 10 Tips for Optimizing Your Opposition to a Summary Judgment Motion
• One Prong or Two? What Is a Defendant’s Summary Judgment Burden?

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Before you can evaluate whether or not to move for summary judgment or summary adjudication in a particular case, you need to have an understanding of the advantages and disadvantages of making such a motion generally.

The advantages include

• saving the expense of a trial,
• aiding in early case resolution,
• providing an additional opportunity to prevail,
• narrowing the issues for trial,
• compelling disclosure of the opponent’s evidence,
• facilitating trial preparation, and
• increasing the chances of settlement or voluntary dismissal of the case.

The disadvantages include

• adding significant expense to the litigation,
• facing a high risk of defeat,
• weakening settlement position after a loss on the motion,
• educating the opposition about your evidence and strategy,
• generating evidence the opposition may use for cross-examination at trial,
• facing de novo review on appeal, which may be more favorable to the opposition than the standard of review following trial, and
• subjecting decision to reconsideration by the court on its own motion.

Now it’s time to apply this general knowledge to your case. In our next blog post we’ll give you 8 specific questions to ask yourself about your own case to determine whether moving summary judgment is the right move to make.

For a complete overview of all the considerations involved in moving for summary judgment or summary adjudication, you need CEB’s California Summary Judgment at your side.

Related CEB blog posts:

• 10 Things to Check Before Moving for Summary Judgment
• One Prong or Two? What Is a Defendant’s Summary Judgment Burden?

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

On the A&E show, a villainous social worker and a group home director schemed to take children from the nearby Indian reservation, fabricating allegations of parental abuse or neglect, then skimming the premium paid to the foster parents. This made for a tension-filled story, but the show’s writers were apparently ignorant of the Indian Child Welfare Act of 1978 (ICWA) in exercising their poetic license.

During the 19th century, the Bureau of Indian Affairs founded boarding schools where Indian children were taught to become assimilated into mainstream American culture. By the early 1970s, as many as 60,000 Indian children were enrolled in such schools, and that, along with the fact that up to 90 percent of Indian children removed from their families were being adopted by non-Indian parents, became cause for concern in Congress.

In response, Congress enacted The Indian Child Welfare Act of 1978 (ICWA) (25 USC §§1901-1963)

[t]o protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.

Unlike other family law matters, which are specifically reserved to the states, ICWA sets federal standards for Indian child custody proceedings including adoption, termination of parental rights, and removal and foster care placement of Indian children residing within their own tribal reservation or otherwise meeting the definition of an “Indian child.”

The case currently before the Supreme Court involves an engaged couple whose relationship deteriorated after the woman became pregnant. The mother arranged for an open adoption with a South Carolina couple, but the father, a member of the Cherokee Nation, opposed it. Following a family court trial, the over two-year-old child was transferred from her adoptive parents to the biological father she had never seen. The South Carolina Supreme Court affirmed the lower court’s decision. Adoptive Couple v Baby Girl (SC 2012) 731 SE2d 550.

This isn’t going to be an easy decision for the Supreme Court. As NPR reported, Justice Kennedy observed that “[w]hat we have here is a question of a federal statute which…displaces the ordinary best interest [of the child] determinations of the state courts.”

We’ll see how Solomonian the Court can be when it decides this case. To understand how ICWA applies to juvenile dependency and adoption cases, turn to CEB’s California Juvenile Dependency Practice, chap 9, and California Child Custody Litigation and Practice, §§5.32-5.37.

Other CEB blog posts you may find interesting:

• If We Die, Where Will the Kids Go?
• Juvenile Dependency Primer
• So How Is this Custody Arrangement Going to Work? 4 Things to Go into Any Joint Custody Order

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

The Judicial Council of California establishes rules of court and forms that apply throughout the state. In some instances, the Judicial Council has preempted local rules as to the “form and format of papers to be filed in the trial courts,”  but preemption is not universal.

This means that every attorney should check and follow local rules and forms. Not complying with local rules could result in sanctions or contempt. Thankfully, the Judicial Council has made it much easier to find and follow local rules by posting them by county on their website.

So, when you’re handling an unfamiliar matter or proceeding in a new venue first check the Judicial Council rules and then review the local rules to make sure you comply with all possible requirements.

Once you’ve identified the relevant rules, don’t forget to check for necessary local forms. For example, in Alameda County, using ADR allows you to delay your case management conference if you file the proper local stipulation with the court.

Unfortunately, there’s no regularly updated resource for local forms, so you’ll have to confirm that you have the correct form from the court itself. Start with the court’s website to find local forms and then confirm by calling the court if you’re not sure the website is up-to-date; sadly, with resources tight, some court’s websites aren’t reliably updated.

Don’t lose the trees for looking at the forest: keep an eye on sometimes critical local rules and forms because missing them could put your client at a disadvantage and leave you looking like you didn’t do your homework.

For everything you need to know about filing court papers, turn to CEB’s California Civil Procedure Before Trial, chapter 11, which reminds you when to check for local rules and forms.

Other CEB blog posts you may find interesting:

• Expertise by Association
• Should You Go Solo?
• Discovery Outside the Rules
• Need a Change of Venue?

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

An exit interview scheduled after notifying the employee of the termination decision—preferably with a termination letter—can be an important deterrent to a wrongful termination action. Allowing the employee to discuss the termination with a company representative removed from the situation can give the employee the satisfaction of being “heard” and thereby reduce the risk of a lawsuit.

Employers who conduct exit interviews should consider the following guidelines:

1. Have the interview conducted by someone other than the employee’s immediate supervisor, preferably someone unconnected to the termination decision, such as a human resources representative.
2. The person conducting the interview should prepare for the meeting by reviewing the employee’s personnel file, including all documents pertaining to the termination.
3. The person conducting the interview should describe the employee’s benefits, e.g., COBRA, vested pension or IRC 401(k) benefits, severance pay.
4. The person conducting the interview should explain the type of reference that will be given.
5. If the employee has signed an agreement promising not to disclose confidential company information or otherwise unfairly compete with the company, remind him or her of continuing obligations; if there’s no such agreement, and the employee has had access to proprietary information, prepare an appropriate agreement for signature by the employee.
6. Deliver the final paycheck, including payment for all accrued unused vacation time.
7. Give the individual an opportunity to comment on the job, the company, the supervisor, or the termination.
8. Avoid any remarks that could be construed as discriminatory, such as comments related to age, race, sex, national origin, or disability.
9. Conduct the interview in a polite, businesslike manner. Avoid expressing any opinion about the termination.
10. Document all matters discussed with the employee, including any comments or opinions expressed by the employee about the termination.
11. Avoid any action that might create the impression in other employees that the terminated employee was untrustworthy. For example, allow the employee to collect his or her personal belongings in private, not under the gaze of a security guard or supervisor. Allow the employee to leave the place of employment unescorted.
12. If you are using a separation agreement, explain its terms and give the employee a written copy. Explain the time period for signing the agreement. If the employee is age 40 or older, make sure the agreement conforms to the requirements of the Older Workers Benefit Protection Act (OWBPA) (Pub L 101-433, 104 Stat 978).

Excellent advice for the entire discipline and termination process is in CEB’s Advising California Employers and Employees, chap 17. For an exit interview guide, check out Drafting Employment Documents for California Employers, chap 7.

Other CEB blog posts you may be interested in:

• Pay Me Back: Every Employer Should Have an Expense Reimbursement Policy
• Employers: Keep Clear of Social Media Landmines, Part 1
• Gagging Employees

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

A trade secret audit is a proactive, dynamic analysis of a company’s proprietary assets and how those assets are protected. An audit should including the following steps:

1. Assemble an audit team. The audit team should consist of outside or inside counsel and appropriate business teams. Audits should be assisted by someone who is experienced with computer fraud, network security issues, and computer forensics, including managing and protecting electronically stored data. And don’t forget human resources professionals.
2. Determine the scope of the audit.  The audit team must identify the company’s overall objectives related to its trade secrets and what levels of protection the company seeks. The audit team should further determine whether patent or other intellectual property attorneys should be consulted to tailor the most appropriate kind of protection for the company’s particular intellectual property assets.
3. Identify potential trade secrets. The audit team should identify the company’s intellectual property assets that are valuable and worth protecting, as well as any existing security protections in place to protect those assets. This process should include identifying risk areas where information assets may be susceptible to loss.
4. Review current policies and procedures. Companies often have some policies or procedures in place to help protect their trade secrets, but many are inadequate, difficult to implement or understand, or ineffective. Review case decisions on whether particular company measures taken to protect trade secrets were legally adequate or inadequate.
5. Review current physical and electronic security measures. The audit team should review the company’s physical and computer data security practices and make recommendations to help ensure adequate security and prevent theft. This often includes recommendations about facility access, security layout, computer access, network system layout, and protection of electronic data.
6. Account for technological advances. Technology changes rapidly, and companies need to keep up with the latest developments. For example, moving trade secrets into the cloud raises numerous legal, security, and business concerns.
7. Review current protective agreements. Companies must monitor their current protective agreements regularly to keep them up to date on current technologies and the law. The audit team should review the company’s various protective agreements (e.g., employee confidentiality agreements, blogging policies, and technology use agreements) and third party nondisclosure agreements to ensure that they safeguard the company’s trade secrets appropriately.

The importance of a trade secret audit to ensure that trade secrets are adequately protected cannot be overemphasized—given the stakes, we’re likely to continue to see high-profile cases of alleged trade secret theft.

You’ll find a sample trade secret audit checklist along with everything you need to know about protecting trade secrets in CEB’s Trade Secrets Practice in California.

Related CEB blog posts:

• Clashing Concepts: Trade Secrets and Social Media Networking
• Protecting Your Great Idea
• 11 Tips for Preempting Business Pirates

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

In addition to the information legally required to be given to the employee on termination, employers should consider preparing a termination letter with the following information:

1. Notice that the action was a termination or discharge.

2. The date of the termination.

3. The reasons for the termination. The description should give the employer a realistic chance of proving the basis for termination, and provide the employee adequate notice of the reasons for termination (e.g., “the employee failed to meet production standards”).

• Don’t be too specific (e.g., “the employee failed to meet production quota of 18 widgets per hour three days in a row”), because this may create an insurmountable proof standard for the employer in litigation.
• Don’t be too vague (e.g., “the employee was terminated for poor performance”), because this may unfairly fail to give the employee notice of the reasons for termination, and cast doubt on the employer’s stated reasons for termination.

4. The dates and subject matter of prior warnings. This information can be an effective deterrent to wrongful termination claims, particularly when documentary evidence supports the prior discipline.

5. Benefits to which the employee is entitled. These may include the right under COBRA to purchase continued health insurance coverage under the employer’s group plan and information on unemployment benefits.

6. Circumstances under which the employee had access to a second review or appeal of the termination. It may be of strategic benefit to the employer to agree to characterize the employee’s departure as a layoff, resignation, or retirement. State also whether the employee availed him- or herself of the right of appeal.

7. The employee’s last day of work. State what company property must be returned by that date.

8. The date, time, and place for an “exit interview.”

There’s no law that requires an employer to provide a termination letter identifying the reason(s) for the termination. Some employers don’t want to do one because of concerns that they may be used as evidence to support a wrongful termination claim. Others don’t want to use the resources to submit every letter to a human resources representative or employment law counsel for drafting or review.

But, from a purely legal perspective, well-written termination letters can be an important deterrent to wrongful termination claims. If they’re done correctly, they can provide persuasive contemporaneous support for the termination and reduce the risk of litigation.

For all you need to know about discipline and terminations, turn to CEB’s Advising California Employers and Employees, chap 17. A sample termination letter—along with many other sample employment documents and practical advice—is in CEB’s Drafting Employment Documents for California Employers.

Related CEB blog posts:

• 6 Steps to Evaluate a Wrongful Termination Case
• An Overall Victory for Employers in Mixed-Motives Cases
• How Long to Hang On to Those Personnel Records

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.