California Law: Should I Get a Restraining Order?

Question: I have a neighbor who has been harassing me for two years. Every time I call the police, they tell me there is nothing they can do without more proof. They advised me to get a restraining order. What should I do?

Answer: If a police officer or sheriff's deputy advises you to get a restraining order, you would do well to heed the advice. Neighbor-to-neighbor disputes are very difficult on law enforcement officers because the officers often have little evidence to go on. A harassment restraining order is a court order signed by a judge that gives law enforcement officers very clear instructions regarding the prohibited activities. A court order gives law enforcement officers and objective standard to uphold, which is much easier to enforce than subjective complaints.

You can obtain a civil harassment restraining if you are being harassed by someone who does not live with you such as a friend, neighbor or even a stranger. If someone lives with you or if you have a "domestic relationship" with the person who is harassing you, then you should obtain a domestic violence restraining order.

A civil harassment order can last up to three years. The court will charge a filing fee, but the court can waive this fee based on your ability to pay or if the abuser has caused physical harm to you.

You may qualify for a civil harassment order if the harasser has intentionally commits a series of acts (more than one) which are frightening, annoying or harassing, and which have caused you "substantial emotional distress". The harasser does not have to be related to you in any way, but you must be able to identify the person and find him or her to serve the papers.

A civil harassment order can order the harasser:

• to stay away from the victim, the victim's home, school, work or children's school;
• not to telephone or contact the victim;
• not to frighten, intimidate, annoy or harass the victim;
• not to threaten or make any physical contact with the victim;
• not to keep the victim under surveillance or follow the victim; and
• not to block the victim's movement in public places.

It can also protect the victim's family or anyone else in the home from the harassment and can order the person who lost the case (either the harasser or the victim) to pay the other person's court costs and attorney's fees.

If you have been the victim of harassment, please contact us if you need further assistance.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Enforcing Criminal Restitution Orders in California

Question: After a thief pled guilty to embezzling a large sum of money from me, the judge sentenced the defendant to prison and ordered him to pay me restitution. The defendant is now out of prison and has not repaid me the money. What can I do to collect the money owed to me?

Answer: Prosecutors often do not have the resources to collect on restitution orders, so the beneficiary of the restitution order should consider retaining private counsel to collect the amount owed. The California Judicial Council has designed a set of standardized questions the victim can use to gather information regarding the defendant's assets. See Judicial Council Form CR-200, Form Interrogatories - Crime Victim Restitution. The victim may serve the interrogatories once the restitution has remained unpaid for more than one year.

A restitution order is enforceable the same way as as a civil judgment. The victim may use all the same methods as the judgment creditor in a civil matter and many of these methods were discussed in a previous article. Common methods of enforcing restitution orders include wage garnishments, bank account levies and judgment debtor examinations. Some court clerks do not know how to issue a writ of execution based on a restitution order in a criminal case, so it may be necessary to obtain an order directing the clerk to issue the writ of execution and other court documents related to the judgment collection process.

Hiring a private attorney to collect the restitution order is a continuation of the victim's right restitution. Therefore, the victim can also recover attorney's fees incurred to recover restitution. An experienced attorney with collection experience can more aggressively and efficiently than an overworked prosecutor or an unrepresented crime victim.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Better Business Bureau Warns Against Online Scam

Cut the line on phishing scams

Phishing is an e-mail in which fraudsters attempt to convince consumers to reveal personal information, such as their credit-card account numbers, checking account information, Social Security numbers and banking account passwords through official-looking fake websites or in a reply e-mail.

Phishing doesn't use a rod and reel; rather it uses the Internet and the intent is to catch consumers who are not aware of this scam.

Phishers will sail under false colors. They deliberately misrepresent themselves, just to get their hooks into consumers' personal and financial information. If consumers aren't careful, they could find themselves the catch of the day. Remember, only phonies phish for info.

Consumers can best protect themselves by following one simple rule: When in doubt, delete.

Many financial institutions might use e-mail to communicate with customers and direct them to their websites where the customers may be asked to enter personal information as part of registering for a service, such as online banking or accessing account information. However, if the e-mail wasn't initiated in response to an action by the consumer, it's a good idea to go directly to the organization's website by entering the website address (URL) rather than linking to it from an e-mail.

Here are a few ideas on how to avoid getting lured into a phishing scam:

-- Treat unsolicited e-mail requests for financial information or other personal data with suspicion. Unsolicited means the e-mail wasn't initiated in response to an action by the consumer. Do not reply to the unsolicited e-mail or respond by clicking on a link within the unsolicited e-mail message.

-- Contact the actual business that supposedly sent the e-mail to verify if it is genuine.

-- Only enter personal information on a secure website that you know to be legitimate.

-- Update anti-virus software and security patches to system software regularly.

-- Be cautious. Check your monthly statements to verify all transactions. Notify your bank immediately of any erroneous or suspicious transactions.

Health Savings Accounts for California Business Owners

Question: I just formed a new corporation. If I elect to have an S corp and hire my spouse to do a legitimate job, can I have an accountable plan to reimburse her for our family's medical expenses (not just insurance premiums) and deduct these as expenses on the corporate return?

Answer: No, but you might consider establishing a Health Savings Account ("HSA") for yourself.

When you file your taxes each year, all of the money you have deposited into your own HSA will be tax-deductible. When you visit a physician, you pay with tax-free money from your savings account at the discounted PPO rate.

When you need to purchase prescriptions, you pay with tax-free money from your savings account at the discounted PPO rate.

Some medical expenses not covered under traditional health plans are covered under the HSA. (dental work, vision care, lasik, braces, maternity, etc.)

By funding the HSA account every year, you will reduce your taxes each year plus, more importantly, it will give you a larger and larger cushion against unexpected "catastrophic" type claims in the future.

Dipping into your HSA savings account is NOT the same as dipping into your pockets - your HSA is the functional equivalent of "insurance coverage for the small bills" - what you don't have to use is yours to keep - which is dramatically different than paying an insurance company a few thousand dollars a year to do virtually the same thing...insure the "small" bills. Pay yourself not the insurance company.

HSA funds can be used to pay any provider with no network restrictions.

About the Author: John Leslie, a certified Quickbooks Pro Advisor, has 20 years of experience in the tax field. Mr. Leslie is a member of the Lakeside Chamber of Commerce, has been involved in the San Diego business community since 1986 and has lived in the area for over 40 years. His strong ties to the community have shaped the client-business philosophy for which IRSTAXHELP.COM is known.

Court to City of San Diego: Stop Discriminating Against Churches

In December 2005, I wrote about an article covering claims by a local pastor that the City of San Diego discriminated against churches by charging higher rental rates for use of City facilities than what it charges other nonprofit organizations. The Canyon Ridge Baptist Church filed a lawsuit to force the City to rescind what it alleges to be discriminatory rental policies. The Church rents a community center from the City for its Sunday services. In a recently published article, the San Diego Union-Tribune is reporting that the Church is winning the lawsuit

After reviewing media reports and court records, it was clear that the City charges the Church rates that are as much as 22 times the rates charged to other nonprofit organizations. The Union-Tribune reports that a federal judge issued an injunction temporarily that prohibits the City from the collecting the high rates. Instead of paying up to $818 per week that the City might charge to a private business, the Church will pay $208 like other nonprofit groups.

The lawsuit is apparently close to settlement, which will most likely result in reimbursement of rent to the Church and the City will most likely also have to pay the legal fees incurred by the Church. When I first brought this to the attention of Donna Frye, who represents the district where the Church is located, she declined to do anything about it.

When I contacted Frye's office, she refused to comment because the matter was in litigation, instead of asking to have this issue placed on the Council agenda to discuss changing the rental policies. It was never clear if Councilmember Frye opposed or supported the policies in question, but she refused to take a public stance and I find that very disturbing. I think Frye and the other members of the San Diego City Council owe it to the people they represent to stand up against City policies that are clearly discriminatory instead of hiding behind the questionable advice it received from the City Attorney's officen in this matter.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.