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Hans Albert Gillinger

Hans Gillinger’s Answers

77 total


  • How do I go about legally obtaining personal property that belongs to me and is being held by another person?

    My ex-boyfriend refuses to return an Apple MacBook laptop (worth about $1000), a small collection of about 15-20 books (all loaned to him by me during our relationship), as well as some jewelry of mine that I had left with him before the breakup. ...

    Hans’s Answer

    I agree with the first attorney's response, and expand slightly on your options for relief.

    You can either seek to recover your property (an action in Replevin), or damages that equal the either the total value of your property or the cost to you from disposession of your property (an action for trespass, trover, or conversion). It sounds like you want your things back, so you will need to seek a writ of replevin

    Replevin is a long-standing summary process, by which a man out of whose possession goods have been taken may obtain their return until the right to the goods can be determined by a court of law.

    Replevin arose out of the need of society to discourage resort to self help and, although for a long time primarily used in disputes about distress between landlord and tenant, it was gradually expanded to cover all cases of allegedly wrongful dispossession.

    "(I)f the plaintiff wanted return of his chattel in specie, replevin was a more appropriate remedy than either trespass or trover in which only damages could be recovered. Restoration of the property is, of course, only provisional, pending determination of title."

    Good luck!

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  • If the a ada acknowledges on the record that they didnt have a arrest or search and seizure warrant to arrest what can be the

    If a ada acknowledges that their wasnt no arrest or search n seizure warrant and now the defense put a motion in for the defendant and it was granted by the judge for a suppressing hearing what can be the outcome can anyone tell me from past expe...

    Hans’s Answer

    I agree with the first attorney's answer, and note the following in follow-up to his response that may clarify things for you. Specifically, please note the six major exceptions to the warrant to conduct a search discussed below.

    A search incident to lawful arrest does not require issuance of a warrant. In other words, if someone is lawfully arrested, the police may search her person and any area surrounding the person that is within reach (within his or her “wingspan”). See Chimel v. California, 395 U.S. 752 (1969). The rationale is that the search is permissible as a protective measure.

    No warrant is required to seize evidence in plain view if the police are legitimately in the location from which the evidence can be viewed. For example, an officer cannot illegally enter a suspect’s back yard and then use the plain view exception to seize drugs. But, if on the premises to serve a warrant duly issued to search for marijuana plants, these additional drugs can rightly be seized if in plain view.

    If consent is given by a person reasonably believed by an officer to have authority to give such consent, no warrant is required for a search or seizure. So, if a suspect’s "significant other" provides police with a key to the suspect’s apartment, and police reasonably believe that she lives there, the search will not violate suspect’s Fourth Amendment rights even if she did not live there and even if she, in fact, lacked authority to consent, . See Illinois v. Rodriguez, 497 U.S. 177 (1990).

    Police may stop a suspect so long as there is a reasonable suspicion of a criminal act. The evidence necessary for “reasonable suspicion” here is something beyond mere suspicion, but is less than the level required for probable cause. If there is reason to believe that the person may be armed and dangerous, the police can also frisk the suspect. See Terry v. Ohio, 392 U.S. 1 (1968).

    Because vehicles are obviously highly mobile, a warrant is not required to search vehicles if police have probable cause to believe the vehicle contains evidence of a crime, the instrumentalities of crime, contraband, or the fruits of a crime. Although commonly referred to as the “automobile exception,” this rule applies to any vehicle, including boats. While in some ways, it is quite a broad exception, this rule limits the ability to search those areas which might contain evidence of the type suspected to be present. In other words, if police suspect that the occupant of a boat is smuggling people across the border, searching a small tackle box on board would not be permissible. However, if they were looking for drugs, they could search the tackle box. The rationale is that, if an officer has to take the time to obtain a warrant, the vehicle might be out of reach before the warrant can be issued and executed. See Carroll v. United States, 267 US. 132 (1925).

    Emergencies/hot pursuit is the sixth exception to the warrant requirement. The rationale here is similar to the automobile exception. Evidence that can be easily moved, destroyed or otherwise made to disappear before a warrant can be issued may be seized without a warrant. Furthermore, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue pursuit, even if the suspect is in no way connected with the property owner.

    Good luck!

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  • What recourse do we have when the statue of limitation runs out.

    We had some vehicals stolen in 2010. The vehicals were scraped whole at scrap yards with false bills of sale. My husband wanted to sue the scrap yards for accepting vehicals without titles. (The police had vedio tape of the vehicals entering the s...

    Hans’s Answer

    The first attorney's response is spot on, and I note only a small further observation that may help you.

    Although the two-year civil tort statute of limitations (SOL) ran by the time you found an attorney that could see that your fact pattern suggests civil tort liability on the part of the scrap yard, your description also notes that "numerous" attorneys had given you conflicting (and likely bad) advice. If a reasonably competent attorney would have spotted the tort claim(s) against the scrap yard, you should consider a malpractice action against the "numerous" attorneys to the extent they gave you bad advice PRIOR to the running of the 2-year SOL. Check your state's SOL for malpractice claims to avoid again being time-barred. This is an expensive and time-consuming process, and you should consider the value of the total recovery possible (the amount of $ loss due to scrap yard's actions) in deciding whether to pursue such an action. You will need to establish that these attorneys were your attorneys and that their statements are considered legal advice under your state's laws to prevail in such an action.

    Good luck!

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  • Does a police officer have to take inventory of your car even though you tell them you don't want them to?

    My friend was being arrested the officer said he was going to take inventory of the car, my friend told him it was not ok to do that the officer ignored him and started doing inventory, my friend saw the officer looking under the seat and all over...

    Hans’s Answer

    I agree with the first attorney's answer, and encourage your friend to consult a local criminal defense attorney. I note some basics regarding inventory searches for your information only, and not as legal advice.

    An inventory search is the routine inventory of an impounded vehicle. The Supreme Court has ruled that evidence of a crime uncovered during such a search can be used for prosecution. A warrant is not required because the state, in legally impounding the vehicle, bears legal liability for the contents of the vehicle. To protect itself against law suits, the state must have a written list of these contents. Under the plain view doctrine, because police conducting the inventory have a legitimate reason to look inside the car, it is not reasonable for them to close their eyes to evidence of crime.

    An inventory search must follow established departmental policies and satisfy the objectives of preserving the property of the defendant, shielding the police against claims of lost property, and protecting the police and others from any dangerous objects. Although incriminating evidence may be the result of an inventory search, the discovery of such evidence must not be its purpose. An inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence

    Good luck to you and your friend!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • How could I fight for my son to gain the right to play football this upcoming year?

    He played football for 1 yr. He is 17 and he was retained 1 year in high school. He is a junior in high school. They are labeling him as ineligible to play this upcoming year.

    Hans’s Answer

    The California Interscholastic Federation (CIF) is the governing body of high school athletics, affirms that participation in interscholastic athletics is a privilege. The privilege of participation in interscholastic athletics is available to students in public or private schools who meet the democratically established standards of qualification as set forth by the CIF Federated Council.

    Scholastic Eligibility
    In order to be eligible, any student entering from the eighth grade into a CIF four-year high school, a junior high or a junior high must have achieved a 2.0 grade-point average on a 4.0 scale in enrolled courses at the conclusion of the previous grading period. The governing board of each school district, private school, or parochial school may adopt, as part of its policy, provisions that would allow a student who does not achieve the above requirement in the previous grading period to remain eligible to participate in interscholastic athletics during a probationary period.

    Minimum Requirements
    A student is scholastically eligible if:
    a. The student is currently enrolled in at least 20 semester credits of work;
    b. The student was passing in the equivalent of at least 20 semester credits of work at the completion of the most recent grading period;
    c. The student is maintaining minimum progress, as determined by the principal, toward meeting the governing board prescribed high school graduation requirements.
    In the North Coast Section, minimum progress toward graduation is defined as:
    1) The student has earned credits at a rate of no less than the equivalent of 20 semester credits of work behind normal progress at any time prior to graduation, AND
    2) The student is no more than two courses behind normal progress in successfully completing specific courses required for HS graduation as prescribed by the governing board.
    d. The student has maintained during the previous grading period a minimum 2.0 grade-point average, on a 4.0 scale, in all enrolled courses.

    Your local school district or your son's high school may have additional requirements for eligibility for athletics program participation, so you should check your district's board policies and the parent/student handbook issued by your son's high school. The following is an example of how district rules can change CIF requirements.
    Probationary Period
    The governing board of each school district may adopt, as part of its policy, provisions that would allow a student who does not achieve the above requirement in the previous grading period to remain eligible to participate in interscholastic athletics during a probationary
    period. The probationary period shall not exceed one semester in length, but may be for a shorter period of time, as determined by the governing board of the school district. A student who does not meet the above requirements during the probationary period shall not be allowed to participate in interscholastic athletics in the subsequent grading period. For the purpose of determining the maximum length of a semester, the measure shall be the maximum number of days comprising a semester as used in that school during the year in question.

    Good luck!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • Is it legal to share information acquired from online services to attack the character of a person?

    An individual utilized one or more online services to acquire public information and website registration information on me. I am not sure if the services were paid or proprietary to the individual's employer. The information acquired by this p...

    Hans’s Answer

    Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.
    Typically, the elements of a cause of action for defamation include:
    1.A false and defamatory statement concerning another;
    2.The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
    3.If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
    4.Damage to the plaintiff.
    In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print.
    Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.
    Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:
    •Attacks on a person's professional character or standing;
    •Allegations that an unmarried person is unchaste;
    •Allegations that a person is infected with a sexually transmitted disease;
    •Allegations that the person has committed a crime of moral turpitude;
    While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which modify the common law. They may change the elements of the cause of action, limit when an action may be filed, or modify the defenses to an action for defamation. Some may even require that the defendant be given an opportunity to apologize before the plaintiff can seek non-economic damages.
    The most important defense to an action for defamation is "truth", which is an absolute defense to an action for defamation.
    Another defense to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.
    A defense recognized in most jurisdictions is "opinion". If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context - that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.
    A defense similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.
    A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community, in order to diminish any claim for damages resulting from the defamatory statements.
    A defendant who transmitted a message without awareness of its content may raise the defense of "innocent dissemination". For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter.

    Good luck!

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  • A private school has ask my 6 yr old child not to return. We would like the 2nd semester tution back.

    They say our child broke some of their standards. When this came to out attention we where told that he needed to seek out counseling in order to come back. We did immediately. He was not allowed back. After meeting with the administration it...

    Hans’s Answer

    I agree with the other attorney's response, and your rights with respect to your private school are informed by contract - the enrollment/tuition contract for the current year. Typically, private schools will write these contracts such that you have an obligation to pay for the entire year even if you move or the school asks him to leave. Often, private schools will offer tuition insurance (or even require that parents purchase such a policy), so you should check to see if you have coverage for the balance of the tuition due under the contract.

    Schools are different and they need to count on the number of students to hire the right number of teachers, to ensure sufficient seats for each student, to ensure a sufficient number of sections per grade, etc. It is because of these long-term obligations that are created for the school based on enrollment numbers that private schools simply cannot afford to lose students mid-year and refund tuition. Please do consider purchasing a policy of tuition insurance next time if you did not do so in this instance.

    Good luck!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • Is it illegeal for a child to experience religious initimdation in the classroom? Within a public school first grade classroom.

    The prinicpal was contacted in writing about this matter on January 23, 2013. No action has taken place yet.

    Hans’s Answer

    Your question implicates the Free Exercise Clause of the First Amendment.
    The U.S. Constitution’s Establishment Clause imposes duties on public employers that may appear to contradict the Free Exercise Clause. The First Amendment’s “establishment of religion clause” prohibits the government from enacting a law or sponsoring an activity that has the purpose of advancing religion. In Lemon v. Kurtzman, the U.S. Supreme Court developed the following three-prong test to determine whether an activity violates the Establishment Clause: 1) Does the law or activity have a secular purpose? 2) Does the activity’s principal or primary effect neither advance nor inhibit religion? 3) Does the activity foster excessive entanglement with religion? If a public employer’s activity satisfies all three prongs of this test, the activity does not violate the establishment clause.
    Prayer in public schools implicates both the Establishment and Free Exercise Clauses of the First Amendment. Typically, an attempt to pray at school by either a pupil or teacher is frustrated by actions or policies of the public school attempting to regulate the school environment. Teachers and students enjoy First Amendment rights at school. This has been true and recognized by courts for over eighty years. Courts balance the individual’s right to freedom of expression of religious speech against the Establishment Clause. On the one hand, the First Amendment protects private religious expression. When a school permits the use of public facilities by groups unrelated to curriculum, it may not deny access to certain groups based on the religious content of their speech. The U.S. Supreme Court struck down a university policy preventing student groups from using school facilities for religious worship and discussion as an unconstitutional restriction of student religious expression. On the other hand, the Establishment Clause is generally violated where prayer appears to be sanctioned or endorsed by the public school. The U.S. Supreme Court found that student-delivered prayer at high school football games was unconstitutional. The high court similarly found clergy-delivered prayer at a high school graduation was unconstitutional. The holding of a moment of silence for “meditation or voluntary prayer” was also found unconstitutional. The U.S. Supreme Court has upheld reasonable content-neutral restrictions on protected expression in public schools so long as the restrictions serve a legitimate governmental purpose and leave open adequate other places for speech as alternatives. When the restrictions are content-based, however, it is the same both inside and outside the public school setting; content-based restrictions must survive strict scrutiny, the most exacting and difficult constitutional test used by courts considering a governmental limitation to a fundamental right.
    Generally, the Court’s apply the Lemon test to determine whether a public school violated the Establishment Clause. The public school violates the Establishment Clause where “an objective observer” would consider the school’s action “a state endorsement of prayer in public schools.” The Establishment Clause is generally offended where prayer occurs at school-sanctioned events or in the classroom. Where prayer occurs on school grounds but is private and student initiated, the Establishment Clause is typically not violated. When school policy requires prayer or school prayer is public, the U.S. Supreme Court generally finds it unconstitutional; when school prayer is private, consensual, and occurs outside of the classroom, the U.S. Supreme Court generally finds it protected expression.
    Good luck!
    Hans Gillinger
    Of Counsel
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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  • Looking for a Special Education attorney to attend an IEP meeting?

    Looking for an attorney to attend an IEP meeting and dealing with SDC program.

    Hans’s Answer

    A parent is powerful advocate for their child when the parent reaches out for help navigating what is a very difficult process for parents. You have many choices, and I set forth the following about me for your consideration.

    HANS GILLINGER specializes in representing students with disabilities with respect to their educational needs and related civil rights litigation.

    In 2004 Hans began advocating for the special education rights of children and young adults while in law school. Graduating in 2005, he began at a law firm in parent practice. While serving his special needs clients, he performed extensive legal research and analysis of the Individuals with Disabilities Education Act (IDEA), the California Education Code, and implementing federal and state law regulations. During these first years of his practice, he represented clients’ interests at individual education program (IEP) meetings and through due process from filing for due process, through mediation, to the due process hearing.

    Uniquely, Hans brings this prior parent practice experience together with the years he spent representing school districts and Special Education Local Plan Areas (SELPA) representing the interests of the institutions on special education matters. Hans comes to The Law Offices of Bonnie Z. Yates from the prestigious defense firm Burke, Williams & Sorensen that has served the needs of California public entities and joint power authorities since 1927. Knowing how school districts and their counsel evaluate cases, the reasons justifying a higher settlement offer, and the situations that compel school districts to fight as well as those that inspire cooperation with parents, enables him to obtain superior client outcomes.

    Throughout his time in practice, he has represented both parent and school districts at due process hearings, and thereafter before federal trial courts and the Ninth Circuit Court of Appeals.

    Hans has consistently obtained favorable outcomes and prevailing party status for clients. He works with clients with numerous disabilities, unique needs, and individual goals. He has received endorsements and recommendations from clients and stakeholders in the field of special education with some available for review at:
    http://www.linkedin.com/pub/hans-gilinger/6/799/932

    Good luck, and feel free to set up a free intake with our office to discuss your concerns.

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

    See question 
  • How long do I have to file a lawsuit against a school district that potentially made intervention of just now diagnosed Asperger

    My son was on an IEP at age 7 in 2007, which they locked him in a safe room for days at a time and eventually kicked him out. He has become worse at age 13, withdrawn and finally diagnosed with Aspergers with multiple other mental conditions that...

    Hans’s Answer

    This response presumes that your question relates only to public school(s). The problem for your planned action against the district is the passage of time. The IDEA provides for a two year statute of limitation (SOL) for filing due process complaints. This means that you can only file a due process if the school’s action that you are disagreeing with happened within the last two years. However, sometimes parents don’t know about a school’s violation until much later.
    In those cases, you have two years to file a due process from the date that you either learned about the violation or reasonably should have learned about the violation. If the school district did something to prevent you from becoming aware of the problem (claimed they fixed the problem when they didn’t or kept information from you that they were required by law to provide) then the two year statute of limitations does not apply.

    This SOL problem discussed above potentially bars your non-IDEA claims flowing from the seclusion you discuss. The IDEA requires that all claims be first brought and resolved at an administrative hearing. To the extent your claims could have been pled as an IDEA claim (even where you seek only damages that are not available under the IDEA), such claims are subject to the IDEA's exhaustion requirement. Circuit courts are split on this standard, and you should consult an attorney in MO for the 8th Circuit's current rule. Should your circuit apply the above rule and you fail to exhaust within the 2-year SOL, your non-IDEA claims are time barred for want of exhaustion.

    Courts have examined whether the administrative exhaustion requirements of the IDEA apply in situations involving the use of seclusion and restraint. In C.N. v. Willmar Public Schools (8th Cir), the court required administrative exhaustion under the IDEA, finding that if the parent was dissatisfied, she must follow the IDEA's due process procedures and file and complete a due process hearing. In C.N., the parent failed to do so timely (within 2 years), and the court affirmed dismissal of claims for want of exhaustion; in dicta, the court also observed that the parent could not cure the problem by exhaustion because due process was not available as time-barred.

    The Eighth Circuit Court of Appeals has concluded that, due to this State statute, if “a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved.” Thompson v. Bd. of Special Sch. Dist. No 1, 144 F.3d 574, 579 (8th Cir. 1998). This may impact you further, depending on your situation and facts not indicated in your inquiry.

    The Thompson case has been affirmed several times by the Eighth Circuit as recently as 2010 in C.N. v. Willmar Public Schools, 591 F. 3d 624 (8th Cir. 2010). As clarified by the State in its August 25, 2011 letter to Secretary Duncan, the Notice cites the Thompson case and states “due to an interpretation of state law by the 8th Circuit Court of Appeals, if your child changes school districts and you do not request a due process hearing before your child enrolls in a new district, you may lose the right to have a due process hearing about any special education issues that arose in the previous district.”

    Sorry for the bad news, but do check with an attorney in your state knowledgeable about these matters. Good luck!

    Hans Gillinger
    Law Offices of Bonnie Z. Yates
    13323 Washington Blvd., Suite 300
    Los Angeles, CA 90066
    tel: (310) 204-6624
    fax: (310) 204-6624
    Direct: (310) 279-5048
    Email: hans@bonniezyates.com
    web: bonniezyates.com

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