Atty. Carina Castaneda

LAW AND ORDER: THE LEGAL SYSTEM

Firearms Prohibition And Right To Hearing For 5150 Individuals

As a result of having been taken into custody, assessed and admitted pursuant to Welfare and Institutions Code (WIC) sections 5150, 5151 and 5152 as a danger to self or others, you are prohibited from owning, possessing, controlling, receiving, or purchasing a firearm for a period of five years from the date of discharge.

A previous client had called me about a friend’s daughter who was 5150 admitted earlier this year and is now in the process of pursuing a job with a law enforcement agency. Due to the firearms prohibition, she was very distraught because besides this one incident, she has a stellar educational background and would be a viable candidate to be a peace officer.

Just this morning, I had an attorney representing an individual who would like to pursue a career that involves possessing firearms. The preparation of the instant motion and the subsequent hearing is complex and in order to insure that the court grant the client’s request, it is critical to hire an effective attorney with experience in this matter.

If you were held involuntarily in the facility for more than three days, then federal law may prohibit you from owning or possessing firearms for a longer period of time. Relinquishment could mean selling or transferring your firearms to a non-prohibited third party using a licensed firearms dealer (Penal Code section 28050) or you may utilize the Power of Attorney for Firearms Relinquishment Sale of Disposal (Penal Code section 29810).

WIC section 8103, subdivisions (f) and (g), allow you to request a hearing by the Superior Court to provide relief from the firearms prohibition. Upon discharge from this facility, you will be provided with a Request for Hearing for Relief from Firearms Prohibition. If you request a hearing at the time of discharge, the completed form will be forwarded by the mental health facility to the Superior Court in your county of residence unless you elect to submit the form yourself.

If you do not request a hearing at the time of discharge from the mental facility, a single request may be made to the Superior Court in your county of residence at any time during the five-year prohibition. The form is a form from the Department of Justice (DOJ) and entitled Bureau of Firearms, Request for Hearing for Relief from Firearms Prohibition.

Upon completion of the form and filing it at the appropriate Superior Court, the court shall set a hearing date within 30 days of receipt of the request. You can either request a confidential private hearing for restoration of your rights to own or possess firearms. You have the right to request this pursuant to WIC section 8103, subdivision (f)(5). If you want a confidential hearing, the hearing is closed to the public unless the court finds that the public interest would be better served by conducting the hearing in public.

The Bureau of Firearms in the DOJ collects the information requested on the form and all the personal information requested in the form must be provided. In order to establish patient request for hearing relief, DOJ may need to share the information with any peace officer or other person designated by the Attorney General upon request.

Firearms prohibition due to 5150 assessment/custody/admission is a period of five years and for many who want their constitutional rights to not be infringed upon, this is a matter of serious gravity. For this client, it means her future career and livelihood so it is critical to file the appropriate forms and be able to present a cohesive and comprehensive presentation as to why the court should grant your request.

I am a firm believer in being prepared and because of this, the more information and documentary evidence you provide to the court and DOJ, the higher your success rate will be.

Any questions, feel free to email me at This email address is being protected from spambots. You need JavaScript enabled to view it. or visit my website at attycastaneda.com

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What are My Fiduciary Duties if I Am Involved Romantically with Someone?

It is important to understand that when people live together, whether or not they are married, a ìconfidential relationshipî arises between them. For married persons this relationship arises from a legally recognized nature of matrimony. For unmarried persons, certain important legal obligations are present but may be of lesser value. Nonetheless, due to the trust and confidential nature of the relationship, duty of loyalty, care and disclosure in transactions will be imposed.

Spousal duties have evolved over the years but management and control of assets and disclosure of such assets are well established. Family Code 721 is the starting point. Subsection (b) states, ìThis confidential relationship is a fiduciary relationship subject to the same rights and duties as non-marital business partnersÖî as set forth in the Corporations Code. It imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.î

Section 721 (b)(1) further entitles each spouse access to information about all things affecting any transaction which concerns the community property estate.î This duty arises by operation of law and no requests needs to be made of that status of property or assets. FC 2100 (c) makes this obligation clear that ìeach party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.î

An interesting and on point case is Marriage of Rossi. Ms. Rossi won $1,336,000 in a lottery pool and shortly thereafter filed for divorce. She never told her husband about her lottery winnings and failed to disclose the funds in any of her required disclosures. She even consulted with lottery officials how to conceal her winnings from her husband learning about the price. A judgment was entered in the divorce case without Mr. Rossi knowing about the winnings. Two years later, he inadvertently received a letter regarding the winnings. He filed a motion to set aside the divorce judgment and the court held that Ms. Rossiís failure to disclose constituted fraud, oppression and malice and award him 100% of the winnings.

Another seminal case is Marriage of Feldman. This case focuses on the duty of disclosure during dissolution proceedings and confirms the consequences of breaching those duties. The trial court found that the husband established a ìpatternî of financial non-disclosures and issued sanctions against him. The sanctions were set in an amount the court deemed sufficient to deter future noncompliance with the disclosure requirements.

Notably, unlike FC 271 which requires the court to consider the partiesí incomes, assets, and liabilities. FC 2107 addresses sanctions and attorney fees for violations for nondisclosure only require sanctions in an amount sufficient to deter bad behavior.

Transparency and honesty is required in divorce proceedings as to asset disclosures, ìhiding the ball,î means severe penalties as these two seminal cases exemplify. Preliminary and final declaration of disclosures are exchanged prior to judgment and for some cases, discovery work will be required to get all critical information about the assets obtained during marriage and their valuation thereof.
A qualified and experienced family attorney will be needed to navigate the complexities of these issues.

Any questions, call my office at 310-601-7144 or email me directly at This email address is being protected from spambots. You need JavaScript enabled to view it. and always visit my website for more articles, attycastaneda.com.

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What are My Fiduciary Duties if I Am Involved Romantically with Someone?

It is important to understand that when people live together, whether or not they are married, a “confidential relationship” arises between them. For married persons this relationship arises from a legally recognized nature of matrimony. For unmarried persons, certain important legal obligations are present but may be of lesser value. Nonetheless, due to the trust and confidential nature of the relationship, duty of loyalty, care and disclosure in transactions will be imposed.

Spousal duties have evolved over the years but management and control of assets and disclosure of such assets are well established. Family Code 721 is the starting point. Subsection (b) states, “This confidential relationship is a fiduciary relationship subject to the same rights and duties as non-marital business partners…” as set forth in the Corporations Code. It imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.”

Section 721 (b)(1) further entitles each spouse access to information about all things affecting any transaction which concerns the community property estate.” This duty arises by operation of law and no requests needs to be made of that status of property or assets. FC 2100 (c) makes this obligation clear that “each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.”

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Attacking Premarital Agreements

There are several ways a prenuptial agreement can be attacked and found invalid. A premarital agreement is unenforceable if a party against whom enforcement is sought proves either of the following: (1) consent was involuntary; (2) the agreement was unconscionable.

I have a client that was not represented by an attorney at the time she signed the agreement and needed an Italian translator. She is conversational in English but due to the legal terms used in the agreement should have had a translator provided. In fact, she did request that the documents be provided to her in Italian too—but was never provided to her.

The court will strongly scrutinize the facts on a case-by-case basis factors that the judge will review are if a party is not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. That the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations and could not have reasonably obtained adequate knowledge of that information.

The issue of whether an agreement is unconscionable is a decided as a matter of law by the court. The court must find on the record and or in writing all of the following: (1) party was represented by an independent legal counsel at the time of signing the agreement or after being advised to seek an attorney, expressly waived, in writing, representation. (2) party had less than 7 calendar days between the time that the party was first presented with the agreement and advised to seek representation and the time it was signed (3) if unrepresented, the party was fully informed of the terms of the agreement (4) agreement not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into an agreement (5) and any other factors the court deems relevant.

Independent legal counsel are recommended by the court in drafting a prenuptial agreement since the parties’ interests are often adverse. Due to the nature of the relations, there may be certain situations in which it is critical. For example, when one of the future spouses is considerably wealthier than the other, or when only spouse waives his or her rights to an elective share.

An agreement is unenforceable if not voluntary or the result of duress (Uniform Premarital And Marital Agreements Act, Section (9)(a)(1). Evidence of lack of capacity, duress, fraud, and undue influence as demonstrated by a number of factors are probative in proving involuntariness (In re Marriage of Bonds, 24 Cal.4th 1 (2000) Adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily.

A court may refuse to enforce a term of a premarital agreement if in the context of the agreement taken as a whole (1) a term was unconscionable at the time of signing; (2) enforcement of the term would result in substantial hardship for a party because of a material change in circumstances arising after the agreement was signed (Uniform Premarital and Marital Agreements Act, Section 9 (f))

The hearing requesting invaliding a prenuptial agreement is a complex matter and highly contested. Be prepared, this hearing will require a great deal of legal work. Any comments, feel free to call my office at 310-601-7144 or email me at This email address is being protected from spambots. You need JavaScript enabled to view it.

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THE INTERSECTION OF FAMILY AND CRIMINAL LAW

Although family law and criminal law are two very distinct areas of the law, they frequently overlap creating challenges for lawyers who specialize in just one area. When a family law case involves elements of criminal law such as domestic violence, child abuse, restraining orders, alcohol (DUI) or drug offenses, the case becomes exponentially more complicated for the family law practitioner.

Since I have been a District Attorney in Los Angeles County for ten years with extensive experience in family violence and DUI/Drug criminal cases along with prosecution of child support cases, I have now twenty-one years experience in both the family and criminal law arena.

Often the multitude of orders in the family courts and criminal courts need to be consistent since conflicting orders will detrimentally affect your client and parties involved (including the children). Cases may proceed simultaneously in different courts and through different attorneys exposing the challenges of which orders take precedence. Note as well the different burden of proof since family law is in the civil arena while criminal law poses the paramount burden of proof of beyond a reasonable doubt.

I have written about the importance of how criminal charges such as child abuse, domestic violence, drug related arrests by a defendant involved a divorce case must be litigated to its full extent in order to prevent negative consequences to his/her divorce case. A conviction of a violation of a restraining order, drug possession and use, or child abuse/neglect for example, would be considered by the family court judges in determining custody, visitation and spousal support.

All states, including the District of Columbia (“DC”) have statutes that require the courts to consider domestic violence committed by one parent against the other in resolving custody or visitation disputes between parties. Additionally, in all states and DC, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further orders.

In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required or requested to leave the home. In about one-third of the states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident without further investigation or court intervention.

In some states, the police can give the victim an emergency protective order (EPO). An EPO is a short-term protection order typically given to a victim by the police or a judge. This permits the victim to file the necessary paperwork in family court for a permanent restraining/protective order.

Any drug or alcohol related arrests and conviction impacts the court’s ruling as to which parent should have legal and physical custody of the child. In determining what is the best interest of the child, the judge will review a parent’s history of drug and alcohol use/abuse and impose certain conditions for visitation or even impose no visitation.

As for any reports of child abuse and/or neglect, the Department of Children Services will also become involved and depending on the police findings and agency recommendation, a criminal case will be filed. The family law judge will then make a finding of whether a parent (defendant in the criminal case) has any visitation or custody rights.

I have represented many clients in both arena and have even taken the criminal cases to trial since I know the dire consequences to my client’s divorce/family law case if a conviction results. A false allegation of domestic violence, child abuse, drug use is not uncommon while a divorce is ongoing so it is critical that a client who faces both a criminal charge and an ongoing divorce is represented adequately in both arenas.

If you have any questions, feel free to email me directly at This email address is being protected from spambots. You need JavaScript enabled to view it. or visit my website attycastaneda.com.

http://attycastaneda.com/intersection-family-criminal-law/

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D.U.I. AND SOBRIETY CHECKPOINTS

With Memorial Day and the summer season coming soon, many should be aware of DUI checkpoints. Generally, probable cause to stop and question the driver-—observing a traffic violation, defect in the vehicle or driving pattern that indicates the driver may be under the influence of alcohol, narcotics or both. However DUI sobriety checkpoints is an exception to this rule and courts have upheld the power of the police to conduct systematic traffic stops.
To pass constitutional muster under both federal and state laws specific guidelines are outlined in cases such as Ingersoll v. Palmer in California. If the police do not follow the protocol described such as in Ingersoll, the checkpoint is not lawful, and any evidence gathered during arrest may not be admissible in court. Without the evidence collected at the scene, most cases will be dismissed.
The California Supreme Court identified eight factors that minimize the intrusiveness on the individual being stopped, while balancing the needs of the society to keep the “drunk” drivers off the road.
(1) Supervisors Decide: The establishment and location of sobriety checkpoints must be decided by supervisory police officers, not officers in the field. This is important in order to reduce the potential for arbitrary and random enforcement.

(2) Field Officers Discretion Limited: A neutral mathematical formula, such as every sixth driver etc. is used in determined in who to stop. Again with the purpose that field officers do not get to stop any driver he/she chooses.
(3) Safety Conditions Installed: In order to minimize risk of danger to motorists and police, proper lighting, warning signs and signals must be clearly visible. Clearly identifiable official vehicles and personnel must be present.
(4) Reasonable Location: The sites chosen should be those which will be most effective in actually stopping drunk drivers. They must provide documentation and history that at or near the location, high incidents of alcohol-related accidents and arrests have occurred.
(5) Time and Duration: Police are expected to use reasonable and good judgment in determining the duration of the checkpoints. The goal is to insure effectiveness of the operation coupled with the safety of the general public.
(6) Indicia of Roadblock: It should be established with high visibility, including warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are these factors important for safety reasons, but advance warning is necessary to reassure motorists the stop is officially authorized.
(7) Length and Nature of Detention: Only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, bloodshot eyes. If no impairment exists, the driver should be permitted to drive on without further delay. If the officer observes signs of impairment, the driver will be directed to a separate area for further investigation and the general principles of detention and arrest would apply.
(8) Advanced Publicity: There must be notice to the public prior. The thought is that, it limits intrusion on a

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The domestic violence allegations surrounding Johnny Depp and its impact, if any on the divorce proceedings.

We all have read and seen pictures of what appears to be injuries to Johnny Depp’s spouse, Amber Heard. A petition for dissolution has been filed by Ms. Heard to terminate her marriage to Mr. Depp and appears to be requesting also financial issues, including but not limited to, spousal support and asset division. She also filed a request for a restraining order based on her alleged fear and prior physical and mental violence caused by Mr. Depp.

Although many attorneys use the “guideline” dissomaster computer program to calculate temporary spousal support, the dissomaster computation is merely a starting point. The court is required by law to consider all factors set forth in California Family Code (FC) 4320.

FC 4320(i) states in full that “documented evident of any history of domestic violence, as defined in Section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party, and consideration of any history of violence against the supporting party by the supported party.”

FC 4320(m) states in full that “the criminal conviction of an abusive spouse and the elimination of the award in accordance with FC section 4325.”

FC 4320(n): states in full that the court can consider, “any other factors the court determines are just and equitable.”

There is no open and current criminal case against Mr. Depp. But as we see in the tabloids and media outlets, Ms. Heard’s attorney or representatives are “putting” out there photos of her bruises, broken glasses at the scene, etc. and the Los Angeles City and County prosecutors may take a second or even a first “look” into this case. Note, however, that even though Ms. Heard did call the police at one of the incidents, the police indicated there was “no crime” and never pursued any domestic violence arrest of Mr. Depp.

Why are these allegations of domestic violence—both physical and emotional acts surfacing? As already stated above, the court is required to review all filed or non-filed acts of domestic violence, including emotional impact on the supported spouse.
She was granted a temporary restraining order and a permanent order hearing should have been scheduled. It is at this time that the court will decide whether a restraining order, usually lasting 3 years will be instituted.

Disproving domestic violence is not easy and fighting a protective order or a restraining order against you requires a skilled trial attorney. The standard of proof in the civil case (family law) is preponderance of evidence and the criminal case is beyond a reasonable doubt.
The orders are the same in both the family and criminal courts. The terms of staying away from the

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VICTIM OF A CRIME

I just dealt with a case dealing with the victim of a very serious crime (attempted murder). The initial bail in this amount was $100,000 but after discussing the case with the victim and his wife, this amount was too low. I immediately worked with the victim and his wife to contact the District Attorney and the law enforcement agencies to insure that the appropriate charge (initially assault with a firearm to be revised to attempted murder/murder), increase bail from 100k to 2million dollars and to get a criminal restraining order for both husband and wife. After advising them to gather additional evidence and provide to the police agency, a search warrant was executed. This was all done in 2 days since the defendant was going to be arraigned in “48” hours since he was in custody.
Victims in criminal cases are witnesses –they are not a party to a criminal case. Consequently, many victims are not aware that they should actively “participate” in their case. I had another victim to a rape case who called me after the criminal case was “dismissed.” She wanted me to help her get a restraining order in civil court since when the criminal case was dismissed, no criminal protective order was issued. To say, she was confused as to why her case was dismissed is “putting it mildly.” But it was too late for me to help her in the criminal process when the prosecuting agency has already decided it would not file the case.


The point is hiring a criminal attorney to assist victims in “dealing” with the criminal court system is essential. It is not only critical but as a victim of a crime, in California and many other states, it is your constitutional right. California Constitution article I, Section 28, section (b) has significantly expanded the rights of the victim. This is commonly referred to as “Marsy’s law.”
Victims of a crime, as defined under the California Constitution is a “person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian or a legal representative, such as an attorney, of a crime victim. This victim may be deceased, a minor, or physically or psychologically incapacitated.
These rights are commonly referred to as “Marsy’s Law” which was passed by California voters in 2008 as Proposition 9, the Victims’ Bill of Rights Act of 2008. This measure amended the California Constitution to provide additional rights to victims. It became the strongest and most comprehensive Constitutional victims’ rights law in the U.S. and put California in the forefront of the national victims’ rights movement.
Dr. Henry T. Nicholas, the co-founder of Broadcom Corporation was the key backer and proponent of Marsy’s Law. Marsy’s Law was named after Dr. Nicholas’ sister, Marsalee (Marsy) Nicholas. While a student at the University of California Santa Barbara, she was stalked and killed by her ex-boyfriend in 1983. Only a week after Marsy was murdered, Dr. Nicholas’ and Marsy’s mother, Mrs. Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.
Prior to the passage of the law, the courts, the prosecutors, and law enforcement had no legal obligation to keep families of

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USE YOUR RIGHT TO REMAIN SILENT

I had two clients call me recently about why they were not provided their “Miranda” rights prior to the police asking them questions. If you are not under “arrest,” the rights are not triggered. Both clients made admissions to the alleged crimes and the analysis then proceeds to whether they were under arrest and should have been advised of their constitutional rights.

The landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police. Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.

The United States Supreme Court overturned Mr. Miranda’s conviction finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights. The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.

(1) The right to remain silent;
(2) Anything you say will be used against you in court;
(3) The right to have an attorney present;
(4) If you cannot afford an attorney, one will be provided at no cost to you.

This case had broad ramifications for all police officers and required them to issue these warnings when a person is placed under arrest and will be interrogated. Note also that the officers are required to make sure you understand either each right specifically or in its entirety. In practice, many officers will state, “do you understand” after each right or at the end of the warning—either way has been held to be proper.

We are all aware of the contents of Miranda. It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance. More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee: say nothing or seek the help of an attorney.

Keep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers. Hence, if they are not cops, Miranda does not apply. Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, and social security does not require the advisement. I placed quotes on the words volunteer and spontaneous. As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or

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FIREWORKS: ARE THEY LEGAL?

It is approaching July 4th and as many of us know many people enjoy “blowing” things up. It maybe a “homage” to the rockets’ red glare that Americans love fireworks and prior to 1950, few states regulated them. But due to concern over injuries, enactment of laws were implemented.

Even sparklers burns at 2,000 degrees Fahrenheit and so it will severely burn and scar skin. In fact sparklers are the number one cause of reported injuries due to fireworks. The federal government regulates fireworks under the Hazardous Transportation Act and Hazardous Substances Act. But the federal government allows the states to enact their own more stringent statutes.

In California, the State Fireworks Law was enacted in 1974 (Health & Safety Code Section 12500 and following). Under this, the state classifies the items that qualify as “fireworks”, who may possess or sell them, and dictates when and where they may be set off.

Fireworks are defined as being any device containing chemical elements that do not require oxygen to burn and that produces audible, visual, mechanical or heat pyrotechnic effects for entertainment. Private citizens who are not licensed by the state to discharge explosives are strictly prohibited from possessing and/or discharging certain fireworks that state law lists as “dangerous.”

Unlike some states, California explicitly defines what are “safe and sane” fireworks. These are the fireworks that may be sold, purchased, and used by the general public, but only within very strict parameters. Only licensed retailers can sell them and they can only do so from June 28 to July 6 each year.

It is illegal to sell or give dangerous fireworks to anyone under 18 and illegal to sell or give safe and sane fireworks to anyone under 16. Most violations are misdemeanors with penalties of up to 1-year county jail and/or fine of up to $1000, excluding penalties and assessment charges. However, if you possess large quantities of dangerous fireworks and not licensed to do so, you can be charged with a felony with up to 3-years of state prison and up to $50,000 of fines, excluding restitution (i.e. fire department, victims).

Unlike people, pets do not associate the noise, flashes, and burning smell of the fireworks with celebration. Pets, as many of you know, are terrified of fireworks. In fact, July 6 is the busiest day of the year for animal shelters so keep your pet indoors. The loud noise creates panic for them and will make them break free and jump a fence to attempt to find safety. If your pet does manage to become lost, it is critical that proper identification is on them (microchip, ID tags) should be placed on them at all times.

Enjoy a safe and stress-free July 4th everyone! Any questions or inquiries, do not hesitate to email me at This email address is being protected from spambots. You need JavaScript enabled to view it. or call my office at 310-601-7144.

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