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Mark Steven Eisenberg

Mark Eisenberg’s Answers

143 total


  • Partition action - interlocutory judgment by motion or trial needed

    Single family home, joint tenants. Can't get an agreement from business partner to sell, so sued for partition. I need an interlocutory judgment, according to statute. To obtain this, does one request the judgment by noticed motion, or does one...

    Mark’s Answer

    Partition can be obtained at trial or by filing a motion for summary judgment.

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  • Do I need a lawyer at mediation to be reinstated to my nonprofit? Suspension is not in bylaws. CA due process was not given.

    Our new ED has tried to eliminate anyone who challenges her. I have complained she is not following bylaws. Her stacked board doesn't care. When I tried to make formal complaints about board members and members slandering and swearing at me, they ...

    Mark’s Answer

    I agree with Mr. Doland. If the board is not willing to communicate with you or hear you out, you should consider, at minimum, investing in a consultation with an attorney who can advise you on your available options.

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  • Answer Brief on Merits after Petition for Review granted in CA Supreme Court discuss all issues raised/ Appeals??

    So After a 'Petition for Review' is filed (after 'Petition for Review' and 'Answer' filed), isn't one of the main purposes of the subsequent 'Opening Brief on the Merits" (and the 'Answer Brief on the Merits'), to respond to all the issues raised?...

    Mark’s Answer

    • Selected as best answer

    Once the petition for review is granted the petitioning party has the option of filing a new brief or filing the same brief that was filed in the court of appeal. It's usually a good idea to file a new brief for several reasons including (1) new legal authority may have come down since the appeal, (2) the focus is on the court of appeal's decision rather than trial court error, (3) to address points made in the appellate decision, or (4) if the Supreme Court granted review as to specific issues it wishes the parties to focus on. If the Supreme Court didn't place such a limit, the scope of your brief is still limited to the issues presented in the trial court.

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  • How do I proceed with a dismissal request

    I am being sued for breach of contract, involving two horses which I have bills of sale for and numerous messages with the plantiff stating they are my horses. In her court papers she forged the bills of sale very obviously changing the amounts. S...

    Mark’s Answer

    With a trial date in June, you're past the statutory deadline to give adequate notice of a summary judgment motion. Not enough facts to determine whether you can counter-sue, although if you decide to seek leave to file a cross-complaint you should be prepared to demonstrate good cause for taking this long to do so. If, as you say, you can prove you purchased the horses and the sale was legitimate, your best bet is to proceed to trial with the original purchase documents. If by counter-suing you mean to recover the horses, you might consider filing a separate action and asking the court to consolidate both actions.

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  • HOA Board adopted a Financial and Confidential Disclosure Policy while in Executive Session? Is this proper procedure?

    Notice of a discussion on this policy was not provided, either in open or executive session agendas. Minutes of subsequent Board meetings make no mention of this policy. The community's first view of this policy came 3 open meetings later when an ...

    Mark’s Answer

    Any proposed rule change must be in compliance with the procedures set forth in your HOA's governing documents (e.g., CC&R's, bylaws, etc.) and must be preceded by at least 30 days general notice before being voted on. The general notice must include the full text of the proposed rule change and the purpose and effect of the proposed rule change. You should consult with an attorney who is familiar with the Davis-Stirling Act governing common interest developments like yours.

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  • Do I need to file a verified answer to a lawsuit from the city (in California)?

    My city filed a nuisance claim for civil penalties and a request for preliminary injunction against a property. The complaint is not verified and there is no affidavit on the request for the preliminary injunction. Can I use the general denial for...

    Mark’s Answer

    In an action where a state, county or local government entity or agency, or any officer thereof in his or her official capacity is plaintiff, the defendant must file a verified answer unless (1) the answering defendant is also a government entity, public agency, etc., or (2) if an admission of the truth of the complaint might subject the answering party to a criminal prosecution. See Code of Civil Procedure section 446.

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  • How does a lawsuit dismiss w/o prejudice have an affect on the toll of statuette of limitations?

    is it that the time the lawsuit is active in proceedings is the amount the statuette of limitations will be tolled for?

    Mark’s Answer

    Dismissing a case, with or without prejudice, does not toll the statute of limitations on your claim(s).

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  • Will arbitration clause in real estate contract prevent me from taking the seller to small claims court for $5K escrow deposit?

    I want to take my mortgage broker and the seller to small claims court to fight my $5000 escrow deposit for a condo. Mortgage broker gave me negligent advice to release the contingencies before loan approval and the seller disclosed material evide...

    Mark’s Answer

    In order for it to be enforceable, the arbitration provision contained in the standard CAR purchase agreement must have been initialed by all parties to the agreement at the time the agreement was signed. If it is initialed by all parties, you can still file suit, but the defendant can successfully bring a motion to compel arbitration. Having said that, your $5,000 dispute is relatively small in comparison to the cost of hiring an arbitrator and going through that whole process, so the defendant may decide not to compel arbitration and instead proceed in small claims.

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  • Does "understand" imply agreement on a legal document?

    This is from my bedbug addendum. "The treatment will only be effective if your unit is properly prepared. Lessee(s) agree to follow the recommended readiness procedures, including allowing full access to Lessor and its exterminator for treatmen...

    Mark’s Answer

    The language indicates that you agreed to use Lessor's chosen exterminator. Your agreement to do so is express, not implied. Contracts commonly contain language like that quoted above to state that by signing the agreement, the signing party understands x, y and z. Your contract does exactly that.

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  • I saw " Rule 35" for discovery. The attorney of my wife sent me a Demand for Documents with 53 items. Is this not abusive?

    The attorney sent this demand just fours days after she sent a letter for me to send her an updated final disclosure

    Mark’s Answer

    The "Rule of 35" applies to interrogatories, not document requests. There is no limit to the number of document requests you can propound in discovery. A document request may be objectionable based on the number of requests if that number is extraordinarily high, but 53 requests aren't out of the question. Aside from the number of requests, a document request might be objectionable on other grounds, such as if the request (1) seeks documents that are privileged (in which case you must produce a privilege log), (2) seeks documents that are protected by a right of privacy, (3) seeks documents that are work product, (4) is burdensome and oppressive (e.g., compliance would be unreasonably difficult and/or expensive, (5) seeks documents that are equally available to the requesting party (e.g., public records, or (6) is not reasonably calculated to lead to the discovery of admissible evidence.

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