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Mark Steven Eisenberg
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Mark Eisenberg’s Answers

150 total


  • 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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  • Is a request for judicial notice submitted to court of appeal on an appeal or writ, the same as one presented in trial court?

    Would I file my request for judicial notice (and supporting documents that I am asking the court of appeal to take judicial notice of) along with my writ, the same way I would file it with a motion for example in trial court?? Would or can my req...

    Mark’s Answer

    A request for judicial notice by a reviewing court must be made by formal noticed motion, separate and apart from your appellate brief. The moving papers must state (1) why the matter to be noticed is relevant to the appeal, (2) whether the matter was presented to the trial court and if so, whether the trial court took judicial notice of the matter, and (3) whether the matter relates to proceedings occurring after the order or judgment that is the subject of the appeal. If the matter was presented to the trial court but the trial court did not take judicial notice of it, your motion should also explain why judicial notice is appropriate on appeal. Finally, the motion must be accompanied by a proposed order and a copy of the matter to be judicially noticed. See Rule 8.809 of the California Rules of Court. Good luck.

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  • Fall at Mariposa County Superior Court resulting in substantial injuries to disabled person (Myself). Demurrer w/leave to amend

    I fell on the grounds of the Mariposa County Superior Court. I was forced to walk across the uneven lawn which caused my fall. I contacted Mariposa County Council & he instructed me to file a claim with County Administration which I did. It was de...

    Mark’s Answer

    • Selected as best answer

    The purpose of a demurrer to a complaint is to attack the complaint by demonstrating that one or more element of a cause or causes of action is/are not properly pleaded or not pleaded at all. It's hard to tell from your facts whether the demurrer was sustained on its merits or simply by default due to your failure to respond. Take guidance from the Court order sustaining the demurrer, which should have at least some discussion about why the Court sustained the demurrer, any defects the Court identified and what new allegations the Court would like to see in an amended pleading to cure the defect. If the Court's order isn't helpful, refer to the demurrer itself to see exactly what the defendant claims is lacking in your complaint. Drafting a complaint can be technical and nuanced. I strongly recommend that you hire a civil litigation attorney, if not to represent you, then at least to help you draft an amended complaint. Good luck.

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  • How do I fill out and serve a Substitution of Attorney (MC-050) form?

    I am currently seeking to substitute my current attorney to temporarily represent myself in my child support case until I hire new counsel and I need to know what to fill out in the top column where it says ATTORNEY OR PARTY WITHOUT ATTORNEY, spec...

    Mark’s Answer

    In the "ATTORNEY FOR" section at the top put the name, State Bar number and address of your current attorney. Item 1 check the box that says "Attorney" and type your attorney's name. Item 2 check the box that says you're representing yourself and include your address and telephone number. Item 3 check the correct party designation. Be sure to type and sign your own name in items 4 and 6. Item 5 is for your attorney's typed name and signature. You're required to serve all parties to the litigation. The court will not accept the Substitution for filing without a Proof of Service listing all parties you served and the date and manner of service. Everyone you serve should receive a copy of the Substitution with an attached Proof of Service. Good luck.

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