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Mark Steven Eisenberg

Mark Eisenberg’s Answers

143 total


  • 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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  • How can I get court rulings on a case that was on my neighbor? I want to know what decision was made to their case?

    Police arrested our neighbors and they were charged with some allegations. I want to know what did the court decide.

    Mark’s Answer

    Your local courthouse's website provides comprehensive information on each of its cases, including the parties, attorneys of record, procedural history, documents filed, prior orders and future hearing dates. You can obtain information about your neighbor's lawsuit by searching by party name, attorney name, case number or document title. To get you started here is a link to the Santa Clara County Superior Court, which services San Jose. Good luck.

    http://www.scscourt.org/index.shtml

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  • If I don't get served with a demand to exchange expert witness information, do I still have to supply the information?

    regarding CAL. CCP. § 2034.220 .

    Mark’s Answer

    Serving a demand for exchange of expert witness information triggers a whole host of deadlines and extensive disclosure requirements, including the mutual and simultaneous obligation of all parties to exchange the identity, opinions and reports of each expert witness expected to testify at trial. If no formal demand is served, none of those obligations are triggered. But even without a formal demand, courts typically require parties to prepare and file joint witness and exhibit lists before trial. Check your local rules and ask your court clerk what your judge's requirements are regarding pretrial expert witness disclosure.

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  • What type of attorney can I seek legal advice from regarding an injury of a disabled person at an apartment complex?

    My mother was injured by one of the doors to her apartment complex. She fractured her elbow. My mother is in a wheelchair and none of the entrance or exit doors to the apartment complex facilitate easy entrance or exit for a disabled person in a w...

    Mark’s Answer

    Consult with an attorney who specializes in personal injury law. There are many to choose from here on Avvo.

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  • Can we get fined for items on our patio?

    We got a notice from our Townhome manager saying that we could only have patio furniture on the patio. I don't think it states that on our lease agreement and has never been a problem before.

    Mark’s Answer

    If you are a tenant and your townhouse is part of a homeowners association, your lease/rental agreement with your landlord is not the only document governing your tenancy. Other governing documents include the association's Covenants, Conditions & Restrictions (CC&R's), bylaws, rules and regulations, and any other document the association may have created for the governance of the association. Ask your landlord for a copy of the association's governing documents to determine your rights and responsibilities on the patio.

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  • Motion for summary judgment on defense that is not in the Answer.

    Defendant files a motion for summary judgment based on statute of limitations, but in Answer, defendant did not list statute of limitations as a defense. If plaintiff opposes motion for summary judgment, but does not raise the defect in the Answe...

    Mark’s Answer

    Failure to object to the pleading defect in opposition to the MSJ effects a waiver of that objection and the defect. See CCP 437c(b)(5); Superior Dispatch, Inc. v. Insurance Corp. of N.Y., (2010) 181 Cal.App.4th 175, 193.

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  • Can a defendant file an answer with defenses when the time for discovery has expired?

    I sued two defendants for breach of contract and fraud. One filed a proper answer and the other an improper answer, procedurally. I then filed a demurrer motion and motion to strike. The demurrer was granted and gave him until September 15 to f...

    Mark’s Answer

    A 'default' in the context of your question means a failure to timely file a response to the complaint. Defendant typically has 30 days from the date the complaint was served to file a response. Regardless when defendant's answer was filed, if the answer was filed before your request for entry of default, you are barred from requesting a default. As far as defendant's failure to respond to your discovery, your facts indicate no responses have been served. If that is the case, you can bring a motion to compel defendant's responses. Be sure your motion includes your sworn declaration explaining the time and manner of service of your discovery requests and the fact that defendant has failed to respond. I suggest you consult with an attorney as your question involves procedural questions that can be tricky. Best of luck to you.

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