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David M Blain

David Blain’s Answers

131 total


  • I've been trying to find the form for a specific objection to an interrogatory.

    The defense asks a question based on facts never alleged in any of the pleadings. There has to be an objection for this, but I cannot seem to find it. Can someone point me in the right direction as to where to look?

    David’s Answer

    The questions and information sought in discovery do not have to be strictly limited to facts plead in any of the pleadings. Parties in discovery are entitled to information, documents and other tangible evidence that may have a tendency to lead to the discovery of admissible evidence.

    The information and documents exchanged in discovery may nonetheless be excluded from evidence at the trial on the matter, but that does not mean the party are not entitled to such documents and information during discovery.

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  • IS A PLAINTIFF REQUIRED TO FILE WITH THE COURT THEIR MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO A DEFENDANT'S DEMURRER?

    Plaintiff's attorney sent their opposition 9-days before the hearing date, but document is not stampped as recorded by the court. Is this valid?

    David’s Answer

    There's no obligation to serve a party with an endorsed copy of the memo in support of Plaintiff's opp.

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  • A defendant in a case files a demurrer, the court sustains the defendant's demurrer with a leave to amend for the plaintiff.

    The plaintiff files a first amended complaint and the defendant files a second demurrer. The court sustains the second defendant's second demurrer with leave to amend for the plaintiff. The plaintiff files a second amended complaint. And this e...

    David’s Answer

    If you haven't done so already, retain an attorney.

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  • What jury instructions are there for credit card lawsuits? What instructions to the jury show what the plaintiff must prove?

    This is a limited civil credit card case. I'm the defendant.

    David’s Answer

    Here's a link to the 2013 edition to CACI: http://www.courts.ca.gov/partners/documents/caci_2013_edition.pdf

    The type of instruction will depend upon the causes of action(s) alleged by plaintiff. There are also additional preliminary instructions and evidentiary instructions that are relevant.

    There are instructions for contracts (formation, interpretation, defenses, etc.), breach of contract, fraud, misrepresentation, damages, etc. Without more information I can't give you a better tailored response.

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  • Limited Civil case, the limit is 35 total requests, does this include admissions, interrogatories, and request for docs?

    Thanks in advance.

    David’s Answer

    Yes. See California Code of Civil Procedure section 94, subdivision (a)(1) - (3).

    You're also only allowed one deposition. See Cal. Code Civ. Proc. section 94, subdivision (b).

    A good idea, though, is to serve a case questionnaire with the complaint as authorized by section 93. That way you can get basic information like names, addresses, witnesses, etc. without having to waste any of your 35 questions.

    http://www.leginfo.ca.gov/cgi-bin/displayco

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  • Who's more Likly to be at fault?

    I was backing out of my driveway and stopped halfway out,looked over to see a car coming at me pretty fast. I was stopped for maybe 5 sec when she hit the back side passenger. She didn't even brake so I think she was on her phone. The damage to...

    David’s Answer

    Report it to your insurance carrier and let them figure it out.

    You're probably both at fault, but you may share the greater amount of the blame since you didn't have the right of way and backed out in front of the other car.

    You saying she was speeding isn't going to carry much water because she'll say she wasn't speeding. And since there aren't any independent witnesses or a police report to record statements made at the place of the accident, you're probably going to bear the brunt of the blame.

    But that's why we have insurance, so that unintentional accidents like this are covered.

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  • Contractor charged us for permits that he had to pay for - is this fraud?

    On the plans, it clearly states that the contractor "shall pay for and obtain all work permits, fees, insurance and taxes required for the project. Owner shall pay building permit fee." Our contractor asked us for a blank check to pay for the "bui...

    David’s Answer

    Well, first of all stop writing blank checks and handing them out to people.

    Secondly, call him and have a discussion with him about this issue.

    If he does nothing about it, then you can sue him in small claims court.

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  • Can I, a pro se, file a class action complaint against the Superior Court, Court of Appeal, the Supreme Court and the State Bar?

    I sued a doctor. The doctor's lawyer lied through the legal proceedings. And the doctor won. I feel that the courts treated me unfairly because I was a pro se litigant. In every level, I was told that I did not do things correctly. It was an ...

    David’s Answer

    You were told by the Court and opposing counsel you made many mistakes at every level because you probably did make many mistakes at every level. It's not an injustice to require every litigant to play by the same rules. It's either your error in judgment to refuse to sign a lawyer or your stubbornness in pursuing a claim lawyers told you wouldn't win.

    Access to a lawyer, especially in a med mal case, is fairly available AT NO COST TO THE PLAINTIFF unless you win. However, this assumes the Plaintiff has a meritorious claim and one that could win in trial. And this is rightfully so. Lawyers don't front costs and get paid possibly nothing on cases thy know will be unsuccessful.

    The fact that a lawyer never represented you means 1 of 2 things. 1, you never bothered to look for an attorney who could help you or 2 any lawyer you sought declined representation because you didn't have a meritorious claim.

    There is no class action against the court system in the facts you present, but since you'll be representing yourself in that class action then it doesn't matter what advice or guidance any lawyer on AVVO will give you.

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  • Is my insurance company entitled to the property damage portion of my settlement paid by the other driver's insurance?

    My boyfriend, daughter and I were in a rear end accident while stopped at a stop light 2 years ago. By 6 months my insurance co. paid for my car rental (2K), paid off my car (18K) plus an additional 4K to make up the value difference in my car. My...

    David’s Answer

    Insurance companies have subrogation and reimbursement rights. These contractual and statutory rights allow the insurance company to be reimbursed or to recover the amount of money they paid on your behalf. This is customary.

    Without knowing the context of your conversation with your lawyer, it was probably meant that the recovery for property damage will not be subjected to his attorney fee amount, i.e. his 33.3% It does not mean the insurance company is not allowed to recover the amount they paid on your behalf for your property damage.

    You should raise this issue with your lawyer and allow him the opportunity to explain it to you. It sounds like he did a good job representing your interests and he shouldn't have an unhappy client because she doesn't understand the rights of the insurance companies.

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  • I recieved 3 different requests to set for trial (UD) from my landlord with 3 different dates, What should I do?

    I filed an answer to the UD and received a request to set for non jury trial a week after. Then my landlord had someone else send me another one a week after that. Then I received another one from someone else 2 days ago. Now i'm confused as to wh...

    David’s Answer

    You can also check online the status of your case. If a trial date has been set by the Court it will be posted on line as well.

    Assuming the case has been filed in Los Angeles County because that is where the question was posted, you can find the LA Superior Court website here: http://www.lasuperiorcourt.org/

    You'll need the case number as well as the name of both parties and the address of the residence.

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