Skip to main content
David M Blain

David Blain’s Answers

131 total


  • What can I do about a lawyer claiming inadvertence?

    I have a pending motion to have a court clerk's error corrected. The overworked clerk accidentally filed an Answer even though a Request for an Entry of Default judgment had been submitted. The attorney for the bank did not file a timely Answer...

    David’s Answer

    There seem to be quite a few details missing in your statement of facts, which makes it difficult to provide an adequate response.

    However, if the Answer was filed prior to your Request for Default then the Court will likely deny your request. The rational is that a responsive pleading must be filed within the time specified in the summons OR within any further time that may be allowed. A plaintiff who has yet to request a default has, in effect, allowed the defendant further time to file a responsive pleading. So that's issue number one. Even though the Answer may not have been timely filed, if it was filed prior to your request for default then your request will probably be denied.

    If your request for default was granted and a default judgment was entered against the Defendant, and now that Defendant is seeking to set aside the default on the grounds of his inadvertence then I would oppose that argument by showing the Defendant's actions and failure to act rise to a level beyond inadvertence and excusable neglect. I would argue that the Attorney's failure to adhere and obey a Court order is a dereliction of his duties as an attorney and rises to a level of UN-excusable neglect. I'd also show that the Summons & Complaint were properly served. That the Defendant failed to respond within the time stated int he Summons. Show that the Court provided a certain and specific day that the responsive pleading needed to be filed by and highlight the fact that the Defendant failed to adhere to the Court's order.

    However, in the interests of justice and fairness Courts are often inclined to set aside default judgments and allow defendant's their day in court.

    Good luck.

    See question 
  • Landlord/Tenant California rights

    I own a rental property which I maintain like my own home. I fix every little or major thing that my tenant reports. At the moment, my tenant is demanding that I authorize a furnace inspection. I asked if there was an issue with the heater and the...

    David’s Answer

    No, just because your tenant read something about cracked furnaces does not mean you must pay for an inspection of the furnace.

    If your tenant complains of certain damages, issues, defects, etc. related to the furnace then have it inspected at that time.

    See question 
  • Do I have rights if letter w damages and money owed for rent was sent 70 days after I moved out

    I am being sued for rent and damages (cat) . he sent me a letter stating that I owed this money and what I owed it for. Isn't their a time limit and didn't he have to send itemized bills for the work done? Also what is I don't have $8,000 laying a...

    David’s Answer

    The LL had 21 days to mail you a letter outlining the reasons why he withheld your security along with proof of payment in the amount withheld. And, if there is any security leftover, he must return that with the letter and proof of payment for deductions. Again, this must be done w/in 21 days of you leaving the premises.

    The LL's failure to do this exposes him to liability in the amount of actual damages and statutory damages in the amount of twice the security if you can show the he withheld the security in bad faith.

    The LL's violation of the 21-day rule is not a bar from him recovering actual damages against you. He is still within his rights to sue you for the repair work for the damage you, your guests and/or your pets caused to the unit.

    The fact that you do not have the money will not prevent a judgment against you, assuming the LL can prove his case. The Court will allow a payment plan though.

    Also, as the other attorney stated, it would be a good idea to counter-claim against the LL for his violation of Civil Code Section 1950.5 and try to make a persuasive argument that his violation resulted in certain actual damages for you and that you should be entitled to statutory damages in twice the amount of the security for the LL's bad faith withholding of the security.

    See question 
  • Personal Injury and LLC Question

    I reside in California and rear ended an automobile in Nevada. The driver retained counsel and is claiming medical damages that is in the area of $50k actual damages. My insurance policy is only for 30k. My insurance company has already offered...

    David’s Answer

    I am not licensed to practice law in Nevada, which is the state law that would likely be applied to your lawsuit since that is where the accident occurred and where the injuries were sustained. You should speak with a licensed NV attorney.

    However, both California and Nevada have Uniform Fraudulent Transfer Acts. The CA version can be found here: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=03001-04000&file=3439-3439.12 And the Nevada version can be found here: http://www.leg.state.nv.us/NRS/NRS-112.html

    Under both CA and NV law, a transfer is considered fraudulent as to a creditor if the debtor made the transfer or incurred obligation with either (1) actual intent to defraud, hinder or delay any creditor of the debtor; or (2) without receiving in return reasonable value in the exchange or transfer and the debtor (1) was engaged or was about to engage in business or transactions for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (2) intended to incur debts reasonably beyond the debtor's ability to repay them when due.

    Plus, it doesn't matter when you make the transfer in regard to when the creditor's claim arose or the obligation was incurred by the debtor.

    Long story short, any transfer of personal assets to your LLC to avoid paying a creditor will not ultimately protect those assets from the judgment. The judgment creditor can move the court to find the transfer was fraudulent. BUT, we are assuming that the person who you rear-ended is an actual judgment creditor. That's a big assumption.

    See question 
  • How do I oppose a plaintiff's ex parte motion order for shortening time on a demure to an unlawful detainer action?

    My propery was wrongfully foreclosed on and the third party purchaser is trying to evict me. Wrongful foreclosure complaint has been filed due to servicer conducting illegal trustee sale after in a previous action I was awarded a judgement for qui...

    David’s Answer

    A demurrer may not be the appropriate response in the UD action.

    The best way to oppose the ex parte is to show up at the hearing and explain your reasons to the Judge why the ex parte application should be denied. It'd be better if you could file a written opposition along with a declaration setting forth the needed exhibits (i.e. a copy of the complaint in the other action, etc.) so the Judge has all the information in front of him/her and can make the right decision.

    See question 
  • VERY BAD LANDLORD I NEED HELP!!!

    I have a problem with my landlord I live in an apartment for a year and a half . my bedroom is' above the garage door that makes a lot of noise and rattles my room,my bed every time someone comes or goes , at all hours.. my bed shakes,i can not s...

    David’s Answer

    • Selected as best answer

    It doesn't sound like a safe place to live. You should consider moving.

    The LL is not responsible to you for the noise created by the garage doors as they open and close. The LL is also not responsible for the general cleanliness of the unit, whatever that means.

    If there is a termite infestation or other rodent or insect infestation you should provide your landlord in writing in notice of the issue. Same goes with the electrical issues, mold and lack of safety detectors. If he fails to remedy the issues then send another written notice and demand that he fix the issues. If he continues to neglect his/her duties as a landlord then there are certain steps you can take such as the "repair and deduct remedy" or the "abandonment" remedy.

    For an explanation of these remedies please follow the link provided: http://www.dca.ca.gov/publications/landlordbook/catenant.pdf

    See question 
  • 21 Day Landlord Tenant law regarding return of security deposit. If not followed does landlord lose right to be awarded damages?

    Regarding the specific law, if the landlord doesn't follow the 21 day deposit/deduction list rule then does the landlord lose the right to receive money for damages by the tenant? IF NOT THEN whats the purpose of having the law? A landlord can ...

    David’s Answer

    No, the landlord does not lose his/her right to recover damages.

    However, as the other attorneys have already noted, a violation by the landlord of Civil Code Section 1950.5 exposes him/her to liability to the tenant. Had the LL complied with the law in his/her deductions from the security and notice to the tenant, then the tenant would have no right to any damages. But a violation of this code section potentially allows the tenant to recover up to twice the amount of his/her security deposit as well as actual damages. The kicker here is that the tenant must show the LL withheld the security in bad faith.

    What's bad faith? That's a good question, and it's hard to answer. In my opinion, you would have to show that the LL withheld your money without a reasonable basis for doing so and/or his/her withholding of the money was not allowed by law. One thing you have going for you is the LL's violation of 1950.5(g). But I think you need more than that. You may have a better chance of establishing bad faith if you can show the LL ignored you and your requests for the return of your security; or that the LL was trying to charge you for repair work for damages you didn't cause and were obligated to fix under the lease; or the LL was charging you for repair work for defects that existed prior to your tenancy; etc.

    Good luck.

    See question 
  • Is defendant allowed to set depo of plaintiff prior to depo of defendant already set by plaintiff?

    Say for instance, plaintiff sets depo of defendant in Nov. Can defendant also set depo of plaintiff in Oct. Or, does the following depositions have to be set after the currently set depo as a matter of courtesy.... Unlimited Civil Case

    David’s Answer

    Courtesy isn't codified into the Code of Civil Procedure. Often times counsel for both parties may discuss a deposition schedule, but it is not required.

    So long as the deposition was Noticed timely and doesn't otherwise violate the CCP then the deposition will go forward on the date set.

    See question 
  • What can i do if defendant's demurrer and motion to strike is filed after the 30 days allowed to answer?

    defendants (4) all of which are subsidiaries and parents of the same company were served with complaint from 6/30 - 7/6...defendant filed demurrer/motion to strike 8/4. is this not over 30 days permitted to answer?

    David’s Answer

    The first thing you need to do is calculate the 30 day period the Defendants had to respond. It appears form your question that it is going to be close and that each Defendant was not served on the same day. As the other attorney noted, the method of service and any weekends or Court Holidays will effect the 30 day period.

    If their Response is untimely then you still need to oppose the motion and demurrer. Bring this issue up as point number one. BUT, do not rely only on that procedural argument. Give the Judge certain substantive arguments why the demurrer should be overrurled and the motion should be denied.

    If the Defense gives good reason for the late filing and the Judge allows it then you need something else to oppose the papers.

    Good luck.

    See question 
  • Do you have to have an attorney on a ex parte in a unlawful detianer when its a business thats incorporated

    did ex parte paper work for a cleint going pro per and judge said since the business was a corporation he needed an Attorney to argue the ex parte

    David’s Answer

    A corporation may only appear in court through a licensed attorney.

    In the eyes of the law a corporation has all the powers of a natural person in the carrying out of its business. This means the corporation may avail itself of the state's laws and may bring a lawsuit. However, under long-settled common law, a corporation cannot represent itself before courts of record without a lawyer, and it cannot represent itself through an officer, director or any other person who is not also a licensed lawyer. See the case of Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101–1103 [121 Cal. Rptr. 2d 758. The same rule applies in Federal Court as well.

    The logic behind this rule is that a corporation is an artificial entity created by law and can only act in its affairs through its natural persons, agents and/or representatives. Obviously, any person who would appear in court to act on behalf of the corporation, if not a licensed attorney, would then be practicing law without a license. See the case of Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730 [147 Cal. Rptr. 631, 581 P.2d 636.

    Practicing law without a license is a big problem, and I am not aware of any exceptions.

    See question