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David Blain’s Answers

131 total

  • If a summons is served by attaching it to my front door with no proof of service attached, how do i find out when it was served?

    I rarely enter and exit my home from the front entrance, so I can not figure out exactly when I was served. The file date was April 29, 2012, but I discovered the document on or around August 1st or 2nd.

    David’s Answer

    A landlord is allowed to serve a tenant by posting a copy of the summons and complaint on the property if the landlord is able to show the court that, through reasonable efforts, the tenant is unable to be served by any other means, i.e. personal service or substituted service. The landlord is also required to send by certified mail a copy of the summons and complaint to the tenant.

    Service by posting is deemed to be complete and effective on the 10th day after the posting and mailing of the summons and complaint.

    Please see California C.C.P Section 415.45 for a complete statement of the rule:

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    David’s Answer

    I agree with the other attorneys. You are going to be fighting an uphill battle because walking out of two depositions for name mis-pronunciation is hardly justifiable.

    With this being an unlimited civil case, and apparently your short temper, you really need an attorney to limit the damage.

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  • Allowable questions in deposition

    In a case requesting punitive damages juries can consider the defendants wealth in deciding whether the punitive damages are large enough to discourage future wrongdoings. Can you ask detailed questions about a private parties net worth, liquidi...

    David’s Answer

    Sure. You are allowed to ask pretty much any question you want during a deposition so long as it is relevant to the issues at hand and reasonably calculated to lead to the discovery of admissible evidence.

    Asking about a persons financial situation and net worth is arguably private and protected information, but as you pointed out it may be relevant to your request for punitive damages. If the other party is represented by counsel, then it is likely that the attorney will object and may even instruct his client not to answer the question.

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  • Are there any legal issues to evicting a roommate when I own the home?

    I purchased a home and allowed my brother and brother in law to move in with me under the guise they get work. However, as normal, things are not working out for my brother in law. He is causing drama in my home, which I own, and argues with us wh...

    David’s Answer

    If you are the landlord, then you can evict any tenant for any reason that is not legally prohibited. The biggest issue is strictly following the unlawful detainer process. The biggest issue landlords have with in the process is providing proper notice to the tenant that the process has begun.

    And also, tenant's are responsibile for any damages they, their guests or their animals cause to the rental unit. Of course that is what a security deposit is for. If you never collected a security deposit then your brother in law isn't going to pay for the repair of the damages. You'd have to take him to small claims court. When in small claims court you would have to be able to demonstrate to the judge that there is damage to your unit and it was your brother in law's pets that caused the damage.

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  • Where does the buck stop with landlords responsibilities to clean from roach problem in CA?

    We have recently rented out our town home after previous tenants lived there for a year and half. We had it cleaned for new rental and were shocked to learn that new tenants had started finding roaches. We are paying for exterminator services and ...

    David’s Answer

    I am going to try and keep this sweet and to the point. But for a thorough understanding of the implied warranty of habitability, please visit my informational page found here:

    To answer your question, the California Supreme Court has said that in every lease agreement there is an implied warranty of habitability.

    Under this warranty, the landlord is responsible to provide a rental unit that is fit for habitation by human beings and that is in substantial compliance with state and local building, health and safety codes. Any condition that renders a unit uninhabitable (unlivable) is the landlord's responsibility to repair. Relevant to your question is CA Civil Code Section 1941.1(f), which states that a unit is untenable if it is not free from "all accumulations of debris, filth, rubbage, garbage, rodents and vermin." I believe cockroaches fall into this section.

    But, you seem to have taken all the right steps by paying for the extermination fees and sprays as well as reducing the tenants' rent. Your obligation is not to do what the tenant asks. It is instead to get the unit into a position that is legally habitable by making sure it is in substantial compliance with the building, health and safety codes. In my opinion, hiring an exterminator is all you needed to do. Getting rid of the roaches gets rid of the problem. Assuming you were unaware of the roach issue, it appears you acted timely once put on notice. I would expect the tenants t pay full rental value for the unit once the roaches have been eliminated.

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  • I entered lease with another person i did not know and that person is creating problem in giving the rent. Can I move her out ?

    I entered lease with another girl on month-to-month lease and this person is creating different problems in the house which i was ignoring because she wanted to stay only 3 months and then i was going to look for another person. But now she is giv...

    David’s Answer

    You as a co-tenant (or roommate) cannot evict another tenant. Only the landlord can evict a tenant. If both your name and your roommates name is on the lease, then you are both responsible for the rent.

    You should only pay half the rent to the landlord and make it the landlord's effort to collect rent from your roommate (even though the landlord can seek full payment from you). The landlord may choose to evict your roommate and sue her for back rent knowing that you have paid your portion and fair share.

    You should consider approaching your roommate and asking her for her back rent. If your roommate refuses to pay you the rent she owes, then you are going to have to take her to small claims court. You will need to prove to the judge there that both your names are on the lease agreement and that the rent was to be split 50/50 (or whatever the agreement was for). You then need to be able to show the judge that you have been paying your portion rent as well as your roommates portion of the rent. It's a good idea to text or email your roommate when requesting she pay you her share of the rent so that you have proof that you can show the judge regarding this issue.

    It sounds as though you should give 30 days notice to your landlord so that you can find a new place to live with a roommate of your choosing.

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  • Dispute over damages to personal property due to flood in apartment from upper level apt.

    I have lived in my apt 10 yrs. 2 yrs ago the city informed the landlord to replace the carpeting due to normal wear & tear. The carpeting was not replaced. In May landlord had plumbing in a vacant apt above mine "fixed" and the following morning 2...

    David’s Answer

    It doesn't appear that you have asked a question, so I am left to speculate.

    The potential lawsuit that you have described is a simple negligence case. If the carpet company refuses to repair the damage or compensate you for your broken belongings, then you will likely need to take them to small claims court.

    In small claims you will have to show that the workers acted unreasonably when they damaged your belongings. You also need to be able to prove what the value of your belongings were at the time they were damaged. If you are able to do these two things then you will likely prevail in your case.

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  • New Attorney question, I am representing a client to defend against an actual fraud, breach of contract action.

    The complaint is unverified. My understanding is that I can answer with a general denial of all claims and state all my affirmative defenses. Is this corrrect?

    David’s Answer

    • Selected as best answer

    To answer your question, yes a general denial is appropriate answer to an unverified complaint. "If the complaint is subject to Article 2 (commencing with Section 90) of Chapter 5.1 of Title 1 of Part 1 [limited civil jurisdiction cases] or is not verified, a general denial is sufficient but only puts in issue the material allegations of the complaint." C.C.P. § 431.30(d).

    However, you may want to consider a demurrer instead of an answer.

    "A complaint for fraud in [CA] must allege the following elements: (1) a knowingly false representation made by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. EVERY ELEMENT MUST BE SPECIFICALLY PLEADED." Service by Medallion, Inc. v. Colorox Co. (1996) 44 Cal.App.4th 1807, 1816. (Italics added)

    Fraud must be pleaded specifically and with particularity; general and conclusory allegations are inadequate. The particularity requirement when pleading fraud requires the plaintiff to plead facts that show how, when, where, to whom and by what means the representations were made. Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal.App.4th 301, 312.

    Because a complaint for fraud must be plead with a greater degree of specificity and particularity, such a complaint is more susceptible to a general demurrer for failure to state facts sufficient to support the cause of action. C.C.P. §430.10(e) - (g). The grounds for a general demurrer are never waived. C.C.P. §430.80. General demurrers are allowed in limited civil jurisdiction cases. See C.C.P. §92(a)

    You should therefore inspect and examine the complaint very carefully and thoroughly to determine if the "who, what, where and when" has been specifically and particularly plead by the Plaintiff.

    If a defendant negates any element to a cause of action, the Court should sustain a demurrer as to that cause of action. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.

    Also, I am assuming because a fraud allegation was included in the complaint for breach of contract, the Plaintiff is requesting punitive or exemplary damages. Generally speaking, punitive damages are not available to a plaintiff in a breach of contracts case unless he can show fraud and/or a tortuous cause of action that overlaps with the breach.

    If the court sustains your demurrer, and the Plaintiff is unable to plead facts sufficient to support an allegation for fraud, then any claim for punitive damages may be open to a motion to strike. Motions to strike the damages or relief requested are allowed in limited civil jurisdiction cases. See C.C.P. §92(d)

    Of course, this is assuming no tortuous cause of action has been plead and all that remains is an ordinary breach of contract claim.

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  • Is a threat to commit residential burglary considered to be a "threat of violence"?

    The threat to enter my apartment and take my belongings was documented in email. Fake Landlord (owners attorneys verified person did not have any right to rent to me and therefore collect rents as fake landlord was illegally occupying the property...

    David’s Answer

    I don't know what causes of action you are intending to bring, but Civil Code Section 51.7 prohibits violence or the threat of violence against a person or their property because of their political affiliation or because of a certain characteristic, i.e. race, gender, religion, etc. No where in your the statement of facts do you claim the violence or threat of violence against your property is because of your political affiliation or because of a certain protected characteristic.

    As for Civil Code Section 52, speech alone (the email) is not actionable under this section, unless you can show the email itself threatens violence against your person (this section is silent as to property) and you reasonably fear that the fake landlord will commit violence against you or your property and that the fake landlord has the ability to carry out the threat.

    Even though I am not certain as to what causes of action you have in mind, I think you have an uphill battle to fight if you want to win on a COA based upon violation of Civil Code Sections 51.7 or 52.

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  • Which proxy service has a good reputation for notifying users about their account being subpoenaed?

    Some internet companies will inform their users that a subpoena is out for their IP address (e.g., a proxy company or web-based email). This gives the user a legal advantage to challenge the subpoena before the identity is revealed. Some compani...

    David’s Answer

    I apologize as I am not able to provide you with a proxy service that is "reputable." My best advise to you is to read the Terms of Use Agreement that each web host or website requires its users to adhere to. Perhaps in these terms there is a disclosure as to that companies general practice when confronted with a subpoena or request for other identifying information.

    Here is a list of internet defamation attorneys in the San Jose area that may be of assistance to you: afs=internet%20defamation%20san%20joseSlander.shtml

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