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Ernie P Santamaria

Ernie Santamaria’s Answers

27 total

  • Must California Courts hold pro se litigants to the same standards as lawyers? What are the legal grounds for such a rule?

    "Because plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 as cited...

    Ernie’s Answer

    I think that most judges will be much more lenient to a pro se litigant but not in every aspect of litigation.

    For example a pro se litigant likely lacks the skills for proper pleadings, motions, discovery, and certainly anything within the world of an actual trial. Candidly, most lawyers know very little about the world of trials, unless they've been in a few. So in these cases, I think a judge will give every opportunity to fix the issues that will appear when dealing with a pro se litigant.

    However, when a litigant is pro se, they are agreeing to learn and play by the rules of the game, and to do so on their own. So a judge should held them accountable for the sake of the life (time and money) of a litigation. I have seen judges almost beg pro se litigants to find a lawyer to represent them because they fail to meet something as simple as properly serving a defendant.

    Remember, drafting an inartfully pleading is one thing, failing to follow the rules of civil procedure are something all together. Judges can't advise a pro se as to how to follow the rules over and over and over when a pro se litigant just doesn't understand.

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  • How should I begin the counting of statute of limitations for a personal injury in California?

    The date of accident is June 18, 2014. Should I start counting the 2 years from June 18, 2014 or June 19, 2014? Should I include the date of accident in the counting or begin the day of counting after the accident?

    Ernie’s Answer

    I agree with my colleagues. If you are over 18, your Statute of Limitations is 2 years from the date of the accident. Simply stated, the last day to file your lawsuit is June 18, 2016, per CCP Section 335.1. If on a weekend / holiday, you have until the next business / court day.

    Note, if you are under the age of 18, then CCP 335.1 Section is tolled until your 18th birthday, per CCP Section 352. That means, a minor who is involved in a personal injury, excluding medical malpractice, has until their 20th birthday to file a lawsuit.

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  • Do we have to pay the hospital bills out of our settlement or can we take care of them on our own at a later time.

    My husband, son & I live in an apartment building. Most of the time the locks on the entry gate to the building didn't work or just weren't there. We complained about it a few times over the course of a year. But it wasn't a huge deal really, we l...

    Ernie’s Answer

    The medical bills will, and should be, paid out of any settlement or award that your family might obtain. With that said, my previous colleagues have already explained that your lawyer should work to reduce those bills for your family in order to keep as much money in your pocket.

    It seems to me that you should be having a conversation with your lawyer in regards to damages and an explanation of how they are valued. The medical bills will certainly be included , but in addition, there might be a demand for pain and suffering, loss wages, and even loss of future loss wages.

    In a perfect world things like this do not happen. Unfortunately it is not, and monetary compensation is the often the only way to put a victim as close to where he/she was before an incident occurred. Therefore the compensation should not leave you broke and helpless.

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  • Can the marshals make me move out if I haven't got an ud served to me at all

    would it be legal to have this done without me being notified

    Ernie’s Answer

    With a UD, the rules must followed to the letter. This means that a landlord must follow every single step of a UD without mistake. One of the big mistakes I have seen are the time constraints regarding notice and filing the UD.

    I suspect that a court would not allow a judgment against you without you ever receiving a notice of the UD. I can't imagine any court proceeding a lawsuit against a person, without the person being aware of the suit. You have a right to defend and to confront the accusing party.

    With that said, the landlord cannot be barred from lawsuit simply because the tenant evades his efforts of service or notice of the lawsuit. The landlord also has remedies for that by allowing various methods of service. Of course for the court to proceed and enter a judgement, he would have to prove that he/she complied with the service requirements.

    Of course I am speculating about the following, but it seems to me that you might not have been PERSONALLY SERVED, but you might have been served by some other process (maybe someone who lives with you was given the notice).

    You need to talk to a lawyer in your area and determine if you were in fact served a notice of the UD. If not, then you need a lawyer ASAP.

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  • Can I extent my stature limitation for my case?

    My stature limitation for my case will run in a next week. It was delayed by one lawyer. Since he took my case, he never replied my call or email for four months. Finally, I sent him a legal language, and he found an excuse to drop my case. Som...

    Ernie’s Answer

    There are very few circumstances in which you can toll (delay/extend) a Statute of Limitations. What you have described above is not a fact pattern where you would be successful in doing so. You need to file your lawsuit immediately. DO NOT DELAY. FILE IT ASAP.

    After you file your suit, you need to find another lawyer to take your case.

    I would also advise discussing the details of your previous lawyer's actions as you may now have a claim for malpractice against him... especially if you can prove that he has a relationship with the Defendant and willfully failed to file, or delayed the filing of, your lawsuit.

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  • Can I take two girls that backed out of taking over our lease to small claims court?

    They studied abroad this semester in China, my current roommate and I have been in contact with them the whole semester and they assured us numerous times not to find someone else to take over the lease. They also told us they would have all of t...

    Ernie’s Answer

    You can take them to small claims, but the court will never order specific performance of the "agreements" you all had. You might be able to argue under some theory that you basically relied on their promise to your detriment and did not give up your lease to other tenants. But you need to mitigate your damages and find replacements right away. Your only damages, or compensation, would be the rent you have to pay from the time they backed out until you find new tenants to take over your lease.

    These are difficult things to prove as the truth of the matter is there was never a contract, only the promise to enter into one. Might not be worth the time and energy as your actual damages should be nominal.

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  • Car Accident Person who hit me is now lying!

    I was involved in a car accident. A person(now a liar) rear-ended my car and made my car collide into the other car in front of me. I was a complete stop. & had my foot on the brake I had two passengers in my car. My car has damage from the re...

    Ernie’s Answer

    First, talk to you lawyer about the next move.

    As an aside, I can tell you from having worked in the insurance industry before i began my law career that the person who rear-ended you and is now allegedly changing his story is not the ONLY fact that is hurting your case. It is also the person in the front who says they felt TWO impacts, and since it is in the police report, this means that this statement was likely made when the accident was freshest in his memory. Unfortunately, TWO impacts in a 3 car rear-end style accident are almost always the car in front getting rear-ended by a middle car (in this case you) IMPACT 1, and then the middle car getting rear ended by a 3rd car (which pushes the middle car into the front car again) IMPACT 2.

    To make things worse, you yourself stated that the damage is not proportionate. That is to say that the front of your car has more damage than the rear... this would tend to support the notion that the frontal impact of your car was of greater delta V than the impact to the rear... in theory, if the rear of your car was hit so hard as to push you into a car in front of you, most of the energy from that collision would be absorbed by your car and you would hit the car in front of you with lower delta V relative to the the delta V of the rear end impact...

    I am not calling you a liar, I know that each and every accident happens differently. However, you need to discuss this with your attorney, I am fairly certain that he is fully aware of all of the challenges I have described above and is working on the next move that is in your best interest.

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  • What do i do if i receive an unlawful detainer by mail after i moved out. The letter is dated on the 16 and i was out by the 13.

    It was forwarded to a different mailing address from thr post office per my adress change.

    Ernie’s Answer

    There are important parts missing to your story. The fact that you received notice of the lawsuit presumably means that at some point, while still in the unit, you received a notice to "pay or quit". If you didn't, this is a relatively simple issue to address with a motion to quash for improper notice. Procedure is VERY important in an unlawful detainer action. IF you did get notice, and you were not out by the date to pay or quit, then the cause of action for a UD arose and different steps will be followed. But like I said, we need more facts.

    Start from the beginning of the dispute with your landlord, and give dates (as best you can) for a more appropriate answer.

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  • Question: 3 days notice to quit or pay (San Francisco Property) San Francisco, CA

    I have 2 tenants in the same rental lease contract in San Francisco house. They refuse to pay rent. I plan to serve them 3 days notice. My question is: Can I serve them a three days notice with all the name there. Or I have to serve them individ...

    Ernie’s Answer

    • Selected as best answer

    California Code of Civil Procedure 1161 - 1162 gives you the guidelines for beginning and completing the eviction process (unlawful detainer)

    Per the code section, no mention is made in regards to serving multiple tenants on the same lease with individual notice. With that in mind, the court will look to the notice to ensure full compliance with the rules. Any procedural mistake will be grounds for a motion to quash notice to be granted, and you will have to begin the process again, to remedy any deficiencies.

    With 2 tenants, on the same lease, I would say it is best to cover all your bases. A court will not penalize you for giving notice in abundance, but it will certainly penalize you if it can be argued that notice was not given.

    You should be fine to create a single 3 day notice to pay or quit which includes the names of both of your tenants. However, I would ensure that each tenant is served the notice. If you choose personal service, have each tenant served personally. If you choose to post and mail, make sure you mail the notice to each tenant, in addition to the notice posted on their door. When you file the UD, after the appropriate 3 days after service, or 3 days after the notice is posted and mailed, attach both proofs of service to the complaint.

    You want to eliminate the possibility that either tenant would be able to claim they were not served properly. A court may find that a single notice to both tenants is sufficient, but it will not fault you for covering your bases and serving each tenant with proper notice individually.

    The UD action is a very tricky proceeding that must be done per the code with no exceptions. Below is a link that will help you ensure that your notice is not only proper, but includes the appropriate information. Any mistake on the Landlord's part, procedurally, will be grounds for a motion to quash.

    http://www.dca.ca.gov/publications/landlordbook/terminations.shtml#properserviceofnotices

    this is not an end all be all publication. If you have further questions regarding this matter, it would be wise to consult an attorney who specializes in these matters.

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  • Small Claims: Plaintiff Burden Of Proof: What does this really mean for a Tenant suing a landlord?

    Its hard for me to understand realistically that depending on if the tenant sues the landlord for failure to return the deposit or if the landlord sues the tenant for damages that the side that brings the suit really has a tougher burden to proof ...

    Ernie’s Answer

    It may help to understand "burden of proof" as follows.

    The term "burden of proof" refers to the standard that that has to be met by the side bringing the action in order to prove their case.

    I am sure you are familiar with the term "beyond a reasonable doubt". That phrase is the burden of proof that must be met in a criminal matter. In other words, the state, must prove their case to the standard of being beyond a reasonable doubt, that what they are alleging is true.

    In a civil case, that standard is lower and is described with the term "by a preponderance of the evidence". That means that the side bringing the action must prove a fact and or damages by standard that what he is alleging is more likely than not, to be true. (that his allegations are 50.1% likely to be true, as opposed to 49.9%)

    Now, that standard, or burden of proof, is set for the type of trial. It doesn't change, in your example, if a landlord brings an action against a tenant or if a tenant brings an action against a landlord.

    Additionally, the burden of proof ALWAYS starts on the side bringing the law suit, or making the allegations. It only makes sense that if a landlord is suing a tenant for violating the lease agreement, that the LANDLORD be forced to prove up his case. If it were the other way around, and the landlord could sue for a lease break without having to prove his case, but rather the tenant had to prove he didn't violate the lease, just imagine the flood gates that would open... everyone would sue for everything because you have nothing to lose. the fact that the burden of proof begins with the Plaintiff (the party bringing the lawsuit) serves as a deterrent for frivolous lawsuits.

    I know you are wondering why I said that the burden begins with the plaintiff... the burden of proof can shift to the defendant if the plaintiff is successful in proving his case. A defendant might have defenses and in asserting those defenses must meet the burden of proof. My example about the lease violation, once the landlord meets his burden of proof that the lease was in fact violated, the tenant (defendant) has an opportunity to assert defenses (think of them as excuses for the lease violation, reasons why even though the lease may have been violated, it was excusable) and in proving his defenses, must meet the same burden of proof. (in this case it would be a preponderance of the evidence).

    So, in short, it doesn't matter if the landlord sues or if the tenant sues, the burden of proof would be the same in either circumstance. The reason you might say the suing party has the "tougher burden to prove the case" is because they actually have the burden to prove their case or to prove what they are saying is true, or more likely to be true than not.

    I hope this helps and doesn't make murky waters murkier.

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