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Damian R. Castaneda

Damian Castaneda’s Answers

17 total


  • Do I need an Attorney regarding this Quit Claim Deed?

    My father died in July 2011. He lived with his girlfriend and they had a property as joint tenants - apparently the title company neglected to put the title to the property as joint tenants with right of survivorship - but this has not been proven...

    Damian’s Answer

    You need a lawyer. If you sign the quit-claim deed, you are giving up your right to money that you are likely entitled to as an heir.

    Statute of Limitations:
    There are deadlines to file lawsuits or make claims. Those deadlines are called statutes of limitations. If those deadlines are missed, you can argue that the person no longer has the right to make a claim against the estate or sue you.

    Section 366.3 of the California Code of Civil Procedure requires that an action against an estate be commenced within one year after the date of death to enforce a claim that arises from an oral or written promise or agreement with a decedent for distribution from an estate. Probate Code section 9000 defines a “claim” as a demand for payment for anything “due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated” for “Liability of the decedent, whether arising in contract, tort, or otherwise.” It defines a “Creditor” as a person who may have a claim against estate property..

    Here, the house was sold. So the only issue is entitlement to payment of money. The girlfriend wants money for 4 years of mortgage payments. Although you didn’t’ mention it, you may also be seeking money for the closing costs and deposit.

    But since your dad died 4 years ago, the girlfriend's claim for reimbursement should be barred by the statute of limitations if she did not file a claim with the estate within 1 year after his death.

    Let’s assume that she timely fled her claim. She would have to prove that there was an implied agreement that your dad would pay for half of the mortgage. It’s possible that they agreed that she pay the mortgage, and he pay for other expenses. So it’s possible that he had no liability for the mortgage payments. But even If we assume that your father had liability for 1/2 of the mortgage payments, the girlfriend should only be entitled to deduct 1/2 of the mortgage payments from the sale proceeds. If those payments exceeded the sale proceeds, she would have to have filed her claim for reimbursement within 1 year of his death.

    One odd thing is that you don’t say who purchased the property. I assumed it was sold to a third party. But then you say that the girlfriend is asking for your share of the mortgage payments for the past 4 years. That doesn’t make sense because if the house was sold to a third party, there were no mortgage payments for her to make for the last 4 years. When you talked about her paying for the deposit and closing costs, I again assumed that you are referring to the time when she purchased the property with your father. But it’s unclear because since you say that she wants reimbursement for the last four years of mortgage payments, it seems that she is the one who purchased the property.

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  • I filed an answer and received a first amended complaint from the Plaintiff's attorney. Is that allowed without leave of court?

    I filed an answer, cross-complaint, and propounded discovery all around the same time. Plaintiff's attorney responded with a FAC. Can I demurrer the FAC?

    Damian’s Answer

    If it was served after your answer was filed, you would file a motion to strike. You file motions to strike when pleadings are not written in conformity with court rules. Technically, you would be right. But as my colleagues said, the court would likely grant leave anyways.

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  • I want to subpeona information from Fannie Mae, but don't know how to locate the person within Fannie Mae that should be served.

    I have tried to get information form Defendant (bank-foreclosure fraud) about a payment made by Fannie Mae to the bank. I am also trying to obtain information about Fannie Mae guidelines for modification that the bank used. The bank has claimed 3r...

    Damian’s Answer

    Fannie Mae's name is "Federal National Mortgage Association."

    It was very tough to find the answer to this question. The normal place to look for a registered agent for service is the California Secretary of State's Office. But it has a dissolved status. So I don't know if the agent listed on the site is current.

    So instead, I researched court documents to find a proof of service against them. I found a recent proof of service with personal service on July 1, 2013. The case is Eddie Valencia vs Federal National Mortgage Association, Los Angeles Superior Court case number CV13-4307-PA. The plaintiff personally served Barbara Sloan as the authorized agent for service. The address listed for Ms. Sloan on the proof of service is 8200 Jones Branch Drive, McLean, Virginia 22102.

    The process service company was ASASP Attorney Service, 3607 West Magnolia Blvd., Suite 8, Burbank, CA 91505, (818) 563-5437. Their website is asapattorneyservice.com. The fee for service listed on the proof of service is $95.

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  • As the defendant, I am in the process of defending, pro per, a habitibility and retaliation UD claim against a large corporation

    The plaintiff falls under the truest form of "slumlord," and there are many facets to the case. I am having a hard time finding an attorney to take the case because of the potential costs associated with proving mold and poor indoor air quaility. ...

    Damian’s Answer

    How many special interrogatories can you ask in an Unlawful Detainer (Eviction) action?

    Parties to an unlawful detainer are also bound by the usual discovery limitations. There is a rule known as the “rule of 35.” This rule limits the number of specially drafted interrogatories and requests for admission that you can ask. (CCP §§ 2030.030 [interrogatories], 2033.030 [admissions].) The limit is that you can ask a maximum of 35 special interrogatories. But a party may ask more than 35 specially prepared interrogatories simply by attaching a declaration in the form required by statute stating why more are necessary. (See CCP §§ 2030.040(a), 2030.050.)

    FORM INTERROGATORIES DO NOT COUNT TOWARDS THE RULE OF 35

    The big advantage of official Form Interrogatories is that they are not subject to the “Rule of 35” applicable to specially prepared interrogatories. A party may ask “any additional number of official form interrogatories ... that are relevant to the subject matter of the pending action.” (CCP § 2030.030(a)(2).)

    THE RULE OF 35 DOES NOT APPLY TO UNLAWFUL DETAINER CASES

    For cases under $25,000 (limited civil cases), a party in a civil action cannot ask more than 35 questions combined. That means that the total number combined of form interrogatories, special interrogatories, requests for admissions, and request for documents cannot exceed 35 requests. On noticed motion, a party in a limited civil case can ask for relief from this limit. But this discovery limitation does not apply to unlawful detainer actions. California Code of Civil Procedure section 91(b) specifically exempts unlawful detainer actions from the limitations on discovery.

    FINDING AN ATTORNEY

    If you are having trouble finding an attorney, don't get discouraged. Keep trying. You might have to call 50 lawyers before you find the right one.

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    Please read my disclaimer below. Although I provide legal information, this is not legal advice.

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  • Must you specify in Complaint amount of punitive damages sought for tortious interference with contract?

    When you ask for punitive damages when pleading tortious interference with contract, must you specify the amount of punitive damages you seek, or simply request 'punitive damages according to proof' in the Complaint? A combined reading of Cal Civ ...

    Damian’s Answer

    You can ask for punitive damages at the time you serve the complaint so long as you state the amount you are seeking in a separate statement of damages. You can create your separate statement on pleading paper. But I recommend that you instead use Judicial Council form CIV-050. In response to your question, I created a guide titled, "How do you state the amount of punitive damages in your lawsuit?" It's too long to fit in this response, but it's detailed with cases and statutes that supports this answer.

    Here's a summary of my guide. After the defendant does not timely respond to the complaint, the safest practice is to then personally serve the defendant with a Statement of Damages using Judicial Council Form CIV-050. If you end up taking a default, you are taking an unnecessary risk if you state the amount of punitive damages in the complaint or if you concurrently serve the Statement of Damages with the complaint.

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    Please read my disclaimer below. Although I provide legal information, this is not legal advice.

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  • Ud case, they give me the ud Simmons,but the last page is notice of order to show cause, wut is this?

    "an order to show cause hearing re: failure to prosecute has been set as follows Date: Apr 02,2014 at time: 8: 30 in dept A." Does this mean my court date is till apirl 2014? Do I have to still answer ? (my defense is estoppel ) Can...

    Damian’s Answer

    WHAT IS AN OSC FOR FAILURE TO PROSECUTE?

    A plaintiff is required to serve the unlawful detainer complaint, file a proof of service, and request a trial date in a diligent manner. (CCP §§ 1170, 1170.5 [procedure to request trial date.) If plaintiff unreasonably delays action, the court may set a hearing called an Order to Show Cause for the plaintiff's failure to prosecute the case. At the hearing, the plaintiff must explain the reason for the delay. The court can issue monetary sanctions or dismiss the case. (CCP § 583.150.) For example, in San Diego a judgment or dismissal must be entered within 45 days after the unlawful detainer case has been filed, or the case will be placed on calendar for a hearing to show cause why the case should not be dismissed for lack of prosecution. The time limit to do these things should be stated on the paperwork that the court provides to the plaintiff at the time of filing. The most likely reason for an OSC is failing to serve or failing to request a trial date.

    AFTER SERVICE OF THE COMPLAINT, A TENANT'S RESPONSE IS ORDINARILY DUE IN 5 CALENDAR DAYS

    Ordinarily, the tenant's response is due within 5 calendar days after service of the unlawful detainer summons and complaint. The five-day period includes Saturdays and Sundays but excludes other court holidays. But, if the fifth day falls on a Saturday or Sunday, the response deadline is extended to the next court day. (CCP § 1167.)

    So an answer to the unlawful detainer complaint must be filed within this five-day period unless, before expiration of the five days, the tenant has filed some other authorized responsive pleading that temporarily excuses the duty to answer (motion to quash, demurrer, motion to strike). (CCP §§ 1167, 1167.3.)

    If you have not been served, the plaintiff may have still filed a proof of service with the court stating that you were served. This happens more often than you would think. Defendants claim they were never said, and yet the plaintiff claims they were. The safest thing to do is to go to the court and check your court file. You won't be able to do this online because unlawful detainer action information is not available online until 60 days after the action is filed. (CCP § 1161.2.) When you go to the court, you must bring your court notice which notified you of the action and ID.

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  • How to remove a person living in your apartment and they are not on the rental agreement, but has mail delivered at my apartment

    I manage an apartment building. I have a tenant who recently let her boyfriend stay with her. He is not on the rental agreement. He's an unauthorized person. He's been staying with her for 2 months, now she wants him to leave and he refuses becaus...

    Damian’s Answer

    IF YOU ARE THE ONLY ONE ON THE LEASE, DO YOU HAVE THE RIGHT TO KICK OUT YOUR FRIEND, BOYFRIEND/GIRLFRIEND, HUSBAND/WIFE WITHOUT NOTICE?

    If you allow someone to live with you, that person may have rights as a subtenant. A 30 notice of termination followed by an unlawful detainer action against the person by the tenant may be the safest course to take. The police will probably say it's a civil matter. Here’s why.

    A PERSON NOT ON THE LEASE MAY HAVE RIGHTS AS A SUBTENANT

    A tenancy at will—although consensual in nature—is not based on an express rental agreement. It’s created when a tenant takes possession of the premises with the landlord's permission, but for no stated term and without provision for payment of rent. (Covina Manor, Inc. v. Hatch (1955) 133 CA2d Supp. 790, 793.) In this case, your tenant could be considered the boyfriend’s landlord. Upon agreeing to pay rent to the tenant, a roommate may become a subtenant on a month-to-month basis. (Valley Investments, L.P. v. BancAmerica Comm'l Corp. (2001) 88 CA4th 816, 823.)

    “At will” tenants cannot be evicted instantaneously. The landlord's termination must be preceded by 30 days' written notice (CC § 789) although apparently no notice is required by tenants seeking to terminate a tenancy at will (see Miller & Desatnik Management Co., Inc. v. Bullock (1990) 221 CA3d Supp. 13, 18.) As a subtenant, the roommate's rights are against the tenant-sublessor. A subtenant who defaults in rent due under the sublease may be evicted by the tenant in an unlawful detainer.

    RENT CONTROL LAWS MAY PROTECT A PERSON NOT ON THE LEASE

    Many rent control laws extend their rent control and eviction control protections to lawful occupants—whether or not those occupants have signed rental agreements. (See Santa Monica Rent Control Charter Amend. § 1801(g) & (i).) Under such an ordinance, a “roommate” may have the rights of a “tenant” where the roommate's occupancy was approved by the landlord—expressly or impliedly. (DeZerega v. Meggs, supra, at 42.)

    In DeZerega, a roommate whose occupancy was expressly approved and authorized by the landlord was entitled to protection under the Berkeley eviction control ordinance even though the tenant named in the lease had vacated. It was immaterial that the tenant's lease prohibited assignment or subletting. Even assuming the roommate could be viewed as a subtenant, the lease expressly authorized “roommates” and the ordinance expressly extended its tenant protections to “any other person entitled to the use or occupancy” of the rental unit.

    A LEASE PROHIBITING ROOMMATES MAY NOT BE ENFORCEABLE

    If the lease requires landlord consent for a sublease, and the withholding of consent is subject to an express or implied “reasonableness” standard, tenants who feel that consent is being withheld unreasonably may “take their chances” and enter into the proposed sublease despite the landlord's objection. If the landlord brings an unlawful detainer after the tenant transfers possession, the tenant may then defend the suit on the ground that the sublease was not unauthorized because the landlord acted unreasonably in withholding consent. But the tenant bears the burden of proving the landlord acted unreasonably. (CC § 1995.260; Kendall v. Ernest Pestana, Inc. (1985) 40 C3d 488.)

    READING CASES AND STATUTES

    You can read the cases cited to in this response by going to www.scholar.google.com. You can read statutes at www.leginfo.ca.gov.

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    Please read my disclaimer below. Although I provide legal information, this is not legal advice.

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  • What is the legal definition of 'within 30 days' in the CCR's, Does 'day one' begin the day the document is submitted?

    Fight with HOA

    Damian’s Answer

    1. GENERAL RULE: EXCLUDE THE FIRST DAY, INCLUDE THE LAST DAY

    The CCR's might state how to calculate time. If not, the law for homeowners associations is governed by the Califonria Civil Code. (CC, § 1350 et seq.) Section 10 of the Civil Code states that the time within which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and then it also is excluded. (See also Code of Civil Procedure § 12 and Gov. Code, § 6800.) Under the rule, the first day of the signing of an instrument or the happening of an event is excluded, and the counting of the time period starts on the following day. (Ziganto v. Taylor (1st Dist. 1961) 198 Cal. App. 2d 603 (construing CCP, § 12).

    2. EXCEPTIONS TO THE GENERAL RULE

    This is the general or ordinary rule to compute time. (Payne v. Hunt (1932) 214 Cal. 605.) Before there is an exception to the general rule, the intention must be clearly expressed to provide a different method of computation. (In re Anthony B. (1st Dist. 2002) 104 Cal.App.4th 677.) For example, as to an exception to the general rule of exclusion of the first day, see Fish & Game Code, section 11 which provides that when the doing of an act between certain dates or from one date to another is allowed or prohibited in that code, the period of time indicated includes both dates specified and that the first date specified designates the first day of the period, and the second day specified designates the last day of the period. For this reason, the CCR’s should be read for an exception to the general rule.

    The general rule of exclusion of the first day and inclusion of the last is not merely a rule of procedure for the court system. It applies to any act required by law unless the particular statute specifically provides otherwise. (Mox, Inc. v. Leventhal (3d Dist. 1928) 89 Cal.App. 253.) It also applies equally to acts permitted by law. (Scoville v. Anderson ((1901) 131 Cal. 590.) That means that it applies to CCR’s unless the CCR’s themselves provide an exception.

    3. DATE CALCULATOR

    A great place to calculate time which does not include the first day and includes the last day is http://www.timeanddate.com/date/dateadd.html. If the last day falls on a weekend or holiday, you will have to add those days yourself.

    4. READING CASES AND STATUTES

    You can read the cases cited to in this response by going to www.scholar.google.com. You can read statutes at www.leginfo.ca.gov.

    AVVO lets you vote for best answer. Please cast your vote for the attorney you believe gave the best answer.

    Please read my disclaimer below. Although I provide legal information, this is not legal advice.

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  • Does the tenant have to give notice at the end of their rental agreement?

    I am the landlord. I have lost the actual year lease that my tenant signed and he knows it. But even on a verbal agreement, am I not still entitled to 30 days notice? He emails me yesterday that he is moving out October 1st....10 days. Not even in...

    Damian’s Answer

    • Selected as best answer

    30 DAYS NOTICE BY TENANT ON MONTH TO MONTH TENANCIES
    If a tenant wants to terminate a lease, the tenant must "give notice for a period at least as long as the term of the periodic tenancy prior to the proposed date of termination." That means that a tenancy from month to month may be terminated by either party giving at least 30 days' written notice (Civ. Code, § 1946). Despite the lost lease, a landlord is entitled to 30 days notice even on an oral agreement so long as the tenant has been there for at least 30 days.

    TERMINATION ON SHORTENED NOTICE
    Legally, the renter can terminate occupancy on one rent period's notice (Civ.Code, §§ 1944, 1946, 1946.1, subd. (b), 1946.5, subd. (a).) That means that a landlord is only entitled to 30 days notice if the tenant has been in the property for at least 30 days. But parties may agree to shorter notice: "at the time the tenancy is created [the parties can agree] that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term. (C.C. 1946.)

    HOW THE TENANT MUST GIVE NOTICE OF TERMINATION
    The termination notice must be given as prescribed in Code Civ. Proc., § 1162, or by sending a copy by certified or registered mail. An electronic record may not be substituted for notice that is required to be sent under C.C.P. 1162. (C.C. 1633.3(c).) In addition, the lessee may give notice by sending a copy by certified or registered mail, or by personal delivery, to the lessor's agent to whom the lessee paid the prior month's rent (Civ. Code, § 1946).

    LOST LEASE
    Even with a lost lease, a landlord should be able to enforce a one year lease with an email, text, or document that shows the parties agreed to a one year lease.

    Without proof of a written lease, a landlord can still rely on an oral lease. Oral rental agreements have two obvious disadvantages though: They are limited in scope and are “logistically” difficult to prove. But if a landlord can prove the terms, oral leases are just as valid as written leases for terms of 1 year or less.

    PERIODIC TENANCIES vs FIXED TERMS
    A periodic tenancy differs from a tenancy for a fixed term in that a periodic tenancy continueS for consecutive periods of the same length, unless terminated by proper notice. Periodic tenancies are tenancies from month to month or year to year, as distinguished from a tenancy for only one year or one month. The periodic tenancy has no fixed term and is terminable at the will of either party.

    The most important difference between a periodic tenancy and a tenancy for a fixed term is that the estate created by a periodic tenancy does not terminate by the mere lapse of time. (CC § 1946.) The rental or lease of real property for an unspecified term is deemed to be renewed at the end of the term implied by law unless one party gives written notice to the other of his intention to terminate the hiring. (CC § 1946.) Neither party may terminate the tenancy without giving notice in advance in the manner and for the time prescribed by statute. (Camp v. Matich (1st Dist. 1948) 87 Cal. App. 2d 660, 665; Palmer v. Zeis (App. Dep't Super. Ct. 1944) , 65 Cal. App. 2d Supp. 859.)

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  • Cases defining normal wear and tear for security deposit deductions

    I am heading to small claims court to duke it out with my former landlord of over 2 years over what constitutes normal wear and tear. I do not believe the deductions she made were lawful, but I would feel better if I could refer to some court cas...

    Damian’s Answer

    I did a search using the following keywords: “ordinary wear and tear” landlord tenant

    According to Westlaw.com, the 10 most relevant cases are:

    1. Kanner v. Globe Bottling Co. (2nd Dist.) 1969) 273 Cal.App.2d 559
    2. Iverson v. Spang Industries, Inc. (1st Dist.) 45 Cal.App.3d 303
    3. Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (4th Dist) 192 Cal.App.4th 1183
    4. Granberry v. Islay Investments (1995) 9 Cal.4th 738
    5. Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116
    6. Polster, Inc. v. Swing (Second District) 164 Cal.App.3d 427
    7. Sterling v. Santa Monica Rent Control Bd. (Earhart) (Second District) 162 Cal.App.3d 1021
    8. People ex rel. Smith v. Parkmerced Co. (First District) 198 Cal.App.3d 683
    9. Connell v. Brownstein-Louis Co. (First District) 86 Cal.App. 610
    10. Haupt v. La Brea Heating & Air Conditioning Co. (Appellate Department, LA County) 133 Cal.App.2d Supp. 784

    According to Westlaw.com, the 10 most cited cases are:

    1. Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116
    2. Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129
    3. Granberry v. Islay Investments (1995) 9 Cal.4th 738
    4. Cisneros v. U.D. Registry, Inc. (Second District) 39 Cal.App.4th 548
    5. Polster, Inc. v. Swing (Second District) 164 Cal.App.3d 427
    6. Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d 19
    7. Old Republic Ins. Co. v. Superior Court (Second District) 66 Cal.App.4th 128
    8. Kanner v. Globe Bottling Co. (Second District) 273 Cal.App.2d 559
    9. Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd.
    Court of Appeal (Second District) 70 Cal.App.4th 281
    10. Iverson v. Spang Industries, Inc. (First District) 45 Cal.App.3d 303

    You can read these cases at scholar.google.com.

    I plan on writing an AVVO guide to discuss the cases. The first thing I noticed is that the cases are not very clear about saying the difference between repair and damage. It's not the courts' fault. CCP section 1950.5 is a poorly written statute. It does not provide a definition for "ordinary wear and tear." So that leaves it as a factual question for a judge or jury. Here is what one court has said about this statute:

    "The majority's observation that this statute is “no model of clarity” is a gross understatement. As Justice Gilbert said in Granberry v. Islay Investments (1984) 161 Cal.App.3d 382, 207 Cal.Rptr. 652, this statute “teeter[s] on the brink of unintelligibility.” The only reason it still teeters is because of judicial efforts to keep it alive, and these efforts have been considerable. When Justice Gilbert must begin an opinion by saying “here we attempt to make sense out of Civil Code section 1950.5,” the Legislature should realize there is a problem. When our colleague uses such language as “to further confound anyone trying to make sense out of the statute” and states that a literal reading of the statute would lead to “an absurd result,” it becomes clear the Legislature has a mandate to redraft the statute. This is not a statute that is infrequently utilized. With the possible exceptions of relationships between husbands and wives and employees and employers, *694 no relationship occurs more frequently in California than that of landlords and tenants. For this reason, the Legislature has a duty to provide statutory language governing this relationship which can be clearly understood by the affected persons. In its present form, laymen trying to read and understand this statute must easily identify with the experiences Alice found in Wonderland." (People ex rel. Smith v. Parkmerced Co. (1988) 198 Cal.App.3d 683, 693-94.)

    Although it's not authority, the California Dept. of Consumer Affairs gives specific examples of wear and tear versus damage. I provide the link below. Also, check out pages 326 of the book "Every Landlord's Legal Guide," By Ralph E. Warner et al (Nolo Press). You can read this for free at www.books.scholar.com. Or download the book for $30.

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