Damian R. Castaneda’s Answers

Damian R. Castaneda

San Jose Litigation Lawyer.

Contributor Level 6
  1. Does the tenant have to give notice at the end of their rental agreement?

    Answered about 1 year ago.

    1. Damian R. Castaneda
    2. Brad S Kane
    2 lawyer answers

    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...

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

    Answered about 1 year ago.

    1. Michael Raymond Daymude
    2. Damian R. Castaneda
    3. Sagar P. Parikh
    3 lawyer answers

    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...

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  3. Process serving

    Answered about 1 year ago.

    1. Damian R. Castaneda
    2. Robert Bruce Kopelson
    3. Stephanie Erin Story
    4. Robert Samuel Hoover
    4 lawyer answers

    DEFENDANT’S REFUSAL TO ACCEPT SERVICE. Actual physical delivery of service of a summons and complaint can be prevented by a stubborn defendant. The cases recognize this by answering this question: What attempted delivery is sufficient when it occurs in the presence of a defendant who refuses to accept the paper? In Stafford v. Mach (1998) 64 CA4th 1174, 1183, a process server made a 6th attempt at personal service at defendant’s residence. A person (the defendant) answered the door, but...

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

    Answered about 1 year ago.

    1. Damian R. Castaneda
    2. Sagar P. Parikh
    2 lawyer answers

    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—...

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

    Answered about 1 year ago.

    1. Christine James
    2. Anthony Allen Roach
    3. Damian R. Castaneda
    4. Robert Bruce Kopelson
    4 lawyer answers

    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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  6. Is it legal for the landlord to refuse renewal of a lease when the lease went from 1 year term to month-to-month bases?

    Answered about 1 year ago.

    1. Deian Valentinov Kazachki
    2. Damian R. Castaneda
    3. Brandy Ann Peeples
    3 lawyer answers

    RENEWAL PROVISIONS Unless the lease automatically renews or has an option to renew, it ends on the stated expiration date. (Abrahamson v. NME Hospitals, Inc. (1987) 195 CA3d 1325—no “wrongful termination” action for landlord's failure to renew expired tenancy). If a tenant stays past the expiration date, it's under a new tenancy, either as a “holdover” tenant or under a new express or implied agreement. Leases often provide for renewals or options to renew. If not stated in the lease,...

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  7. Can I file a motion quash?

    Answered about 1 year ago.

    1. Anthony Allen Roach
    2. Robert Bruce Kopelson
    3. Damian R. Castaneda
    4. Ripal Patel
    4 lawyer answers

    EVICTION ACTIONS: WHY DOES THE COURT MAIL YOU A NOTICE OF THE LAWSUIT? IS THIS SERVICE? The answer to why you received this notice from the court can be found in section 1161.2(c)(4) of the California Code of Civil Procedure. Here is what that section requires. Within 24 to 48 hours (excluding weekends and holidays) after an unlawful detainer complaint is filed, the court clerk must mail notice to each defendant named in the complaint to the address provided in the complaint. (CCP §1161....

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

    Answered about 1 year ago.

    1. Christine James
    2. Damian R. Castaneda
    2 lawyer answers

    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...

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

    Answered about 1 year ago.

    1. Robert Miller
    2. Damian R. Castaneda
    2 lawyer answers

    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, §...

    1 lawyer agreed with this answer

  10. Can I get help to write a appellate brief? What if I can't write a brief?

    Answered about 1 year ago.

    1. Kelvin P. Green
    2. Anthony Allen Roach
    3. Herb Fox
    4. Patrick G. Davidson
    5. Damian R. Castaneda
    5 lawyer answers

    You can find sample appellate briefs here http://www.californiaappeals.com/sample-winning-briefs.html. The subject matter is not unlawful detainer. If you have to do it yourself, here are some great unlawful detainer books for you to research at the law library: "California Eviction Defense Manual" by Myron Moskovitz (Continuing Education of the Bar) "California Practice Guide: Landlord/Tenant" (The Rutter Group) California Landlord-Tenant Practice (Continuing Education of the Bar)...

    1 lawyer agreed with this answer