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Nicholas John Scardigli

Nicholas Scardigli’s Answers

49 total

  • Can a defendant file a motion to reconsider after they lost their appeal in Small Claims Court?

    Defendant was ordered to pay $1500 at first hearing. He appealed and a Trial de Novo was set. He lost the case again and now he is ordered to pay $10,000.

    Nicholas’s Answer

    • Selected as best answer

    The superior court's judgment following a trial de novo on a small claims appeal is final and nonappealable, pursuant to Code of Civil Prodecure section 116.780(a). Consequently, the judgment is not subject to post-judgment attack, such as a motion for new trial, a motion to vacate, or a motion for relief from judgment.

    However, there is a split in California case law as to whether a petition for rehearing can be granted.

    In exceptional circumstances that has certain public policy or legal implications, the appellate division can transfer a case to appellate court or entertain a petition for extraordinary write. That said, it is highly unusual and limited to unique cases.

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  • Is it legal for roomates to write your name in print on a document stating you're breaking a lease?

    At the end of November my roomates broke our year lease without giving me any kind of notice til a week later. Told me I had til the end of the 3 weeks to move all my belongings out of our apartment. They printed my name on a paper to o...

    Nicholas’s Answer

    Based on the information you've provided, it may indeed have been illegal for your roommates to sign a document without your knowledge or permission. For instance, California Penal Code section 470 defines "forgery" as signing the name of another with the intent to defraud, knowing that he or she has no authority to do so.the intent to defraud. However, whether this particular situation constitutes forgery depends on a number of things, for instance, the nature and effect of the document. That said, it is highly unlikely that - even if a crime has been committed here - that it would result in a criminal prosecution.

    Whether any civil laws may have been violated is not as clear, as I don't believe California law allows for a cause of action for "forgery." If a cause of action exists, it is likely one of fraud (California Civil Code section 1710). Fraud causes of action can be complicated and require a relatively in depth factual analysis, best suited for an attorney.

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  • Received a letter asking for a payment to avoid civil action, what should I do?

    The letter is asking for $350 within 20 days, they threaten to then concider filing a civil lawsuit under Cal. Penal Code 409.5. Merchandise that I walked out of the the store with was less than $5. They refused payment for the item & the police w...

    Nicholas’s Answer

    I believe you meant to refer to Penal Code section 490.5, not 409.5. An Avvo attorney has written a useful article on this issue. It can be found here:

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  • Small Claims Court does not allow attorneys. But does the Appeal to that court allow attorneys?

    Small Claims Court does not allow attorneys. But does the Appeal to that court allow attorneys? When you sue in small claims court defendant also cannot have an attorney. But If plaintiff wins, the defendant is allowed to Trial De Neuvo i...

    Nicholas’s Answer

    A bit of clarification regarding the previous answer. While it is true that the court, on a after a trial de novo to the superior court, can award up to $1,000 for reimbursement of attorneys fees (plus up to $1,000 for lost earnings and transportation expenses), the court may only do so if it determines that the appeal was "without substantial merit" AND not in good faith, but was intended to harass or delay. California Code of Civil Procedure section 116.790.

    Absent such a finding, the superior court is limited to awarding either party, in the court's discretion, up to $150 for reimbursement of attorneys fees (plus up to $150 for lost earnings and transportation expenses, "where necessary to achieve substantial justice." California Code of Civil Procedure section 116.780(c).

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  • If store security said he's making a citizens arrest for shoplifting can that charge get changed to burglary?

    $90 worth merchandise was taken out store without paying for it

    Nicholas’s Answer

    If criminal charges are filed, the District Attorney's office will ultimately decide what those charges are. That said, burglary technically relates to a crime involving a residential dwelling, so it would be an unlikely charge for a theft from a store. Instead, the charges, if any, would likely be some level of theft (for example, petty theft or grand theft), depending on the value of goods at issue.

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  • Can a 30 day hold be done on my vehicle from a sobriety checkpoint?

    I was not drunk, although my dl was recently suspended from a dui. I also live in the same town so I could have parked my vehicle or had someone get it.

    Nicholas’s Answer

    Unfortunately, yes, pursuant to California Vehicle Code section 14602.6(a)(1), which states, in relevant part: "Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked ... the peace officer may [ ] immediately arrest that person and cause the removal and seizure of that vehicle ... A vehicle so impounded shall be impounded for 30 days."

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  • How to get my property back?

    In march the police entered my apartment with a warrant, they put me in handcuffs and took me in for questioning. I was let go later that day. They took 2 of my laptops and 2 of my phones. I kept in contact with the detective and was told it was b...

    Nicholas’s Answer

    It depends on a number of things, for instance, whether your property is related to an ongoing criminal investigation or open criminal case. Also keep in mind that even if the DA's office has decided not to file charges at this time, it may decide to do so later.

    You do have an option of filing a motion requesting the return of your property. However, given your concerns about calling the detective again, which may be well-founded, it would be wise to contact a criminal attorney before taking any action. A criminal attorney may be able to advise you whether seeking recovery of your property is in your best interests in terms of avoiding possible criminal prosecution.

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  • What can i do if I feel I an being stalked?

    I am involved in a lawsuit and I feel there are people stalking me/following me. It has been going on for a while and lately, it is getting scary because these people come up so close to me to the point where they are almost touching me. And they ...

    Nicholas’s Answer

    With the limited information you've provided, it is difficult to determine what, if any, legal options are available to you.

    For instance, if these people have conveyed a threat to you, this may be a criminal matter (for instance, California Penal Code section 646,9 makes certain manners of "stalking" a crime). Obviously, if you believe you are in imminent danger, you should get to a safe place and contact law enforcement immediately.

    Absent imminent danger, it would be wise to consult with an attorney as soon as possible to discuss your options, avoiding contact with these people in the meantime. An attorney might be able to determine whether these people are involved with your lawsuit and if so, what steps you can take to stop or regulate their actions.

    In any event, your safety is paramount, so handling this in a swift manner is critical. Best of luck.

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  • Where in Superior Court do I need to go or call and find out that if legal action has been filed against me.??

    Where in Superior Court do I need to go or call and find out that if legal action has been filed against me.?? Or if there is a Proof of Service with the court, but I have not been properly served??

    Nicholas’s Answer

    If you know in which Superior Court the case the suit would be filed (for instance, Los Angeles County Superior Court), you could use that court's online case search website, if one exists for that county, to search whether your name is listed as a party in an pending case. If the court doesn't have a online search option, you could contact the court clerk's office and inquiry about any filing against you.

    If you don't know which court, but know who is bringing the action against you, you might consider contacting that party or his/her attorney and asking whether an action has been filed and where.

    In any event, it would be smart to consult with an attorney as soon as possible if you believe a legal action has or is likely to be filed against you.

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  • What does it mean when a case been removed

    case been removed but still going to court case number are the same except the last to are replaced with rm

    Nicholas’s Answer

    In common legal parlance, a case is removed when a defendant in a state court civil action (for instance, a civil lawsuit filed in Los Angeles County Superior Court) is "removed" to a federal district court, typically on grounds of either federal question jurisdiction or diversity jurisdiction. Removal can be challenged by filing a motion for remand with the federal district court. However, please be aware that strict deadlines exist to file such a motion.

    That said, if you don't already have an attorney, it would be wise to consult with one as soon as possible to determine your options.

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