Skip to main content
Mark Steven Eisenberg

Mark Eisenberg’s Answers

180 total


  • If a defendant demurs on a Complaint that alleges several causes of action, and some but not all of survive the demurer...

    ...would the plaintiff be able to proceed with the lawsuit in its entirety, i.e. present evidence and call witnesses as though the entire (original) complaint were intact? Supposing a cause of action did not survive demurrer, but presenting evide...

    Mark’s Answer

    • Selected as best answer

    The facts of your case are the facts of your case, no matter how you frame or label your cause(s) of action. Therefore, not only can you present competent evidence at trial that is relevant to your case, but assuming your evidence is admitted, you can then move to amend your complaint to add whatever claims "conform to proof," e.g., match the evidence you presented at trial.

    See question 
  • In CA, am I allowed to record a phone call that I have already given consent to being recorded by the other end?

    (e.g. In a customer service call) If I call a business for customer service, or one that I contract work with, and their system tells me that my call is being recorded (and to hang up if I don't want it to be) am I then allowed to record the call ...

    Mark’s Answer

    California Penal Code section 632 makes it a crime to eavesdrop on a confidential communication, including a private conversation or telephone call, without the consent of ALL parties to the conversation. In this context "confidential" means any communication in which the parties have an objectively reasonable expectation that their conversation is private. It's a two-party consent law, meaning all parties to the conversation must give consent. While you might give your consent to the other party recording your conversation, that does not mean the other party has consented to your own recording of the conversation. To the contrary, the other party can't possibly consent to your recording if you don't disclose it. But suppose hypothetically you've already secretly recorded a conversation that was recorded by the other party with your consent. Now you're on Avvo asking if that's okay. Your argument is that the other party already knew it was being recorded and in fact announced it to you and obtained your consent to do so. They're recording it so why can't you? No harm no foul, right? And a judge has broad discretion to decide this issue. But to avoid violating the law, you should always obtain the consent of all parties to a conversation that common sense tells you is a "private" or "confidential" communication.

    See question 
  • Do I have to evict the newest tenant first?

    I have a duplex in rent controlled area of Los Angeles. I have one unit who is month to month who has been there 2 years and another who just signed a lease for 1 year. Both units have identical layout. I am going to be doing an owner occupi...

    Mark’s Answer

    For an owner occupied eviction you must evict the most recent tenant. See Los Angeles Municipal Code section 151.30(D)(2).

    See question 
  • Does this apartment contract violate California Civil Code 1950.5?

    I am preparing to move out and I had low expectations that I would get my 400$ deposit back. The landlord estimates $800 in the initial inspection and directs me to my rental contract. I notice that in the contract they do not make any allowance...

    Mark’s Answer

    I posted an answer to a similar question yesterday which I am copying here:

    California law specifically allows the landlord to use a tenant's security deposit for four purposes:
    (1) for unpaid rent; (2) for cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in; (3) for repair of damages, other than normal wear and tear, caused by the tenant or the tenant's guests; and (4) if the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear.

    A rental agreement or lease can never state that a security deposit is "non-refundable."

    Under California law, 21 calendar days or less after you move, your landlord must either:
    (1) send you a full refund of your security deposit, or
    (2) mail or personally deliver to you an itemized statement that lists the amounts of any deductions from your security deposit and the reasons for the deductions, together with a refund of any amounts not deducted.

    The landlord also must send you copies of receipts for the charges that the landlord incurred to repair or clean the rental unit and that the landlord deducted from your security deposit. The landlord must include the receipts with the itemized statement.

    See question 
  • Can landlords deduct from security deposit repairs that were made while living in the rental property?

    I am curious to see if my landlord has the right to deduct any of my security deposit for small fixes made while living in the property? I've lived here for 2 years and I'm considering moving soon. I've kept my apartment in excellent condition but...

    Mark’s Answer

    California law specifically allows the landlord to use a tenant's security deposit for four purposes:
    (1) for unpaid rent; (2) for cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in; (3) for repair of damages, other than normal wear and tear, caused by the tenant or the tenant's guests; and (4) if the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear.

    A rental agreement or lease can never state that a security deposit is "non-refundable."

    Under California law, 21 calendar days or less after you move, your landlord must either:
    (1) send you a full refund of your security deposit, or
    (2) mail or personally deliver to you an itemized statement that lists the amounts of any deductions from your security deposit and the reasons for the deductions, together with a refund of any amounts not deducted.

    The landlord also must send you copies of receipts for the charges that the landlord incurred to repair or clean the rental unit and that the landlord deducted from your security deposit. The landlord must include the receipts with the itemized statement.

    See question 
  • Do I wait for the unlawful detainer to be served to me or taped to my door?

    Unlawful detainer was sent in the mail and I went to the court monday, they said it was being reviewed by the judge to authorize the landlord to tape the notice on my door. I filled out the "Answer" and the lady at the court said there is nothin...

    Mark’s Answer

    By filing an answer to the complaint you have submitted to the court's jurisdiction. This may or may not mean that your case is 'at issue' and ready for trial setting, depending on who lived in your unit at the time of service and who was actually served. Any defects on the face of the notice of termination and/or the complaint can and should be raised at trial. UD actions, particularly in rent-controlled Los Angeles, are governed by highly technical statutory mandates that are strictly construed by the courts. You would be wise to at least consult with a landlord-tenant attorney before doing anything else.

    See question 
  • Can I dismiss current suit against def.'s & sue former attorney for malpractice as I was forced to dismiss b/c of his actions?

    I hired an attorney (now former attorney) to sue defendants over fraudulent business venture I was lured into. Lawyer didn't serve one of the defendant with any discovery & served other defendants with barely any & did not take anyone's deposition...

    Mark’s Answer

    Whether you should dismiss your current case and whether you have a case against your former attorney for malpractice are two entirely separate issues. If you feel you cannot prevail in your current lawsuit and you believe you will minimize your exposure (if that's even possible with a pending cross-complaint) by dismissing, then you should dismiss. In order to prevail in a legal malpractice action against your former attorney, you must win the 'case within the case.' It's not enough to show that your attorney failed to properly prepare, conduct adequate discovery, etc. You must prove you had a winnable case and that 'but for' your attorney's failure, you would have won. I strongly suggest you consult with an attorney who specializes in legal malpractice. Good luck.

    See question 
  • When a property manager recommends a necessary repair be made to a property and the owner won't approve, what should be done???

    I manage a substantial portfolio of properties in San Diego, CA and mold is becoming more and more of a hot button topic. The days of hiring a contractor to cut open drywall, install a couple fans and patch the wall are long gone. Asbestos and lea...

    Mark’s Answer

    I like your question. It's well thought out, articulate, and reflects a concern that in my experience is rare in property management companies. First things first: I would hire an attorney to review your entire management agreement. If you believe your current hold harmless provision is insufficient and that the owner is willing to sign a separate indemnity agreement, by all means do so. But your concern over the quality of the owner's vendors suggests the owner won't sign such an agreement. One way to add a layer of protection, CYA as you put it, is to document everything, especially when it comes to hiring outside vendors. I would take it a step further and provide the owner with a written list of 2-3 qualified (licensed, bonded, insured, etc.) vendors for each job. That way, when something goes wrong, you can point to your letter/email/text to show that you were not part of the problem. Good luck.

    See question 
  • What kind of case do i have?

    I took my father to the doctors and was told to go to the hospital for more exams and all they did there at the hospital is give him a shot for the pain and told him to exercise and drink his medications then sent home the next day my father past ...

    Mark’s Answer

    The simple answer is a lawyer who specializes in medical malpractice. Don't wait either because there is a statutory procedure you must comply with before you can file a lawsuit.

    See question 
  • This CAN'T be LEGAL: My apartment lease states I nor my heirs cannot sue landlord if I get hurt or die anywhere on the grounds.

    The exact wording is this: "Residents agree to indemnify and hold harmless the owner, its directors, officers, employees, managers and agents from any loss, liability, damage or cost they may incur due to the presence of Residents in upon or abou...

    Mark’s Answer

    Any attempt by a landlord to excuse him/herself from any and all liability arising from landlord's negligence is a violation of the warranty of habitability implied in every residential lease in California, and in most other states for that matter, and therefore is unenforceable.

    See question