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Michael Raymond Daymude

Michael Daymude’s Answers

7,774 total

  • Is it legal for beneficiary in a trust to sell their % to another beneficiary? with out asking the other beneficiaries the same

    1 successor 4 beneficiaries total of 5 in the trust. one is selling there % by california trust law don't you need to offer everybody the same request? so any deal between two beneficiaries is not a legal agreement?if the other members don't get ...

    Michael’s Answer

    Unless the terms of trust provide otherwise, the answer is yes. There is no "right of first refusal."

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  • Which proof of service is needed for a petition to confirm arbitration award?

    I have a petition to confirm arbitration award and the form to serve a summons refers only to a summons and complaint but the one for other documents doesn't seem to meet the requirements for serving a summons, which is what is called for with thi...

    Michael’s Answer

    The agreement to arbitrate will determine how and who must be served with the petition to confirm the award. If the agreement is silent, personal or substituted service is required. You do not need a summons. You cannot serve yourself. I recommend you hire a process server to accomplish the service.

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  • Can my neighbor with whom I share a community driveway install a gate blocking entry into the driveway over my objection.

    Los Angeles, Ca. I equally share a driveway with my neighbor. The purpose of our [legally] duel ownership of the driveway is to allow access to a second house situated behind both our houses. My neighbor wants to install a gate preventing free-fl...

    Michael’s Answer

    The back house probably must consent. It is unclear if your consent is required. It would depend on whether the gate would interfere with your use of the jointly owned driveway.

    Most recorded easements over a private street (driveway) are for ingress and egress and benefit all properties. You should review your deed and title insurance policy issued when you purchased the property.

    You may wish to compromise with your neighbors. The installation of a gate may increase the value of all properties. You may also wish to consult with the planning department. It is likely a permit is required and there may be conditions.

    If you are willing and able to spend several thousand dollars, you should consider a suit to enjoin the threatened action if you cannot come to a compromise.

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  • I opened a probate estate. Is there any way to compel the my brother to turn over property to the estate?

    I opened a probate estate. My brother has property belonging to my father who has passed away. My brother refuses to give it to me because he says it is his. Is there any way I can sue my brother for extra damages? I read the 850 code and it ...

    Michael’s Answer

    If you are appointed administrator by the court, you can file an 850 petition to recover property that belongs to the estate. Merely filing a petition without appointment is insufficient.

    If your brother has a legitimate claim to the property, you will only be able to recover the property if you prevail on your petition. The facts are important. For example, if your brother's claim lacks merit the court may order your brother to pay the costs of recovering the property.

    I strongly suggest you consult and retain probate counsel. As an administrator, that is your duty. You cannot prosecute or defend an action to recover property unless you are an attorney.

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  • What can I do about an attorney who dropped my case closing doors to appeal wrongful termination

    I worked for the public sector in California and was terminated and appeared to have a wrongful termination case. I retained an attorney on contingency who advised bypassing the state personnel review board, which was part of the due process proc...

    Michael’s Answer

    I agree with Mr. Pedersen's response. Your facts are unclear as to why you no longer can pursue your case through the personnel review board and the type of civil action the attorney was going to pursue on your behalf. Unless you lost a viable claim due to the attorney's actions, you have no case against the attorney. Generally, you do not have a right to continued representation by an attorney on a contingency basis.

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  • Corporate Bank Levy with wrong business name on levy- business name on Writ of Execution is different

    Our company has a court judgment against it- Orange, Inc. (example). The Writ of Execution has the name Orange Inc (although Orange is spelled Orang), and on that same writ, it names a bank account for Orange Consulting, and entirely different b...

    Michael’s Answer

    Does the bank account belong to the judgment debtor? If so, an incorrect misspelled name on the writ may be of no consequence. My 3 cents and food for thought.

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  • My motion to vacate a default judgment was denied.

    The reason for denial was that I did not articulate enough my reason for failure to attend the phase 1 trial. As a self-represented, what are my option? Can I file an appeal?

    Michael’s Answer

    Unfortunately, the abuse of discretion standard is hard to overcome. It appears you blew your chance by failing to articulate a legal reason that was accepted by the court for failing to attend trial.

    Do not make the same mistake twice. Consult appellate counsel to determine the likelihood of success. Remember, even if you are allowed to vacate the default judgment, you only have a right to defend your case.

    Unless the court abused its discretion, you have a loser. And, absent a viable defense that will at least mitigate your losses, why appeal?

    BTW, self-represented litigants are held to the same standard as an attorney.

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  • What right does the surviving spouse have after husband passed away still married but living seperate.

    I was married to my husband for 27 years. WE were living seperately. My self in our home and he at his mothers. He passed away 3-3-16 while living at his moms.. Several of our pricey items were at his moms at that time. (1) Cobra Sports Car a...

    Michael’s Answer

    You have the rights of a spouse. How property passes after death depends to a large extent on how title to the property was held.

    A will must be admitted to probate. The successor trustee of your husband's revocable trust only has rights to your husband's community property interest in community property and the interest of your husband in his separate property.

    Your understanding aside, you need to consult and retain probate counsel. Why have you waited so long?

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  • Do I need to serve also opposing attorney a copy of the Civil Subpoena I am serving on one of the parties to this case.

    We have a trial coming up. I want to serve one of the parties a Civil Subpoena to bring documents to trial. Do I also serve his attorney? I am using form SUBP-002. Thanks.

    Michael’s Answer

    A subpoena is not necessary if you want a party to appear and produce documents at trial. Notice served on the attorney for the party is sufficient. You must serve the notice at least 20 days prior to trial, plus any additional time for manner of service.

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  • Legal Malpractice and Continuing Violation Doctrine limited by CCP 340.6 (a) (1-4)

    In Superior Court, would the theory of continuing violation hold when an attorney representing me repeatedly failed in his representation of me ? Would the statute of limitations begin anew each time he was negligent? Or does the above code prohi...

    Michael’s Answer

    The SOL is tolled during the time the attorney continues to represent the client regarding the same matter. Assuming this is a court case, an attorney's representation usually does not end until the attorney is substituted out of the case or the case is over. In some circumstances formal substitution is not required nor does representation end with the case terminates.

    The "failure of representation" must rise to the level of professional negligence and you will need expert opinion testimony. You must satisfy the "but for" test, i.e., but for the negligent representation you would have achieved the desired result and collected, if plaintiff.

    Legal malpractice cases are expensive to prosecute. If you believe you have a viable legal malpractice case you would be wise to consult a legal malpractice attorney immediately. In many cases, and especially without an attorney or if the SOL has already run, the prosecution of such a case is a fool’s errand.

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