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Sean Michael Foldenauer
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Sean Foldenauer’s Answers

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  • An multi-billion dollar and well known company in bay area is using my picture for commercial purpose without any permission.

    Can I sue that company? I am looking for your help and advise? How can you help?

    Sean’s Answer

    This will depend on the facts and circumstances. As this is an area in which our firm litigates, feel free to call for a free consultation. In general, California has a wide variety of legal theories that may be available to you, including:
    1. INVASION OF PRIVACY- APPROPRIATION OF PERSON'S NAME OR LIKENESS (COMMON LAW);
    2. UNAUTHORIZED COMMERCIAL USE OF PHOTOGRAPH AND LIKENESS (California Civil Code Section 3344);
    3. VIOLATION OF PLAINTIFF'S RIGHT TO PUBLICITY;
    4. VIOLATIONS OF BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.;
    5. VIOLATION OF LANHAM ACT (Deceptive Advertising);
    6. BREACH OF IMPLIED CONTRACT/UNJUST ENRICHMENT;
    7. QUANTUM MERUIT

    Good question and good luck!

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  • Is there a time limit to reopen a case that was dismissed without prejudice?

    The lawsuit was filed in California court. Plaintiff filed for dismissal without prejudice with plans to bring case back to court at a later date.

    Sean’s Answer

    Generally, yes. A case that has been dismissed without prejudice may be refiled. But the time for timely filing the action again, within the applicable statute of limitations, may also pass. Tick, Tock.

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  • Does opposing counsel need to be notified that a subpoena for personal appearance at trial has been sent to nonparty witness?

    Opposing counsel served all of their subpoenas for personal appearances at trial to our office, but I can't figure out why. Do we need to serve them in response for all of our non-party (non-represented) witnesses that we want to appear at trial?

    Sean’s Answer

    • Selected as best answer

    No. You do not need to serve opposing counsel with copies of your trial subpoenas. I suspect opposing counsel made a mistake as it is generally agreed to be a good trial strategy not to do what they have done. Good luck!

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  • What should we do with the person to sue against for money owed?

    What do we do if we want to request someone to pay us back nearly 10,000 dollars on an oral contract, with ten witnesses to testify that they are to pay us back 10,000 dollars? We are aware of a small claims court, but would rather have settled wi...

    Sean’s Answer

    I agree with Mr. Chen's response to your question. California Small Claims Court has changed. Here is my summary and 2 cents: $10,000 (effective January 1, 2012), except that a plaintiff may not file a claim over $2,500 more than twice a year. Limit for local public entity or for businesses is $5,000. $6,500 is the limit in suits by an individual against a guarantor that charges for its guarantor or surety services.

    Hope this helps. Good luck!

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  • The opposing party giving the deposition is insisting on holding the deposition at his counsel's law office. Since I have no

    counsel, I requested that it be held at a neutral location at the court reporter's office but they refused claiming they are entitled to set the location of the deposition pursuant to section 2025.250(a) of the California CCP. Is there anything I...

    Sean’s Answer

    This is a very good question and example of how litigants often fight over issues that do not affect the outcome of the case. I assume that your opponent's attorney chose the time, date and location of the deposition and did not confer with you beforehand. When this occurs it is not uncommon for the lawyers to pick up the phone and work out the details without troubling the court. If you have called opposing counsel and he has refused to work with you on the location, and you believe he has chosen his office for the purpose of intimidating you, or making it inconvenient for you, then you may wish to write him advising that the location is unacceptable and that if he does not reset it at a neutral location you will seek a protective order from the court. Also look closely at the deposition notice for procedural defects such as served untimely, improper language, etc., as required by CCP §2025.220(a).

    I also note that you state you do not have an attorney. Possibly you can hire one (litigation/trial attorney) for the limited purpose of setting and defending you in deposition. There are many questions which a deponent need not answer in deposition and many objections that must be raised to preserve them for trial. Money well spent. Good luck. I hope this helps!

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  • What is the proper procedure for an extension of time to respond to a complaint?

    I filed a complaint a couple months ago and the attorney for the defendant called me a couple weeks ago and asked for an extra 15 days to respond. I agreed. The case management conference is set for 5/14/13. I just checked with the court and th...

    Sean’s Answer

    I agree with counsel. According to my math, however, the defense attorney's response should be filed before the hearing. So, in that even, I suggest that you call opposing counsel to notify him or her of the hearing, confirm that you have done so in writing (i.e., send notice of hearing with the time, date, location). Be sure to prepare and file your own case management conference statement. Here is a link to a form you may use: http://www.courts.ca.gov/documents/cm110.pdf
    I hope you find this helpful. Good question and good luck with your case!

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  • After filing an entry of default, opposing counsel request permission to file answer due to his oversight and I agree.

    Anything needs to be done to cancel the entry of default? Does OC needs to file motion to set aside with my stipulation?

    Sean’s Answer

    Mr. Mann is correct. It is customary for the party seeking to set aside the default to prepare a stipulation and proposed order. You will both sign it and it will be filed with the court. It is also appropriate for the proposed responsive pleading to be filed at the same time. Once the court approves the stipulation and signs the proposed order the response will be deemed filed. At that point you have a law suit on your hands. Good question and good luck.

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  • Is it safe to mail my answer and proof of service to the California superior Court?

    I'm being sued by a junk debt buyer for a debt that is several years past the SOL. The county they sued me in is a considerable distance from my home and I can't really afford to take more time off from work. I would like to mail it certified ma...

    Sean’s Answer

    • Selected as best answer

    Mail may or may not arrive on time, or at all. Other methods are to use an attorney service to file it in person for you, or a new hip way is to use the court's fax filing system. California Rule of Court Rule 2.304 is relatively new. It provides that "a party may file by fax directly to any court that, by local rule, has provided for direct fax filing." If your court provides for this option, use it. It works well because you can file the document the same day, get confirmation that it has been received, and you can pay your first appearance fee on a credit card. Simply go onto the court's website and if it is authorized follow the instructions to obtain a court approved fax cover sheet. The additional cost for fax filing is about $1.50 per page. This is less expensive than any other option. Good question and good luck!

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  • Acceptable forms to answer a complaint for money?

    I'm being sued in limited civil court, superior court of California. The junk debt buyers attorney filed the complaint on pleading paper with the title complaint for money. The complaint is not verified. The debt it well over the statute of lim...

    Sean’s Answer

    • Selected as best answer

    A few more thoughts: The title of the complaint is acceptable. A collections complaint need not be verified. If the complaint is untimely, you may wish to call Plaintiff's attorney and request that he dismiss the case. There is a substantial amount of case law supporting the proposition that it is malicious prosecution for an attorney to prosecute a stale claim, once on notice that the claim is stale. If that fails, look closely at the allegations and exhibits to see if the complaint on its face documents the date of your alleged breach and the running of the statute of limitations. If so, you may wish to consider filing a demurrer under CCP §431.10(e) asking the court to dismiss the case because "the pleading does not state facts sufficient to constitute a cause of action." A demurrer for insufficient facts is proper where it is apparent that a defect will defeat the plaintiff’s right to recovery. A common example of this is when a complaint is filed with the court after the statute of limitations has expired. Very good question. I hope this helps. Good luck!

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  • How do I write a Motion to Vacate a default judgement? I was never served any legal documents.

    I am being sued for defamation and have a default judgment against me, I was never served.

    Sean’s Answer

    • Selected as best answer

    This is a standard noticed motion. You will need to write a notice of motion, motion, memorandum of points and authorities and, most likely, a sworn declaration attesting to the absence of service. You should also prepare a proposed order for the judge to sign. It is also proper to file a copy of the proposed pleading (such as Answer, etc) that you intend to file if leave is granted. The law providing authority to grant your request is stated in California Code of Civil Procedure section 473.5, pasted below. I hope this helps! Good question and good luck.
    Here is a link: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=469-475

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