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David Blain’s Answers

131 total

  • Is my University liable if I am involved in an auto accident while traveling to a mandatory school assignment

    David’s Answer

    As stated by every other attorney who responded before me, unless you were an employee of the university and were injured while acting within the course and scope of that employment, then no the university is not liable.

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  • What is the Statute of Limitation for auto accident in California?

    My car came in contact with parked car due to my fault. There were no visible damage on either car. It was 13 months ago and the owner did not communicate with me even though we exchanged info. I have since sold my car and lost the cell-phone on w...

    David’s Answer

    C.C.P. Section 335.1. "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." The statute may be tolled for reasons of insanity, minority, imprisonment, absence in the state, etc.

    C.C.P. Section 338 further states, "Within three years: (a) An action upon a liability created by statute, other than a penalty or forfeiture; (b) An action for trespass upon or injury to real property; (c) (1) An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property."

    You should consult an attorney about the time limit that applies to the facts of your specific case.

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  • What are my tenant rights when there is mold in my apartment?

    I started having headaches and then noticed this odd smell in my apartment and I found mold growing under my bathroom/bedroom sink. I reported to the apartment complex who initially dismissed it. I kept after them and it was discovered a broken/...

    David’s Answer

    Please see the following guide for California Landlords and Tenants. This guide outlines the rights and responsibilities for both the landlord and the tenant.

    As the other attorney noted, the repair and deduct remedy is an option for the tenant. However, I always would advise you as the tenant to first contact your landlord and notify him/her of the defect. Hopefully the LL will repair the defect at no cost to you. If you have provided notice and the LL has failed to take any remedial action after more than enough time to do so has passed, then the repair and deduct remedy may be a more forceful and appropriate option to take.

    If you do proceed with the deduct and repair remedy you should anticipate an eviction proceeding initiated against you by the LL for failure to pay your full rent. With this in mind it is a good idea for you to document all your communication in writing with the LL, to keep any and all estimates for repair and any and all receipts that can show what the repair work cost. Do not deduct from your rent more than what it cost to repair the defect. This will then be used by you to prove your case should there be a trial on the matter.

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  • Proper venue for a civil lawsuit under Cal Code of Civ Proc. 395

    FACT: I filed my case following Cal. Code. of Civ. Proc. 395(a)...I obtained the Court's fee waver due to my low income (single mother of two)...I filed in SD County Superior Court-East Div. The Defendant( headquartered in Nevada) and with an offi...

    David’s Answer

    You don't state what type of case you filed, i.e. personal injury, breach of contract, etc., which is important because it determines where venue is proper. I'm assuming it's an employment case b/c the defendant is your former employer.

    It sounds like the downtown SD court is proper venue because it is where the Defendant is located (you say that's where it's offices are) and I am assuming that's where you worked before you were fired and likely the place where any alleged wrongful conduct took place that you are complaining of.

    But then again I'm only assuming it is an employment case based on the fact that the defendant is your former employer.

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  • Car Accident Person who hit me is now lying!

    I was involved in a car accident. A person(now a liar) rear-ended my car and made my car collide into the other car in front of me. I was a complete stop. & had my foot on the brake I had two passengers in my car. My car has damage from the re...

    David’s Answer

    This is not uncommon. But since yo are represented by a lawyer already, you should be asking him these questions and making sure he understands your statement of events. You should work with your attorney in resolving this matter.

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  • If my boyfriend causes an accident or a death by intentionally hitting them and I am in the car, am I legally responsible also?

    He is a reckless driver who will street race, cutoff, and pit cars that piss him off.

    David’s Answer

    I agree with the other attorneys that whether you can be held liable at all (even just 1%) will depend on the facts of the situation. For example, if you were a passenger in the car and somehow unreasonably distracted the driver just prior to the accident then you potentially may share in the fault of the accident. On the other hand, if you were just sitting in the passenger seat doing nothing then you would not be held liable.

    Good luck.

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  • LLC is dissolved, yet there are still late filing penalties among other things, do I need to pay these?

    I created an LLC in 2009 that never went into business. Being naive, I did not realize I needed to close it until 2011. As such, I paid the 2009 & 2010 LLC taxes and thought it was done. However, they have contacted me back saying I owe late fees...

    David’s Answer

    LLC's are subject to an annual state franchise tax and a separate annual LLC fee. The tax is an $800 annual tax that every LLC must pay if the LLC is registered in CA or does business in CA. The LLC fee is based upon the amount of income generated by the LLC. For income of less than $249,999 there is no fee. You can find this very basic information, as well as additional helpful information, here:

    You must pay the taxes and fees every year the LLC is registered in CA or does business in CA, and it does not matter if your LLC was inactive and "never went into business." It exists in the eyes of CA so you must pay the taxes. It also appears that you were late in paying the taxes so fines and additional fees may have been levied against the LLC. You must pay those as well.

    The LLC will continue to be taxed until it is legally and properly dissolved. In order for an LLC to be legally and finally dissolve I believe all the back taxes and fees must be paid. So the fact that the LLC has unpaid taxes and fees leads me to believe the LLC was not dissolved and is continuing to have taxes, late fees and fines levied against it.

    You should seek the assistance of a business attorney so that they can properly dissolve the LLC for you so it stops incurring tax liability and late fees.

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  • I was served with a defective summons for a unlawful detainer. How do I fight this?

    The summons I received was form sum-100, the correct form is sum-130. How should I fight this? I have received three different opinions from different sources.... i. motion to quash ii. demurrer iii. wait until default judgement, then immedi...

    David’s Answer

    I agree with Mr. Chen.

    Filing the motion to quash is probably your safest bet. Waiting for the default judgment to be entered against you is a bad idea and very risky, especially since you have actual notice of the Unlawful Detainer proceeding against you.

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  • Question regarding filing a motion to compell production.

    I am at the point where a new trial date is set in December, but discovery cutoff was in August and not continued to new date. 1) can I still file a motion to compell production of a document not produced by opposing attorney who gave vague and ...

    David’s Answer

    In my opinion you are SOL on this motion to compel. If it is true that the responses were provided MONTHS earlier then you missed any time you had to file your motion. And by failing to file your motion within the allowed time you waived any right to compel a further response.

    Plus you are well past the discovery motion cutoff date. This is a hard battle to overcome.

    "2031.310. (a) On receipt of a response to a demand for inspection,
    copying, testing, or sampling, the demanding party may move for an
    order compelling further response to the demand if the demanding
    party deems that any of the following apply:
    (c) Unless notice of this motion is given within 45 days of the
    service of the response, or any supplemental response, or on or
    before any specific later date to which the demanding party and the
    responding party have agreed in writing, the demanding party waives
    any right to compel a further response to the demand."

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