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David Blain’s Answers

131 total

  • Legally separated. We were still sexual @ times he recently told me and our children that he's having a child, is that adultery

    Would always ask to come back home, because he want's to be with his family.

    David’s Answer

    This is a platform for people to ask legal questions and seek legal advice or to find an attorney. I don't think you are asking any sort of legal question or seeking legal advice.

    However, there are many reasons why people may choose to stay legally married but decide to separate from one another and move on. People may choose against a divorce for religious issues or for child custody and support issues.

    A to whether he is committing adultery. In my opinion, yes because you guys are still legally married and have continued to carry on your least physically.

    But you also are legally separated sounds like he wants his cake and to eat it too. You can choose to live your life how you want, but as for me I wouldn't stand for that behavior.

    Good luck to you and I hope you work it out. You probably should be seeking the counsel of a family therapist or if you belong to a church from your pastor or priest.

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  • Can I take legal action against a used car dealership for selling me a vehicle they knew had defective parts

    I purchased a vehicle from a used car dealership. The next morning the check engine light came on. I took it to a mechanic. They said the catalatic converter was defective. The dealership has a smog certificate that says the catalatic converter pa...

    David’s Answer

    I am assuming it was an "As Is" sale and the dealership did not offer any warranties for the car.

    This is a tough situation for you. An "As Is" sale means that you take the car in the condition it was in at the time of the sale with all defects. The exception to this is by showing the dealer made a material misrepresentation to you that you relied upon in purchasing the vehicle. An omission of a material fact is also actionable misrepresentation, i.e. the never told you the car had such and such problem even though they knew it did.

    So, you'd have to show that the Car Dealership knew before the sale that the vehicle had catalytic converter issues and hid those issues form you. Or you would have to show that they made an affirmative representation to you that the catalytic converter was in fine working order.

    When you buy a 10 years old car with presumable 130,000 + miles on there's going to be a high risk of something going wrong. You can only shift that risk onto the seller through either a warranty or by fraud.

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  • How to win a motion compel production of document?

    I am counter-suing a contractor for breach of contract. I requested for production of a stamped building plans which would proof my claims. Contractor denied he had it and lied that he gave it to me. OC sent a request to me for the same item. ...

    David’s Answer

    Follow the link below for the statute governing production of documents and motions to compel certain documents.

    Generally speaking, a party responding to the demand has 30 days to either state they will comply with the demand; or that they object to the demand on certain grounds; or that the party lacks the ability to comply with the demand.

    If any of these answers are, in the demanding party's opinion, improper then they can bring a motion to compel. The motion to compel must be brought within 45 days of service of the responses.

    The Judge will then rule on the motion to compel by either granting it or denying it. If the judge grants the motion all he can do is require the responding party to comply with their responsibility under the code, i.e. comply, object, or state inability to comply.

    If the responding party has not complied with the request on the grounds that the documents sought are protected by a certain privilege, then it is their burden to prove that the privilege applies. If the judge finds the privilege does apply then he will not make them produce the documents.

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  • My name is Sonila Pich, what do I need to do? If I would like to sue the Bank of CITI BANk in NEw York, or in Texas?

    I have some fund need to transfer out from the bank, but they told me I need to paid for the activation fee of $10,700. Before they can activate my online account. I been paid them about $870 for open online banking with line of credit, and the cu...

    David’s Answer

    I think you may have misunderstood the bank, or you have posted incorrect information here.

    I don't think any bank charges $10,700 to activate an online account.

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  • Does attorney-client privilege apply to other attorneys in a case involves attorney and client as opposing parties?

    In a case where a former attorney and client are the parties, there is no attorney-client privilege per Cal. Ev. Code §958. But in such case does the privilege apply to third party attorneys? Is the client obligated to disclose communications betw...

    David’s Answer

    • Selected as best answer

    I can't make sense of your question.

    The attorney-client privilege is held by the client and can be waived by the client. The client can tell whomever he/she wants about anything their attorney told them or said to them.

    The attorney, however, is the one who has to generally keep their mouth shut. There are a few exceptions to this rule. One of them being a subsequent lawsuit between the attorney and the former client. In that case the attorney is allowed to disclose necessary information that is relevant to the lawsuit.

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  • Civil Litigation

    Is it normal for a civil litigator to ask a potential client to supply expert witnesses before taking a case?

    David’s Answer

    Depending upon the nature of the claim, yes it is normal for an expert to be involved early in the case.

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  • Can the defendant in a personal injury matter file for trial setting preference in a case that involves a minor plaintiff?

    Can the defendant in a matter (who is not a minor) file for trial setting preference in a case in which the plaintiff is a minor?

    David’s Answer

    • Selected as best answer

    Any party to a lawsuit has a right to file a motion for preference if they have proper grounds to do so. The grounds for such a motion are found in C.C.P. Section 36.

    However, the way I understand your statement/question is that the Plaintiff is the minor and the Defendant is not. And the Defendant is the party that brought the motion for trial preference on the grounds that the Plaintiff is a minor.

    I also have assumed that the statute relied upon by the Defendants is C.C.P. 36.

    If my understanding of your statement/question is correct and if my assumption of authority relied on by the Defense is also correct, then my answer would be: No, the Defense cannot properly bring that motion on those grounds.

    The pertinent statute is C.C.P. 36(b), which states: "A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision."

    Upon my reading and understanding of the section, the party entitled to bring this motion is the party who is under 14 years of age. If the Defendant is not under 14 years of age then the motion is improperly brought under this section.

    However, even with that in mind, often times Plaintiffs are the parties bringing motions for preference. Defendants usually drag their feet and try to draw out the lawsuit as long as possible. They have many reasons for doing so. It might be to your advantage, or the advantage of the minor Plaintiff, to have trial preference date granted and provided in this case. You should retain the services of a qualified personal injury attorney immediately and you should discuss this issue with them.

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  • Can a landlord change the lease termination fee without notifying the tenant?

    I executed a lease agreement 3 months ago the representative stated the lease termination fee was one month's rent (my monthly rent is apps $1400). The lease agreement is silent as to the termination fee but has language that upon breach tenant i...

    David’s Answer

    • Selected as best answer

    If you are able to prove that the representative said the termination fee was $1,400 (text, email, etc.) then show that to the LL and pay the $1,400.

    If you are not able to prove that fact, then the 1.5 months fee may not be that bad considering what a LL is legally entitled to when a tenant illegally terminates a valid lease agreement. A lease agreement is treated as a contract, and when a party to the contract breaches the agreement the non-breaching party is entitled to damages. So, for example, if you broke the lease without a legally justified reason, then you will owe the remaining rent under the lease...which is 9 months worth of rent.

    However, a non-breaching party who has suffered damages is not entitled to sit on their butt and do nothing. They have to a "duty" to mitigate their damages. All this means is they have to try and stop the bleeding. They are not allowed to sit around and do nothing and then try an collect all 9 months worth of rent from you.

    The LL is required then to try to re-rent the property after you vacate it. If they try and try to re-rent the property right after you leave but can't find a new renter until 3 or 4 months go by then they have a right to collect those 3 or 4 months worth of rent from you, since you were the one who broke your promise and put the LL in that situation. But, it could also be the case that the LL re-rents the property immediately. In that case you would only owe the LL however much rent they are out, whether it's one month or 6 weeks of rent or whatever the case may be.

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  • Can I sue a bar if I broke a bone while on their premises?

    The injury was a result of an intoxicated person accidentally knocking over a table.

    David’s Answer

    Yes, you can sue whoever you want for your broken bone. You could see me if you wanted. But the issue is will you win. You should consult with a local personal injury attorney to discuss if you would likely prevail in your case against the establishment.

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  • I need to see if i can find a lawyer to sue a diploma mill school

    I went to fill out my application for my pharmacy tech license today and found out my high school diploma was fake what can i do about this.. if i would have sent it in it would have came back on me for fruad and i would never be able to apply for...

    David’s Answer

    You probably should seek further assistance from Ms. Mcall.

    She asked you those question not to offend you but instead to try and gain a proper understanding of the facts so that she could make a proper evaluation of any potential claim you may have.

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