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December 12, 2013

What to Do If You Are Served With a Subpoena

If you are served with legal papers it is important to determine what type of papers you received. Are you being sued or are you being called to court or a deposition as a witness. It is worth a call to a litigation attorney to help you determine what steps to take so that you do not find yourself embroiled in someone else's lawsuit.

What Is a Subpoena?

Thumbnail image for dreamstimeextrasmall_26645051.jpgFirst you must determine if you have been served with a summons or a subpoena. If you have been served with a summons it means you are being sued. Click on this link to see an example of a summons. A subpoena is a document that requires the attendance of a witness or the production of documents at a deposition, trial or hearing. Subpoenas can be served on parties and non-parties to a lawsuit or criminal case. An example of a subpoena can be seen by clicking on this link.

Types of Subpoenas

There are two main categories of subpoenas: deposition subpoenas and trial subpoenas. A deposition subpoena requires attendance and/or the production of documents or other things at a deposition. A deposition subpoena is necessary to compel a non-party witness to appear and give testimony or produce documents at a deposition. Subpoenas are not required to compel someone who is a party to an action to appear.

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June 2, 2013

Knowing Your Rights Regarding Residential Security Deposits - Part 2 Moving Out

Among the most popular questions we receive each week are those involving residential security deposits. We are often called upon by tenants and landlords to write letters clarifying their positions regarding the return or retention of a security deposit. These "lawyer letters" often help resolve the issue and, if not, are excellent exhibits our clients may use when they pursue their issue in small claims court.

House.jpgThis is the second and final installment of a two part blog dealing with security deposit laws as they relate to residential properties. This second blog deals with how disputes arise regarding security deposits at the end of a residential lease. Please keep in mind that this article only deals with residential security deposits and other laws apply to mobile homes, commercial properties, and boats.

The Inspection. Before the tenant moves out the landlord must notify the tenant in writing that the tenant has the option to request an initial inspection of the property and that the tenant may be present during the inspection. (Civil Code section 1950.5(f).) If requested, the landlord must inspect the property within a reasonable time, but no earlier than two weeks before the lease ends. The landlord must give at least 48 hour prior written notice of the date and time of the inspection. This inspection must be done before the tenant moves out and before the landlord's final inspection. The purpose of the initial inspection is to allow the tenant to remedy any deficiencies so the tenant may avoid deductions from the security deposit. The tenant must be given the opportunity from the time of the inspection to the time the lease ends, to remedy any and all deficiencies. If, after notice to the tenant, the initial inspection is not requested, the landlord has no obligation to conduct one. It is a good idea for both the landlord and the tenant to write down the results of this inspection and to take plenty of photographs and video to back up their position.

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May 22, 2013

Knowing Your Rights Regarding Residential Security Deposits - Part 1: Moving In

Each week we receive calls from landlords and tenants who need a real estate attorney to advise them regarding residential security deposits. Nearly every residential landlord requires that a tenant pay a security deposit before moving into a residential property. Even though security deposits are common place, it is surprising how many misconceptions both landlords and tenants have regarding California security deposit law. It is also important to understand that different laws apply regarding mobile homes, commercial properties, and boats. This is the first installment of a two part blog dealing only with laws that relate to residential properties. This part will deal with security deposit issues that arise at the beginning of a lease.

Thumbnail image for Money in Hand.jpgWhat Is Security? California Civil Code section 1950.5 defines "security" as any fee, payment, charge or deposit that is required by a landlord at the start of a tenancy for costs associated with the tenant that can be used to reimburse the landlord for any purpose (except for the application of a screening fee and consumer credit report prior to the time the lease is made.) No lease or agreement may ever categorize a "security" as nonrefundable.

How Much Can Be Charged For A Security Deposits? When a landlord requires a tenant to pay a security deposit, the amount of the security deposit cannot exceed the costs of two month's rent if the residential property is unfurnished and three month's rent if the residential property is furnished. There are some exceptions to this rule but they deal primarily with advance payments of rent when a lease is for more than six months. (Civil Code section 1950.5(c).) Just because a security deposit is given a different name such as "pet deposit" or "last month's rent" does not change the fact that it is a security deposit and must comply with the limits provided by law.

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January 2, 2013

A New Year Brings New Laws to California In 2013


Practicing law in January is always challenging because with the New Year there are always changes in California law. This year is no exception. Governor Jerry Brown signed over 800 new laws that took effect in California on January 1, 2013. Some of the new laws that will be of interest to our clients in the areas of litigation, real property law, business and contract law, and privacy are listed below.

11746299_s (2).jpgPrivacy. California has joined many other states in banning employers and colleges from demanding the passwords for an employee, prospective employee or college applicant's social media account. Employers and colleges can no longer demand or even ask for social media login information. This does not mean you can freely post whatever you want on Facebook, that information can still be the subject of discovery.

Changes in Litigation Laws. AB 1875 limits depositions to seven hours of testimony. There are a number of important exceptions to this rule but it will make it more difficult to harass witnesses and litigants by keeping them at their depositions unreasonably. AB 1631 allows out-of-state attorneys to represent a party in an arbitration proceeding in California if certain conditions are met.

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December 12, 2012

How to Remove an Improper Mechanics' Lien

Unfortunately, more often than not property owners find themselves involved in a dispute with a contractor or subcontractor whom they have hired. The property owner withholds payment for work that is not performed Thumbnail image for Thumbnail image for dreamstime_xs_4655623.jpgproperly or timely and the contractor retaliates by recording a Mechanic's Lien against the owners' property. If the Mechanic's Lien was not filed correctly or has grown stale, the Mechanic's Lien can be removed or "expunged" by a court fairly quickly. It is critical in these cases to seek the assistance of an attorney who is experienced with expunging Mechanics Liens.

The California Mechanic's Lien Law was completely revised and restructured as of July 1, 2012. The change in law means that contractors and subcontractors needed to update their forms and use slightly different procedures to enforce a Mechanics' Lien. (See Cal. Civ. Code sections 8000 - 9566.) This created a trap for unwary contractors who used the same form they used prior to July 1, 2012.

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December 2, 2012

What is a Partition Action? When is a Partition Action Necessary?

With the uncertainty of the economy, many California home and business owners have elected co-ownership when purchasing a home, commercial property, or business. A partnership interest in a business can be a wise investment, but can also lead to the demise of the business if the relationship goes sour. What happens if one person disagrees with the way the business is run or how the real estate is being used? What if one person wants to move away or retire? Can this disgruntled owner part ways and still reap the benefits of his or her investment? When there is a quarrel between co-owners or partners, hiring an experienced business lawyer or real estate attorney to file a partition action may be the best and only way to settle the dispute in a fair and just manner.

Thumbnail image for dreamstime_s_25803673.jpgWhat Is A Partition Action? A partition action allows the court to divide property equally between interested parties. California Code of Civil Procedure section 872.010 et seq. contains the rules regarding partition actions. Since many partition actions involve real estate, this type of lawsuit is commonly associated with real property. However, partition may also be applied to dissolving any type of partnerships. This is known as an action for partition of partnership property. Although personal and real property can be divided through a partition action, community property (property acquired during a marriage) cannot be partitioned by this section of the California code.

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June 22, 2012

How to Put a Lis Pendens On a California Property

I often get calls from clients who are looking for a real estate lawyer to put a lis pendens on someone's real property. I then explain to them that they must file a lawsuit to do this and they are surprised. A lis pendens literally means a "Notice of Pending Action." In other words, it is a notice to the world that there is a lawsuit regarding title to that real estate. A lis pendens is not a lien and it cannot stop someone from selling or getting a loan secured by real property, however, it usually does effectively deter others from selling or borrowing money because it means the ownership rights to that property are in question.

637728_house_1.jpgA lis pendens is permitted in some types of lawsuits and actually required in other types of actions. It is required in lawsuits for Partition, Eminent Domain, Quiet Title, Claims to Escheted Property, Forefeiture Proceedings, and Actions to Declare a Building Uninhabitable. It is permitted in other types of cases where someone has a real property claim such as mechanic's lien foreclosure lawsuits, divorces, suits to enforce easement rights, and suits to specifically enforce a real estate contract. It is critical, however, to consult a real estate litigation lawyer who is familiar with these laws because you may subject yourself to liability later for improperly filing a lis pendens.

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