May 2011 Archives

A Santa Rosa Tenant Must Use Ordinary Care to Preserve Premises and Act to Avoid Waste

homerepair.jpgA tenant must use ordinary care for the preservation of the premises in safety and in good condition [see CC § 1928 ], and must repair all deteriorations or injuries to the premises occasioned by the tenant's want of ordinary care [see CC § 1929 ]. A tenant must use leased property in such a way as to avoid waste.

Waste occurs when the party in possession commits an act that substantially or permanently diminishes or depreciates the market value of property. Further, unauthorized alternations made by a tenant to premises may constitute waste, even though they enhance the property's value, because the policy is that the premises ought to be returned on the lease's termination in the same condition as when leased. However, a tenant may be able to make minor alternations to the premises without violating a lease provision that specifically prohibits alterations by the tenant. Whether an alteration is material or minor is a question of fact to be determined by looking to the lease as a whole and any specific provisions regarding alterations.

Ordinarily, the amount of damages recovered for a tenant's waste is the pecuniary measure of the diminution of the estate or the value of dilapidations amounting to more than ordinary wear and use. Although by statute treble damages may be recovered against a tenant who commits waste, treble damages are not mandatory in character, and contemplate a showing of willfulness or malice. Whether the damages should be trebled is left to the court's discretion.

The Law Offices of James V. Sansone offers a full range of landlord tenant legal services, including evictions, evictions after foreclosure, eviction defense, contract and lease disputes, landlords in bankruptcy, and especially enjoys dealing with problem tenants. We are located in Santa Rosa, California and serve clients throughout Sonoma County, Mendocino County, and Lake County, including Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, and Kelseyville.

CONGRATULATIONS CLASS OF 2011

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Recycling Services May Start To Be Required for Santa Rosa Tenants in Apartment Buildings

istockphoto_3047045_recycling_bin_1.gifAs reported by the California Apartment Association, many cities and counties in California require tenants in apartment buildings to participate in local recycle programs. Naturally this means that the owners or the management companies for these rental properties must make sure that recycling bins and education are available to tenants to fulfill their obligations.

To deal with cities that have not drafted and imposed recycling legislation, California intends to encapsulate them through state law.

AB 818, if passed, would require tenants in apartment buildings, with five or more units, to recycle. The owners of these properties must arrange for recycling services that are suitable and obtainable for the property. The law will allow exceptions for properties where there is insufficient space for recycling containers or if the cost of recycling services creates a financial difficulty for the property owner.

The Law Offices of James V. Sansone offers a full range of landlord tenant legal services. We are located in Santa Rosa, California and serve clients throughout Sonoma County, Mendocino County, and Lake County, including Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, and Kelseyville.

What Are the Grounds For A Divorce In A Santa Rosa Marital Dissolution Action?

14rfd-image-custom5.jpgCalifornia is a "no fault" state. However, prior to 1969, a divorce could be obtained in California only if one spouse proved that the other spouse was guilty of adultery, extreme cruelty, willful desertion, willful neglect, or habitual intemperance, or if the other spouse had been convicted of a felony, or was incurably insane.

The Family Law Act of 1969 and its successor provisions in the Family Code have eliminated fault as an element in divorce proceedings by:

1) Permitting dissolution of a marriage only on the grounds of irreconcilable differences or incurable insanity;

2) Providing for the equal division of community property without reference to the underlying causes of the dissolution or legal separation; and

3) Prohibiting evidence of acts of specific misconduct, except as otherwise provided by statute, such as with respect to certain child custody matters.

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Santa Rosa Bankruptcy Debtors May Be Able to Avoid Wholly Unsecured Liens in Chapter 20 Filing

7+13.bmpThere is no official Chapter 20 bankruptcy filing, but a "Chapter 20" filing is idiomatic phrase that refers to the filing a Chapter 13 bankruptcy after having received a previous Chapter 7 bankruptcy discharge. This type of filing has been significantly limited after the 2005 bankruptcy reform act, but "Chapter 20" can still provide vital relief in precise unique situations.

In the 4th Circuit, In re: Bryan Matthew Davis, Carla Denise Bracey-Davis held that the ability to avid wholly unsecured liens is not dependent on receiving a discharge. In Davis, the debtors declared Chapter 13 bankruptcy 12 months after they received a Chapter 7 discharge, and they asked the court to avoid a junior lien a bank held on their residence because their residence was worth less than the amount of senior liens.

While admitting that its lien was wholly unsecured, the bank opposed the debtors' motion to avoid the lien, claiming that the debtors could not avoid the lien because they were ineligible to receive a discharge of their debts in a Chapter 13 bankruptcy case based on their previous Chapter7 filing. The court rejected making a per se rule which would make lien stripping in a Chapter 20 contingent on receiving a discharge, which the court believed was consistent with Section 506(d), which requires debtors to complete the lien stripping process prior to confirmation. Further, because there was no evidence that the debtors declared Chapter 13 bankruptcy in bad faith or filed their Chapter 13 bankruptcy plan in bad faith, the court confirmed the debtors' plan and held that the lien could be avoided.

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Can I Get My Ex To Pay My Attorney's Fees In My Santa Rosa Divorce?

istock_000001836009xsmall.jpgUnlike regular civil litigation actions where the court can't award attorney's fees unless it's authorized by contract or statute, the family court has a great degree of latitude to award a party their attorney's fees in any family law matter.

In order to make an award of attorney's fees in a dissolution, legal separation, or nullity proceeding, the court must consider the respective incomes and needs of the parties, as well as ability to pay. Once it has made these determinations, the court may order an award of attorney's fees and costs if the making of the award, and the amount of the award, is just and reasonable under the relative circumstances of the respective parties. In determining what is just and reasonable under the relative circumstances, the court must take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to adequately present his or her case, taking into consideration the circumstances of the respective parties.

The purpose of an attorney's fees award is to provide one of the parties, if necessary, with an amount of money adequate to properly litigate the controversy. Each party should have equal access to legal representation in order to preserve all of his or her rights.

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The Quickest Way For A Parent To Lose Primary Physical Custody In A Sonoma County Child Custody Action Is For That Parent To Obstruct The Visitation Rights Of The Other Parent

2391770_f520.jpgWhen dealing with contested child custody issues, the court's primary concern must be for the child's health, safety, and welfare. California's statutory scheme governing child custody and visitation determinations is set forth in the California Family Code. Under this scheme, the overarching concern is the best interest of the child. In a determination of what is in a child's best interests the court must consider, but is not limited to, history of abuse against the child, or other specified persons, habitual or continual drug or alcohol abuse, and the nature and amount of contact with both parents.

In a child custody dispute, the decision as to what is in the best interests of the child is necessarily "Solomon like" in nature but it is more than subjective judgment. It is not simply what the judge thinks is in the best interests of the child but rather a balancing of criteria in an attempt to further the objectives of the Family Code.

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Santa Rosa Landlords May Be Required To Allow Tenants to Post Anything They Want At The Property

tenant.jpgSB 337 requires a rental property owner to allow tenants to post any type of sign or banner at the rental property.

In every lease there is a covenant of quiet enjoyment that is binding on the landlord during the term of the lease [CC § 1927]. This covenant means that a tenant must not be disturbed in his or her possession by the landlord or any third party to which the landlord has control over.

Because rental property owners have this legally imposed duty to ensure the peaceful and quiet enjoyment for all residents at the property, SB 337 interferes with their ability to fulfill this obligation. It denies property owners the ability to prevent the posting of signs and banners that are offensive to other residents.

This law is intended to give tenants freedom of expression, it takes from rental property owners their right to set standards for their property, hindering their ability to control visual blight and disputes between tenants.

Cal Const, Art. I § 2 provides that "[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."

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I Filed For Chapter 7 Bankruptcy In Santa Rosa Before, When Can I File For Bankruptcy Again?

timing1.jpgSome debtors may be barred from filing a bankruptcy case altogether for some period of time. If a client was the debtor in a bankruptcy dismissed in the previous 180 days, and that dismissal was (1) for willful failure to abide by court orders or to appear in court in proper prosecution of the case or (2) a voluntary dismissal following a request for relief from the automatic stay, then that client is not eligible to be a debtor until 180 days after the dismissal.

In other cases, the automatic stay might not apply by reason of a prior case under the Bankruptcy Code or a court order in a prior case. The automatic stay is not effective upon filing or limited in a case filed by a debtor who has had a prior case or cases dismissed within the year. Also excepted from the stay are certain actions to enforce a security interest in real property in connection with serial filings. If the primary purpose for filing is to obtain the benefits of the automatic stay and one of these exceptions applies, debtors need to take affirmative action to have the stay imposed or consider other alternatives to bankruptcy.

Lastly, some clients may stand to gain little from a chapter 7 bankruptcy because they cannot receive a discharge due to a prior bankruptcy. However, a chapter 13 case may still be available to provide significant relief. Even though a chapter 13 discharge is not available if the debtor received a chapter 7 discharge in a case filed during the preceding four years, there may be occasions in which a debtor will find it advantageous to file a chapter 13 case even if a discharge is not available. For example, a debtor may seek to cure a default through a plan or to obtain protection of the bankruptcy court and the automatic stay while paying debts in an orderly fashion through a plan.

The general rules concerning how much time you must wait before you may file a second bankruptcy are as follows:

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A Santa Rosa Landlord's "No Pet" Policy May Create Liability Under California Law And The American with Disabilities Act

Disabilities_Act_copy3.jpgThe Fair Employment and Housing Act makes it unlawful discrimination and harassment to discriminate against a person because of a disability, which includes but is not limited to, any physical or mental disability as defined by California Law.

In an action for housing discrimination under the FEHA, if the court finds that a discriminatory housing practice has occurred or is about to occur, the plaintiff may be awarded actual and punitive damages and the court may grant other relief, such as injunctive relief. The court also has the discretion to award the prevailing party, other than the state, reasonable attorney's fees and costs, including expert witness fees, against any party other than the state.

In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.); (2) the discriminating party knew of, or should have known of, the disability; (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling; and (4) the discriminating party refused to make this accommodation.

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An Interested Party Has A Right to Request Abandonment of Property of the Estate In A Santa Rosa Bankruptcy

mban2632l.jpgAbandonment constitutes a divesture of all of the estate's interests in the property. Abandoned property reverts back to the debtor, and the debtor's rights to the property are treated as if no bankruptcy petition was filed.

The bankruptcy trustee may "abandon" property if it is not needed by the estate and its retention serves no purpose in effectuating the goals of the Bankruptcy Code. Property may be abandoned if it is burdensome to the estate or of inconsequential value and benefit to the estate. Abandonment can occur only after notice and a hearing, which assures that interested parties have an opportunity to object to a proposed abandonment.

Scheduled property that has not been administered by the bankruptcy trustee is automatically abandoned by the close of the case. However, any unscheduled property, since it was unable to be administered, may remain property of the estate.

Typically, abandonment of property of the estate pursuant to section 554 is initiated by the trustee, although other parties may move to have the trustee abandon property.

The law does not specify the time in which the trustee must act to abandon. The trustee must ascertain the property's fair market value and the amount and validity of the outstanding liens against the property. Under prior case law, however, the trustee had a "reasonable" time to consider retaining or abandoning an encumbered or otherwise not clearly beneficial asset. The term "reasonable" implies that the period of deliberation is adaptable to the circumstances. The trustee may wait until he or she is able to ascertain whether there is any profit to be expected for the estate.

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Gwendolyn Smith Loses Another Legal Battle This Time In Oregon

pacific_heights_1990_685x385.jpgThe court may be different and the state may be different, but the frivolous legal arguments and courtroom manner remain the same.

Oregon landlord Pamela Joy, Smith's second landlord in Oregon she was involved in a legal battle with, is happy that her trial against Gwendolyn Smith is over.

Below is a reproduction of the Order from the Oregon Court. A comparison with the Judgment and Statement of Decision in former Sebastopol Landlord Connie Cook's trial against Gwendolyn Smith reveals many similarities.

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR JACKSON COUNTY

PAMELA JOY, Plaintiff, v. GIA SCHULTZ, et al, Defendant.

No. 110008360E

ORDER


This matter is before the Court on several motions filed by defendant Gia Schultz, also known as Gwendolyn Smith.

On April 8, 2011 Ms. Smith filed a motion seeking a reinstatement of the jury trial, for leave to file an amended counterclaim, and to reset the date of pretrial motions.

The Court met on the record with the attorney for the plaintiff and Ms. Smith at the time set for trial of the case, at 9:00 AM on April 8, 2011. The Court had not previously denied a jury trial, as Ms. Smith's motion states, and the Court affirmed that she was entitled to a jury trial. Because a jury was unavailable on April 8, 2011, the Court continued the matter until April 12, 2011, and set the time for hearing of pretrial motions at 8:30 AM on April 12, 2011 and for a jury trial at 9:00 AM on April 12, 2011.

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Concealment Of An Asset Can Have A Devastating Effect On A Santa Rosa Divorce

stock_market_fraud.jpgIn re Marriage of Rossi is the famous law school "lottery ticket case". In this marital dissolution case, the wife failed to disclose her monetary gain in the amount of $ 1,336,000 from a winning lottery ticket she had purchased with a group of her coworkers in an office lottery pool.

California law provides that each spouse must act with respect to the other spouse in accordance with the general rules that govern fiduciary relationships between persons who have confidential relations with each other. The statement of legislative intent concerning this directive declares that spouses occupy a confidential and fiduciary relationship with each other in which each spouse places trust and confidence in the integrity, honesty, and fairness of the other.

California Family Code § 1101(h) provides that remedies for the breach of the fiduciary duty by a spouse who is guilty of oppression, fraud, or malice shall include an award to the other spouse of 100 percent of any asset undisclosed or transferred in breach of the fiduciary duty.

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