November 2011 Archives

Will Black Friday Create Legal Liability For Holiday Retailers?

November 29, 2011, by Law Offices of James V. Sansone

slip-and-fall2.pngDo retailers, such as Walmart, owe their customers a duty of care? Yes they do. Land owners owe a duty of care to all invitees. The class of persons designated as invitees includes those who have come upon the land at the express or implied invitation of a possessor for the purpose of transacting some business within the scope of the invitation.

The duty of exercising ordinary care for the safety of business visitors may require one who invites the public to his/her premises to purchase goods to take measures different from those required of one inviting others to his/her private residence.

A land owner is required to maintain its property in a reasonably safe condition and has a duty to exercise due care to protect invitees from conditions that can result in injury. Whereas, a land owner has no duty to protect invitees from open and obvious dangers. However, even if a danger is open and obvious, a landowner owner may still owe a duty to protect an invitee if the risk of harm remains unreasonable.

A possessor owes an additional duty towards an invitee to exercise reasonable care to make the land safe for the reception of his/her invitee, or ascertain the actual condition of the land so that by warning the invitee, the possessor may give the invitee an opportunity to decide intelligently whether or not to accept the invitation or permission.

This Black Friday saw a lot of mob like mentality. Some of the issues were created by people's greed, while others were created by retailers' own negligence. Nevertheless, people were injured because of this greed or negligence. Are the stores at fault?

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their civil litigation needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

Bay Area Problem Tenant Gwen Smith Emerges In Oregon

November 23, 2011, by Law Offices of James V. Sansone

house_0.jpgAs posted and written by CBS 5, A few weeks ago, I reposted a post by CBS 5 who reported on a woman who avoided paying rent for years. She had numerous court judgments against her, and owes more than $100,000 to landlords, some in the Bay Area.

Recently, she turned up in Oregon, but her stay there didn't last long.

When CBS 5 first caught up with Gwen Smith, it was late October in the Sonoma County town of Forestville. She sped past our cameras as we tried to ask her about eight court judgments against her totaling $183,000, judgments in favor of landlords such as Connie Cook in Sebastopol.

"She started claiming that the apartment was uninhabitable. The water was not healthy, there was a gas leak," said Cook. A judge ruled Smith's conduct of not paying rent and filing numerous legal actions "malicious" and a "tactical delay" and awarded cook approx. $49,000 in damages.

After leaving Cook's house, Smith moved to Oregon renting a room in Lance Hilt's house. Within days, Hilt said he realized he had made a big mistake. "I got the roommate from hell," he said.

Hilt said she put a lock on her room, and started complaining about everything. "It's all about her, she's like a fulltime job," he said. He managed to evict her.

Then Smith moved into Pamela Joy's house and soon started "threatening" her, according to court documents. "I put a lock on the inside of my bedroom door because I was afraid to not lock it at night when I was asleep," said Joy.

Joy also took Smith to court. In an audio recording from the Jackson County Circuit Court, Smith was heard talking back to the judge. "She was arguing with the judge, it was to my mind really shocking," said Joy.

But one thing that didn't happen to landlords in Oregon, and was the financial ruin for some in California, involved Smith withholding rent.

In Oregon, if there's a landlord tenant dispute, tenants still have to pay rent into an escrow account held by the court. Whoever wins gets the money. I am of the opinion that CA should adopt a similar law. This would curb a lot of abuse.

The Law Offices of James V. Sansone is located in Santa Rosa, California and litigates numerous landlord tenant disputes including evictions, contract and lease disputes, evictions after foreclosure, and problem tenants, 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.

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Selecting a Property Manager, Screening Renters, Maintenance Concerns & Fees

November 15, 2011, by Law Offices of James V. Sansone

Property-Management-Tax-Tips.jpgWhat is the single most important skill you should look for in a property management firm? The ability to screen out high risk applicants and rent to the good ones. This is critical to avoid potential expensive litigation in the future.

You should always find a manager who knows how to screen prospective renters. The property management company should have a written policy that is given to prospective renters. Having a policy can prevent the company from illegally discriminating, even unintentional discrimination. Other questions to ask include (1) is the written policy adhered to?, (2) How are exceptions made?, and (3) Does the supervisor review every decision?

It is not recommended that you require the property management firm to contact you prior to accepting a new resident. This can lead to a fair housing compliant.

In order to locate good renters you should set up criteria well before your search. Some of the more popular requirements include:

Continue reading "Selecting a Property Manager, Screening Renters, Maintenance Concerns & Fees" »

Attorney Neglect Does Not Create A Credit Counseling Exception - Santa Rosa Bankruptcy

November 3, 2011, by Law Offices of James V. Sansone

creditcards.jpgIn the case of Dannielle Lewis, 22 CBN 29, 2011 WL 3962817, the debtors filed a petition for Chapter 7 Bankruptcy on July 22, 2011. The credit counseling certificate stated that she received credit counseling on August 1, 2011. The US Trustee moved to dismiss pursuant to Section 109(h)(1). At the hearing, the debtor's counsel said his legal assistant inadvertently filed the petition while he was on vacation and before the debtor obtained her credit counseling certificate.

The debtor said that she was delayed in completing the credit counseling because she was recovering from an injury at work. She argued that the court had discretion to waive the credit counseling requirement. The court, however, found that is discretion was limited to application of Section 109(h)'s stated exceptions. "Debtor did not file a certification of exigent circumstances under Section 109(h)(3) with her petition in order to receive a waiver of the credit counseling requirement. She has not asserted that she was unable to complete counseling due to incapacity, disability or active military duty. To the contrary, Debtor received credit counseling ten days after the bankruptcy petition was filed," the court said. "Section 109(h) does not contain an exception for the grounds raised by Debtor, i.e. lack of intent, de minimus delay, possible creditor confusion and judicial economy."

It appears the requirements of obtaining credit counseling pre-petition are clear and mandatory.

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their bankruptcy needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.