Sonoma County Lawyer Blog

The U.S. Supreme Court may be prepared to hear a case that could potentially outlaw rent control. New York City landlord James Harmon contends the City's rent control law constitutes a physical taking of property in violation of the Fifth Amendment. The Court has not yet announced whether it will hear the case but has asked the state and city of New York to respond to Harmon's argument.

Harmon, 68, lives on Manhattan's Upper West Side in a five-story brownstone that has been in his family since his grandfather bought it in 1949. In 1969, the building became subject to New York City's Rent Stabilization Law, which caps the percentage that a landlord may raise rents each year.

By the time Harmon and his wife took full ownership of the brownstone in 2005, three of the six units were renting at rates that were 59 percent below-market to tenants that Harmon claims did not need the discount.

Harmon argues that he and his wife effectively have been financing the approximately $1500 monthly mortgage payments on the Long Island home of one of their rent stabilized tenants who pays $951.22 monthly rent. According to his petition, Harmon has spent two years and more than $30,000 in legal fees trying to recover possession of one rent-stabilized apartment for one of his grandchildren.

The U.S. Supreme Court now wants to review records on this case from two lower courts that previously rejected Harmon's petition and may decide to hear arguments some time before October of this year.

For further information on this case and on rent control in general, use the links below.

Washington Post Article

Wall Street Journal Article

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.

According to CAA, in the last weeks of February, California lawmakers introduced hundreds of new bills that would impact the rental housing industry, here is a look at what CAA has identified so far.

AB 1610 - Accessibility - This bill would establish notice requirements for an alleged aggrieved party to follow before bringing an action against a business for an alleged violation of access rights of a disabled individual. The bill would require that party to provide specified notice to the owner of the property, agent, or other responsible party where the alleged violation occurred. The bill would require that owner, agent, or other responsible party to respond within 30 days with a description of the improvements to be made or with a rebuttal to the allegations. If that owner, agent, or other responsible party elects to fix the alleged violation, the bill would provide 120 days to do so.

AB 1726 - Pools - This bill would require an apartment building with a swimming pool to employ at least one qualified pool operator, as defined, and to maintain and conspicuously post a current certificate of each qualified pool operator employed by the swimming pool owner. This bill would require originals or copies of the certificate or documentation of each qualified pool operator employed by the site to be available onsite for inspection by a local enforcement agency. It also would require every pool operator of a public swimming pool to be a qualified pool operator, and to take a pool operator training course and examination, as specified, approved by a local enforcement agency. This bill would require a pool operator training course to be registered and approved by a local enforcement agency, and would allow the enforcement agency to charge a registration fee, as specified.

Continue reading "New Bills That Will Impact Santa Rosa Landlords And Tenants" »

According to the National Association of Consumer Bankruptcy Attorneys (NACBA), the proposed principal paydown plan has hit a road block.

According to an e-mail update issued by the NACBA, NACBA's Principal Paydown Plan to help underwater homeowners in chapter 13 bankruptcy avoid foreclosure, has been endorsed by a substantial number of Members of Congress who in turn have pushed for action by the Federal Housing Finance Agency (FHFA) to implement the plan. In a series of private meetings and in letters to FHFA, Senators and Members of Congress have asked the FHFA to use its authority over Fannie Mae and Freddie Mac to require them to agree to the Principal Paydown Plan when proposed by a homeowner trying to save a home in chapter 13 bankruptcy.

Despite FHFA Director DeMarco's initial positive comments about the Principal Paydown Plan, which he said struck him as "being responsible," and a "credible way to address the crisis while recognizing various interests mortgaged properties," he recently wrote to Congress informing them that the agency would not be implementing the Principal Paydown Plan. FHFA concluded that few GSE borrowers have filed for chapter 13 bankruptcy and are underwater and therefore the proposal would not be all that helpful. They did, however, commit to doing what they can to help eligible borrowers in bankruptcy get the HAMP modifications they qualify for.

While the FHFA response is disappointing and inadequate, and we believe wrong, we are gratified that the many Members of Congress who have pushed for this solution continue to be engaged and are looking for ways to get the Principal Paydown Plan implemented despite the FHFA's position. These Members of Congress recognize, as so many of us do, that the foreclosure crisis is not going away anytime soon and so long as it continues, the nation will not enjoy the kind of recovery that is needed to stabilize the economy and get people back to work.

In US vs. Jones, the US Supreme Court was asked to decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

In a unanimous decision, the Supreme Court ruled that police cannot attach a GPS device to a criminal suspect's car to track their movements without first obtaining a search warrant.

While the Government contended that no "search" occurred, the Court thought differently. It is beyond dispute that a vehicle is an "effect" as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). Based on this, the Court reasoned that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a "search."

Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor a vehicle's movements, constitutes a search, meaning that a warrant is required.

"By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote.

This is probably not the end of these types of cases making their way to the US Supreme Court because the court did not rule on whether the exact search was reasonable, which means even if the Fourth Amendment applies in cases like this, it's possible that the use of GPS devices may be considered acceptable in some circumstances.

Continue reading "US Supreme Court Holds That Law Enforcement Need A Warrant Before GPS Tracking Can Be Used" »

On September 26,2009,plaintiff Cynthia Dempsey's pickup truck was struck by a CHP patrol vehicle on Highway 12 westbound,just east of Santa Rosa Avenue in Santa Rosa,causing the pickup to flip onto a guardrail,bounce off and skid along Highway 12 on its roof for approximately 100 feet.

The officer had received a call that a group of approximately 25-30 people,some dressed in baggy clothing,had gathered at the Santa Rosa DMV parking lot. He entered his vehicle and began a code three emergency response. Between Farmers Lane and the Maple Avenue on-ramp,the officer reached speeds exceeding 100 miles per hour.

A Sonoma County jury awarded plaintiff more than $1.2 million against the State of California for the injuries she suffered in a collision with a CHP officer. The State denied liability, contending that the officer was properly responding to an emergency and that a motorcycle driver was the primary cause of the accident. The jury found the officer to be negligent and apportioned 99.5% of the liability to the State.

As it turned out, the call ended up being a false alarm. However, do you think the result should have been different if the call ended up being valid and a gang fight was actually happening?

For more information, please click here

The Law Office of James V. Sansone was founded with the goal of providing individuals and local business owners with a meaningful and cost-efficient alternative to large law firms. We are pleased to offer experienced legal representation, while still offering reasonable rates that are favorable to what clients might expect in a large law firm setting.

Do 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.

As reported by CBS 5,

As the California rental market heats up, landlords need to do their homework.

Connie Cook bought a Sonoma County property eleven years ago, hoping to spend her retirement years there. Her plan was to rent out the converted barn to help pay the mortgage.

That plan was working well, that is until a single mother moved in with her teenage son in 2009.

Soon afterward, Gwen Smith, the new tenant, started complaining that a gas leak and unhealthy water were making the apartment uninhabitable.

Then, Smith stopped paying rent. But when Cook tried to evict her, Smith, who has a law degree, fought back in court by filing motion after motion - all while paying no rent.

A judge eventually ruled that Smith's conduct was "malicious," and her numerous court filings amounted to "tactical delay." He awarded Cook $49,000. But, unfortunately for Cook, Smith appealed the judgment, and that case is still pending.

It turns out this wasn't the first time Smith had stopped paying her rent.

As Connie Cook's finances dwindled, she turned to her local legal aid office, which told her they knew Gwen Smith. They called her "notorious."

Sebastopol homeowner Barbara Wilt rented part of her house to Smith in 2008.

A few weeks after moving in, Smith allegedly changed the locks, and began complaining that the apartment was uninhabitable.

But, when Wilt tried to enter the house to fix the alleged problems, she was met with a nasty surprise: the police.

Smith had called the police claiming someone was trying to break in. In one encounter, Smith even pepper sprayed Wilt.

"I just felt this liquid on my face, started swelling up, couldn't see, it was horrible," said Wilt.

When Wilt took Smith to court, Smith countersued, claiming she and her son suffered "property damage, illness, infections, and emotional trauma" - all from living in Wilt's "hellish basement."

Wilt eventually won a default judgment for more than $42,000. But Smith appealed that judgment as well.

A month ago, after three years of legal battles and a trip to the Supreme Court of California, the Supreme Court ruled in Wilt's favor, upholding the judgment against Smith.

And that's just two cases. CBS 5 found a total of eight judgments in eviction proceedings against Smith in four states.

Smith's law degree helped her work the system, but experts say California's tenant protection laws worked to her advantage.

According to attorney Jim Sansone, tenants can withhold rent while a case is pending. Faced with motion after motion, most landlords, he said, simply give up.

"I have a lot of landlords who come to me and say, you know what, I am going to figure out what the cost of defense is, and I am going to offer that to the tenant and waive all my rights," said Sansone.

CBS 5 offered Smith a chance to share her side of the story. After two weeks we tracked her down to the small town of Forestville.

Smith wouldn't speak with us, and her most recent landlord didn't want his name used. But, he did tell CBS 5 that Smith stayed for three months without paying rent.

The day after our encounter with Smith, she moved out of the Forestville home. Her whereabouts now are unknown.

Meanwhile, Barbara Wilt is still waiting to collect on her judgment.

"I still am just so flabbergasted and shocked and so disappointed and disillusioned with our justice system," Wilt said.

Connie Cook is still waiting for her money too. But, even if she gets it, it is already too late. Living on Social Security and with no rental income, Cook fell behind on her mortgage payments and lost her farmhouse to foreclosure.

"It breaks my heart, just breaks my heart," Cook said.

Continue reading "North Bay Tenant Accused Of Evading Rent For Years - Santa Rosa Landlords Beware!" »

9/10/2011 10:00 AM - 9/11/2011 10:00 AM at Maria Carillo High School

52 Teams & 619 Participants

JVS Law is a proud sponsor of the 2011 Santa Rosa Relay For Life.

Defamation, also called slander (for transitory statements) and libel (for written, broadcast, or otherwise published words), is an intentional false communication that harms a person's reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. There are several defenses that will defeat a defamation claim. The most popular defense is truth. If a statement is true it can't be defamatory.

After speaking to my contact at the Press Democrat, I learned that Gwen has filed this case in federal court. This is no doubt due to the fact that she is a well known litigant in the Sonoma County Courts and wanted a forum where she was not known by the judicial officers and courtroom clerks. At first glance you may think this was a smart move, but I have litigated cases in federal court. Federal judges are not nearly as patient as state court judges tend to be. Given Gwen's past court room antics, this can substantially jeopardize her case, this, of course is assuming she has a case, which in my opinion she does not.

Continue reading "Gwen Smith Has Filed A Defamation Action Against Reporter At Press Democrat and The Press Democrat" »

The good news is that the 1st District Court of Appeals dealt Gwendolyn Smith and her attorney Gary Levinson a loss. The bad news is that according to reports that have come into my office, Gwendolyn Smith is back in Sonoma County. Two callers reported to me that they saw her in Sebastopol living with a friend of hers who purports to be a yoga instructor. Landlords remember to perform background checks on your potential tenants.

Here is what the court of appeals had to say.

Defendant Gwendolyn Smith and her attorney failed to appear for trial in an unlawful detainer action. The trial court entered a default judgment. Defendant moved to set aside the default judgment under Code of Civil Procedure section 473. The trial court denied the motion, finding the failure to appear was part of a pattern of delaying tactics. Defendant contends she was entitled to relief.

We disagree and affirm.

Continue reading "Santa Rosa Landlord's Can Rejoice, Gwendolyn Smith Loses Appeal Against Sebastopol Landlord Barbara Wilt" »

As most Americans are aware as reported on Forbes.com, the "Cramdown Bill", which would have permitted bankruptcy judges to modify the conditions of underwater mortgages held by struggling homeowners, failed by a 45 to 51 vote in the Senate, falling remotely short of the 60 votes required for its passage back in 2009.

As a result of this defeat, the National Association of Consumer Bankruptcy Attorneys, (NACBA), announced a new proposal to address the pandemonium of the mortgage industry that is causing the foreclosure and robo-signer crises across the United States. The Principal Paydown Plan, does not require legislation if it is approved by investors, insurers, and government agencies. These key players would require the acceptance of Chapter 13 Bankruptcy plans that include a specific condition detailing and implementing this principal pay down.

According to a NACBA news letter, some of the main components of the Principal Paydown Plan include:

Continue reading "Mortgage Principal Pay Down Plans In Santa Rosa Bankruptcy?" »

The first bills have been introduced by lawmakers at the State Capitol for the 2011-2012 session. As a result, Sonoma County tenants may soon get greater protections than they already possess under current California Law. Let's not forget, landlords are already subject to various new laws as of January 1, 2011.

Under current law, A landlord may initiate termination of a tenancy, before expiration of the term or period in which the tenancy would ordinarily expire, by providing a three-day notice to a tenant that the tenant has breached the terms of the rental agreement [see CCP § 1161(2)-(4)].

The unlawful detainer statute specifies that a landlord may give a tenant a three-day notice to pay or quit upon breach of the obligation to pay rent while the tenant retains possession of the subject property, CCP § 1161(2).

AB 265 was just introduced in Sacramento. This bill would increase the time of the notice period for a Notice to Pay Rent or Quit from 3 days to 14 days. The harmful impacts to landlords are apparent: (1) Delays in rent payments, (2) inability for landlords to meet their own mortgage obligations, and an added delay in evictions, to name only a few.

California is already one state that may take tenant protections too far. As I have stated previously, I don't believe that tenants should be abused and taken advantage of, but when will it be enough? If you are a concerned property owner/landlord there are groups out there to help you fight for your forgotten rights. Such groups include the California Apartment Association and North Coast Rental Housing Association

Peter Ottenweller: Governor Arnold Schwarzenegger has appointed Peter K. Ottenweller to a judgeship in the Sonoma County Superior Court. Click here for more information.

Anthony Wheeldin: The Superior Court of California, County of Sonoma has appointed Anthony Wheeldin to the position of Superior Court Commissioner. Click here for more information.