Tag: Orange County

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ARE YOU A STUBBORN FOOL OR A STUBBORN VISIONARY? by Patrick J. D’Arcy

THE STUBBORN FOOL VS. THE STUBBORN GENIUS

We all know them. We are “them.” Stubborn. Unbending. Unyielding. Arms across your chest with your hands over your ears stubborn. Are you being smart or, well, a jackass? That’s a question that has easy (and not so easy) subparts.

SOME KINDS WORDS FOR THE EMBATTLED DONKEY!

When we think of “stubborn,” the poor donkey comes to mind. (Sorry to you donkey lovers about the “jackass” reference!). Donkeys really get a bad rap. They are fascinating animals. In your stubborn beliefs, you think of a donkey as dumb, legs locked, and refusing to do work. Well, let’s talk about that. A donkey will fight and kill a hyena. Donkeys are smarter than horses, and have a better field of vision. In terms of strength, donkeys are stronger than horses their own size. The locking of the legs is a common trait for donkeys. You know why? Because it is careful where it steps, to avoid a fatal injury. You can’t just force a donkey to walk. He is afraid he’ll get injured. His hoofs are for climbing, and by default, he is careful where he treds. Donkeys are as intelligent as dolphins and dogs, and have excellent memories. Donkeys are very affectionate, but that takes time to develop with them. Donkeys are awesome protectors against predators, such as foxes and wolves. Ok, back to the article.

THE STUBBORN FOOL

These types are easy to spot. Like a sea anemone, they refuse to change. They drive 55 mph when traffic flies by at 85 mph. They refuse to use Google Maps, and instead, get out their 1970’s Thomas Guide for city streets, and through trial and error, find their way on to the correct grid. Or worse, they stop at the gas station expecting to find a fold-out map of the general location of the city, and “wing it” by asking locals. The navigation system in their car is “too complicated.”

You will observe them in their native habitat at home or at work. Whatever you tell them about the latest greatest, they say “No. I’m fine.” You found the answer to a question they had on the internet. “Nah, I know the librarian. I will go see and talk to him, and look for a book on the topic.” “Google? Why? I was born way before that, and I got along just fine without it.”

THE STUBBORN GENIUS.

These types seem like oddities to the conventional thinker. That’s because they are not conventional thinkers. To the stubborn genius, the conventional thinker is the stubborn fool. He’s the guy that invented the navigation system that the stubborn fool refuses to even learn. He invented air conditioning, the Mac, the Iphone, and fiber optics. He’s Thomas Edison. After 2,000 “failures” he got the light bulb to work. The stubborn genius transforms our lives, and his vision eventually our new normal. The stubborn genius is often misunderstood, under attack, and fighting to make change happen to improve our lives, or find a better way of doing things, while fending off attacks from stubborn fools.

YOU CAN BE A MIXTURE OF BOTH.

Stubbornness is not a “bad” thing. It just is. These traits are just traits. You can put whatever label you want on it, but it comes down to behavior. The stubborn fool is closed-minded. But, being “closed-minded” is wisdom if his has direct experience in that area, and knows the pitfalls of what a person proposes to do. You can be “stubborn” because you refuse to eat cottage cheese. Again, this is not “good” or “bad.” It’s a trait or preference, and nobody is harmed by it.

People who are stubborn in the face of danger are fools. Ask the guy that captained the Titanic. He was stubborn as hell. In his mind, the ship was unsinkable. It turns out it was very sinkable, as the metal was not cured properly. The captain let his pride, ego or need for control get the best of him. You can be stubborn by waiving off people’s ideas. Stubbornness must be viewed in context. (I will never, and I mean, never, eat cottage cheese). I am always open to new ideas on just about anything else. However, as noted above, if the idea is on something you have directly seen first-hand, and it was bad, then hold on to your stubbornness. The person advocating it is being stubborn too, but in a foolish way.

CONCLUSION

On the extremes, we can identify foolish and genius stubbornness. The genius perseveres despite the set backs. He has a goal that he is trying to achieve. His behavior stems from being aggressive, confident and a visionary. The stubborn fool is closed-minded, and won’t listen to anything unless he agrees with it. Some of this behavior can be traced to insecurity. Some of it is rational too – like the guy in Office Space who held rigidly to an outdated process to save his job.

Like with all types of behaviors, it is complicated by the personalities, needs, desires and the beliefs of persons, which are as varied as you can imagine. When thinking about this, ask yourself, “In what areas am I being stubborn, and does this hinder or advance me in my career and my life?” Focus on you, and work on your own self-betterment. Keeping an open mind is the anti-thesis of being stubborn. Who knows, you might surprise yourself. I now eat figs and avocados after swearing them off my entire life. I threw away my Thomas Guide too.

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Be Careful When Firing Off That Bad Review Or Fake Review On Yelp Or Google: You Can Be Sued For Defamation. By: Patrick J. D’Arcy, Irvine, Attorney

Thinking of Slinging Mud With A Bad Review On Yelp? Brace Yourself For Nasty Litigation.

Let’s say you go to a restaurant, and the service is terrible. I mean, really bad. It took two hours to get your pizza, it was cold, and the waiter was rude as hell. You decide to leave a 1 star review, and write the following:

“Horrible experience. I hated the place. It took 3 hours to get my pizza, and it had a dozen dead cockroaches in it, and the waiter called me a “jackass,” challenged me to a fight, and then called my wife a whore. I told the manager about it, and she called me an “idiot” and a liar.”

Now, some things you say are pure opinion, and not defamatory. There is no such thing as a defamatory opinion, but there are defamatory facts. Saying you “hated the place” cannot be proven true or false, as it is your opinion. You could have liked it until now. Warning – saying something is “just my opinion” isn’t likely to save you. If you say, “In my opinion, Gary is a liar,” you have admitted facts by implication, which means you defamed him. You can’t save your defamatory statements by calling it your opinion.

Insults vs. Defamation – Insults Can Still Get You Sued

Like everything else, the law has a lot of exceptions. Generally, insults can’t result in any damages, unless you say something outrageous to a young child, or a person with a medical condition, etc. While you could be sued for anything, being sued for an insult can result in the case being dropped. Calling someone a “jackass” is an insult, and doesn’t count as defamation. Things change when you call a woman “a whore” – that is defamation per se (automatic defamation, unless of course, she is, then you have the “truth” defense). Same with calling someone “a liar.” Unless they are a liar, that too is defamation. False facts will get you into trouble. Saying you waited “3 hours” (when it was 2) is a false fact, as are stating that there were “cockroaches” in the pizza. You can be sued for falsely implying something negative: “Isn’t this diner subject to health regulations?” Well it’s a question, and not a statement, the “take away” isn’t good.

The restaurant gets wind of this post, and pulls up the videotape to show you lied, and then sues you for defamation. A good defamation lawyer will get you into instant trouble. Your recourse could be to file an anti-SLAPP motion – a motion that says what you did was essentially free speech on a public issue. That will not hold for false facts and false implications that harm the restaurant. Those will be disputed facts, so you lose the motion. The Court when viewing the evidence essentially gives the win to restaurant for facts in dispute for the purposes of the anti-SLAPP motion. If you win the anti-SLAPP, the case is over and you’re done. You also get your legal fees. In the interim, your hastily posted review has burned you for at least $10K in legal fees.

California Has A One-Year Statute of Limitation For Defamation

If more than one year has elapsed since the post went up, you are in the clear in California (unless it was published in a seldom or archaic journal that is not publicly accessible). They only have one year to bring the defamation claim.

Even though I have experienced terrible service, or even gross shit (such as a waiter coughing and sneezing right on a table with dishes), I do not write bad reviews. The legal trouble – which I could deal with as a trial lawyer – is not worth it. Your bad review could mean two or more years of legal wrangling, plus the potential damage award and the legal fees that pile up. There’s nothing wrong with informing the manager, and then kindly inform them that you are not going on Yelp to make the matter public. You will see a sigh of relief on the manager’s part. Legitimate businesses really want to do the right things, and see you come back as a customer. Bad reviews, especially FAKE ONES inflict damage on a restaurant’s reputation. Rather than “Yelp” them, see if you can calmly tell the manager what happened. I am positive they’ll want to fix the problem. And if you are nice about it, and not there to nuke the place, you’ll get even better service when you show up next time.

Now, are there exceptions? Sure. If I saw restaurant employees spitting in food, I’d sure as hell write a bad review. Otherwise, if you are going to leave a bad review, leave out the person’s name (because you add more plaintiffs against you). When you say “Brenda at The Musty Bucket Of Chicken….,” you have defamed Brenda and the Musty Bucket. That’s two defamation lawsuits. My point is that leave bad reviews for those times when it is really deserved. And, when you mention an employee’s name at the store, understand the emotional trauma you put upon that person. Each day that review is up, she is reminded of what you said, probably got into trouble as well, and feels embarrassed. You have the power to hurt people with bad reviews. Exercise that discretion wisely or you could wind up a defendant in a lawsuit, and calling a guy like me to figure how to get you out of trouble. Or, the restaurant owner will call a guy like me and tell me to sue you.

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Tenants From Hell Warning Signs – by Patrick J. D’Arcy, Attorney

Imagine Having A Tenant Do This To You?

Tenants From Hell Teach You What You Didn’t Know About Landlord-Tenant Law

If you are a landlord, you must be on guard for the “tenants from hell.”  A “tenant from hell” is someone who will make your life a living hell by: 1) not paying the rent; 2) destroying your property; 3) being judgment proof when the Sheriff tosses them out; and 4) costing you a fortune in repair and renovation costs.  For those unacquainted with the an example of a tenant from hell, watch the classic movie, Pacific Heights, with Matt Modine and Melanie Griffith (as inexperienced landlords) getting rolled over by Michael Keaton, a tenant from hell.  Keaton drives a Porsche 911, issues bad rent checks, breeds rats and mice to drive out the other tenants, stages a fake fight with Modine to get him arrested and then kept away with a restraining order so that Keaton can try and kill Griffith while taking the building through legal action against the landlord.

I’ve evicted numerous tenants from hell.  Nearly all of them destroyed the home/apartment before they were evicted.   I recently evicted assholes renting beautiful homes in Turtle Ridge.  They drilled holes in the walls and filled the wall space with water as to claim “mold” injuries. Another just tore everything out of the house, after filing fake bankruptcies, etc.  I crushed them. But, the damage they did was real.

Poor Melanie Griffith.  She is an inexperienced and nice landlord about to be schooled by a professional tenant from hell, and risk losing her building to a Porsche driving “Carter Hayes,” who moved in with a bad check.  And that was just the beginning.

Tenants From Hell Warning Sign – They Are In A Hurry And Put Pressure Upon You To Move In

They are in a HURRY to move in.  There is some “emergency.”  They want you to bypass normal protocols – like waiting to see if the check actually clears.  They may even hand you a forged or fake money order or cashier’s check.  Once in – they are TENANTS.

More Tenants From Hell Warning Signs And Red Flags

  1. They fill out a rental application, but provide fake information and then “blind” you with a large deposit (that usually is backed by a worthless check).
  2. They will give you fake references and a fake landlord to “verify” their previous tenancy.
  3. They will show up nicely dressed and act like they have the pick of any apartment they want.
  4. THEY HAVE BAD CREDIT OR NO CREDIT HISTORY.  If a tenant has “bad” credit (e.g., below 700), then reject them, regardless of their story.  If they have no credit history, then, unless they are young adults, they are likely giving you a fake name.  Reject them too.
  5. They just opened a new bank account.  You can tell by looking at the check number.  Is it a low three digit (like “109”) or worse, a  two digit number?  This is not a full proof test, because they can request the bank to make the starting number a high one, just to lull you into sleep that they’ve had the account a long time.
  6. They ask for you to send them a lease to review – before you’ve approved them and checked out their financial history and references.  This scam entails you giving them a lease.  What they then do is sign it, forge your signature, break into the house after you have left, and then lie to the police and say that you signed a lease with them.  Most police will be wary about ejecting them as squatters with a copy of a “signed” lease.  This is the so-called “Gypsy” scam rampant on the east coast.
  7. Their previous “landlord” is really a family member.  They may say they’ve been living with in-laws, which is why they can’t list a “real” apartment building.
  8. They have no credit cards, and pay only in cash or money orders.
  9. They only lease their vehicles, are currently unemployed, or have almost no verifiable employment history at all.
  10. They must move in right away because they claim their kids are now in the wrong schools.
  11. They claim they don’t have a bank account.  People without bank accounts are weird.  How do you pay normal bills without a bank account?  Even the gas bill needs a check, right?  Those without bank accounts normally are barred from having them – due to bank fraud.

Tenants From Hell Screening Procedures – It Starts With Verifying Their Income, Credit, Savings And Eviction History.

Make them fill out a written application.

  1. Obtain a credit report – and charge them for it.  Tell them (in an application), that the $50 fee is non-refundable, and make them pay you with a separate check.  This will immediately alert you if they have a “new” checking account (or any bank account).  If they have no bank accounts, then it’s possible they cannot get one because of bank fraud from passing bad checks.  Tenants without bank accounts are highly suspicious – legitimate people need bank accounts.  I’d eliminate them from consideration.
  2. Make sure the application states that their filling out the application is NOT an approval of their tenancy, but a preliminary review of their qualifications.  Otherwise, they will lie and said you charged the $50 because you “approved” them.  They will then lie and say that they are moving in now because they already gave notice at their other place, and have nowhere to go.  Stand firm.  Keep it in writing.
  3. Require pay stubs and tax returns.  This will give you great information – and help you verify their previous addresses, their social security number, income, etc.  Tenants without pay stubs are eliminated.  Unemployed tenants are eliminated.  Write down all this information – it will come in handy when you obtain a judgment against them.
  4. Verify their job references.  Call the “boss,” and ask questions that only a boss would know.  Don’t just ask: “Does deadbeat work there at $35,000 per year?”  Instead, ask: “What is his pay?”  “Who is your supervisor?”  “What does he do?”  “How many employees at the company? “Who is the president?”  “What does your company do?”  Ask a bunch of questions.  The more information, the better.  A fake reference will only know the bare minimum – pay, job title, supervisor name.  A real boss will know a lot about the tenant.  Ask them to call you back and see if the caller ID shows it to be a business.
  5. Verify bank accounts.  Ask for bank statements. Don’t have any?  Eliminate them.
  6. Verify retirement accounts.  Don’t have any?  Why?  Nearly everyone has some form of retirement plan.  Unless a young adult, not having any form of retirement account makes me suspicious.
  7. Verify cars.  Leased?  Junk cars?  Most people with money do not drive junk cars.  People without money are high risk tenants.  Remember, you are running a business, not a charity.
  8. Verify previous addresses.  Call the landlords.  Ask specific questions.  This is not a formality.  You could be talking to the tenant from hell’s best friend, and not a real property manager.  Ask for their address.  Ask for their fax number (a good way to catch a fake reference).  Ask them to describe who lived there, the name of the complex, what is across the street from the complex, the amount of the rent, etc.  Fake references will get caught in not knowing small details.
  9. Verify income.  A good rule of thumb – rent shouldn’t be more than 33% of their gross pay.  So, make them prove up their income, and then see if the property is affordable.  Tenants from hell will move into very nice homes, because they have no intention of paying for the rent anyway.  If the rent is $1,500 per month, they better be making $4,500 per month or more.
  10. Check court records.  In Orange County, for example, you can run their names on Case searches, to see if they’ve been sued.   http://www.occourts.org/online-services/case-access/
  11. Run a full background check, which includes court filings against them.  You never know what could turn up.
  12. Check criminal records.  Do you want to rent to a sex offender?  A full criminal records search will be necessary.  Unfortunately, criminal records after seven years do not show up on credit reports.  Go to the FBI sex offender registry, and enter the names of the applicants.  http://www.fbi.gov/scams-safety/registry
  13. Still with me?  If you feel they have passed the screening, California allows you to charge up to 2X the rent as a deposit.  Do not let the deposit be used as last months rent.
  14. If they are late, hit them with a 3-day eviction notice.  Set the rules.  Tell them you evict late paying tenants.  If your lease gives them a grace period (and California law doesn’t require it), make it short, like two days.  Remember, that you cannot evict during the grace period.  And, if the last day of the grace period ends on a weekend or national holiday, it is advanced to the next day.  So, keep the grace period really short.
  15. Do not charge more than 5% as a late fee.  Going beyond that could be construed as an unenforceable penalty.
  16. Do not include late fees in your 3-day notices.  Instead, issue a 3-day notice just for the rent. Issue a separate 3-day notice for the late fees.
  17. Make them do a walk-thru before moving in and before handing them the keys.  Get a written description of the property, and a check list showing how everything is in working order.  Take pictures.  Make them sign a “Mold Addendum” to protect you if they make the house moldy, and then try to sue you for fake mold injuries.  Courts like signed walk-thru forms.  Damage that the tenants caused is their fault, not yours.
  18. Do periodic inspections.  Take a check sheet with you.  If you find damage, make them fix it immediately, or send them a 3-day notice.

Finally, the above is not a guarantee, but it is a great way to protect yourself.  The following is not legal advice but given for informational purposes.  The reader of this information assumes all risk.

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Patrick J. D’Arcy – Expertise in Real Estate Law and Real Estate Expert Witness

Patrick J. D’Arcy, an Irvine, California attorney, has substantial real estate  transactional experience, including representing owners of commercial shopping centers, developers, property managers and landlords.  Patrick J. D’Arcy has significant real estate litigation experience too, including representing lenders, owners and real estate brokers, as well as a myriad of real estate properties, from estate homes, shopping malls, airports and Wall Street investment portfolios.  Recently, Patrick J. D’Arcy obtained a full dismissal of a real estate lawsuit involving Burger King CEO’s in federal court, and wiped out a $450,000 damage claim – just on the pleadings.   The federal judge agreed with Mr. D’Arcy’s defenses, and issued a 20 page opinion dismissing the case completely.

Pat’s career in real estate includes many notable landmark properties: the $229 million title insurance policy issued on the Sherman Oaks Galleria in 1989, a $500 million hospital merger, the $2 billion Unocal-Tosco merger of Unocal oil fields, the $500 million merger of Macy’s, Wall Street portfolios of more than $1 billion, the airspace rights for a hotel, assisting the Burbank Airport to condemn land for airport expansion, the sale of the Bullocks Wilshire building to Southwestern Law School, the $90 million transfer of the Wells Fargo building in downtown Los Angeles, the sale of California Plaza, the sale and merger of Harvard and Westlake High Schools into “Harvard-Westlake,” the transfer of the former estate of Judy Garland in Malibu, and the sale and transfer of many properties owned by celebrities, including Paul Allen of Microsoft, John Landis, Steve Martin, Corbin Bernsen, Larry Hagman, Dolph Lundgren, Kenny Loggins, Eric Dickerson (of the Rams), Vidal Sassoon, and many others.

Pat has also drafted many types of real estate contracts, including mergers of businesses, buy-sell agreements, and corporate minutes, bylaws and other matters.

Patrick J. D’Arcy is an expert witness for real estate matters involving BRE licensed salespersons/brokers and title insurance.  Pat has a broker’s license, and was the original pioneer of the controlled-business relationships between title companies and mortgage companies (related to RESPA), and set up and managed these companies in various states, including Ohio, Minnesota, California, Texas and others. Pat created these companies for public companies such as First American, Weyerhauser, Centex and E-Loan.   The largest, in Texas, was projected to do $10 million per year, which Pat formed with himself as the original employee.