How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask P. Simmons Your Own Question

P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 27159
Experience:  12+ yrs. of experience including real estate law.
11181181
Type Your Real Estate Law Question Here...
P. Simmons is online now
A new question is answered every 9 seconds

how can i prove gross negligence in this property manager.

Resolved Question:

how can i prove gross negligence in this property manager.
Submitted: 6 years ago.
Category: Real Estate Law
Expert:  P. Simmons replied 6 years ago.
Thanks for the chance to assist

You may have some problems with this

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention.



From your description, its clear the manager was negligent. TO show gross negligence, you will need to show that he "consciously and voluntarily disregarded the need to use reasonable care"

From your description I am not sure you have it, but if you can show this was not the first time...that is with prior customers he made similar errors. If you have evidence that he was misusing controlled substances or alcohol this could help your case. The experience of the property manager may help, if you can show that in the past he took all the proper steps but in your case, disregarded all of his experience and training you may have a shot. Key is the requirement to show "conscious and voluntary disregard" If you can support this, you have a good argument.





P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 27159
Experience: 12+ yrs. of experience including real estate law.
P. Simmons and 10 other Real Estate Law Specialists are ready to help you
Customer: replied 6 years ago.
Thank you for your reply. We went to State of Ca Dept of Real Esate busienss portal about broker licensee's info such as license ID, etc., and it says No disciplinary action. Does this help to build the case? Also, in the small claims suit, our original complaint to this property manager was about "breach of fiduciary duty". But judge's decision was this defendant did not commit gross negligence so we did not get any $award. Is gross negligence and fiduciary duty closely related? Is this judge's decision quite standard in the case like this? The judge did imply that he was negligent. Two attorneys we consulted said yes the manager committed gross negligence and we can sue for the deposit but I sued for the total amount that is uncollected rent included. Could this have been a problem? Should I have sued only for the deposit? Also, if it is not gross negligence, can I argue that since it is at least negligent therefore we should be awarded just the deposit portion (based on the degree of negligence)?   I know motion to vacate plea is high standard. Is it worth a try to argue using this guy never commited any wrong doings except in our case? There was also a time facter too. He only gave us a week to vacate our house so renters can move in. He did not wait until check to be cleared and rushed them to move in. Sorry about too many questions. Thanks,
Expert:  P. Simmons replied 6 years ago.
Thanks for accepting.

I will try and field your questions one at a time;



"Is gross negligence and fiduciary duty closely related?"

Somewhat.
A Fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.

A fiduciary duty is the highest standard of care at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom he owes the duty: he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents.

On the other hand, gross negligence is negligence in the extreme...so, in some regards XXXXX XXXXX at opposite ends of a spectrum...with fiduciary duty at one end and "gross" negligence at the other. Since the property manager had a fiduciary duty, he should not have been negligent...and if you can show he was grossly negligent, then you may be able to win your claim




"Is this judge's decision quite standard in the case like this?"
I believe that if you can show that the other person breached a duty that he owed to you, you should be able to recover. This judge has decided that you must not only show a breach, but gross negligence in relation to the breach. The judge ruled that if you want to hold him accountable, you need to show more than a simple breech, but that it was a "bad" or "gross breach" of this duty. If you want to convince this judge, you need to point to facts that support the breach was "gross"

As for your claim (asking for deposit as well as the missed rent)...they are separate issues...It seems the standard may be lower for one than the other. You should ask the judge if you can for his ruling on each...since they are different issues...it may be for the deposit, you only need to show that he breached, not that it was a gross breach. SO, you may be able to limit your argument and just focus on the deposit.

Typically, a judge will tell you how he rules on individual issues if you ask. If you can ask, ask. If not, you can address each separately in your brief

Understand that you can appeal the small claims judgment, so if this judge got it wrong, you may be able to correct. However, you will need to retain an attorney to ensure the best chance of success


As for his no disciplinary record, that is is a wash...I think its a neutral and does not help or hurt significantly. So, it will be a neutral in your case unless you can show WHY this person made the mistake in your case







































P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 27159
Experience: 12+ yrs. of experience including real estate law.
P. Simmons and 10 other Real Estate Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Lawyer

    Satisfied Customers:

    6227
    20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Lawyer

    Satisfied Customers:

    4966
    13 years real estate, Realtor. Landlord 24+ years
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    4446
    I've more than 27 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg Ray's Avatar

    Ray

    Lawyer

    Satisfied Customers:

    4030
    Texas Attorney for 29 years dealing in real estate
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    2377
    12+ yrs. of experience including real estate law.
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    2355
    B.A.; M.B.A.; J.D.
 
 
 

Related Real Estate Law Questions

Chat Now With A Real Estate Lawyer
P. Simmons
P. Simmons
Attorney
2565 Satisfied Customers
12+ yrs. of experience including real estate law.