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how can i prove gross negligence in this property manager.

how can i prove gross negligence in this property manager.
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Answered in 1 hour by:
10/12/2008
P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 35,677
Experience: 12+ yrs. of experience including real estate law.
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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
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 35,677
Experience: 12+ yrs. of experience including real estate law.
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Customer reply replied 9 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,
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
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 35,677
Experience: 12+ yrs. of experience including real estate law.
Verified
P. Simmons and 87 other Real Estate Law Specialists are ready to help you
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P. Simmons
P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 35,677
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Experience: 12+ yrs. of experience including real estate law.

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