Usually clients do not understand or want to respond to discovery. Same with lawyers, but be careful with pre-signed verification forms. At trial it does not look good when the client testifies he never saw the discovery before. In Drociak v State Bar (1991) 52 Cal. 3d 1085, a lawyer had obtained several pre-signed verifications from his client. After attempting to locate her without success, and with discovery due, he attached a pre-signed verification as an accommodation to his client to interrogatories he created from information in the client’s file. Drociak was disciplined and suspended for 30 days when it was subsequently learned that his client had died. ‘The use of pre-signed verification in discovery proceedings without first consulting with the client to assure that any assertions of fact are true is a clear and serious violation of the statutes and rules.'”
Most landlords will have a tenant requesting a “service” or “companion” animal and show a vague note from a doctor supporting this request. This is an area where the unwary landlord can be bitten pretty hard, but here is an idea which may work, even if it may be almost impossible to get the DA or Police to file an action. Cite Penal Code §365.7 to the tenant and say if he is misrepresenting that his dog is a Licensed or qualified service animal, then you will bring an action against him citing this statute. Continue Reading Fighting Phony Service Animal Requests (Penal Code §365.7)
A common question is how to count the days referred to in the Real Estate Purchase Agreement and related CAR (Calif. Assoc. of Real Estate) forms. In October 2016 CAR published a concise article on this in their magazine. In essence the CAR attorneys confirmed that every day counts, even holidays, but if the last day is a weekend or holiday, then the next business day would be the last day. That confirms with Code of Civil Procedure §12. More specific examples how to apply this are as follows and are in this great article and summarized below. See also http://www.onlinedigitalpubs.com/publication/?i=341167 Continue Reading Counting Days and Loopholes in CAR Real Estate Purchase Agreement Forms
While Commercial Code 3118(a) provides for a 6 year statute of limitations which can apply to a promissory note (9-109(a)(3). The key is this ONLY applies to a negotiable instrument (Comm. Code §3102) So, you have to make sure your promissory note falls under the Commercial Code. Most real estate promissory notes do NOT qualify as negotiable instruments. Here are some factors to consider : Continue Reading Does a 6 year statute of limitations apply to a promissory note secured by real property?
Lender counsel (e.g. debt collectors) often argue a guarantor debtor has no defense as they waived all defenses. That is not true. See California Bank and Trust v. Thomas Del Ponti (2014) 232 Cal.App. 4th 162. The court held Civil Code §2856 ONLY waives those defenses specified so defenses such as unclean hands or equitable defenses remain valid. The point is a lender cannot take advantage of its own wrong.
- (a) A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.
- (b) A party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer.
Extensions to respond to the complaint AFTER the initial 30 day period do NOT keep open the time to demurrer! Crazy? As with many things, the trial court has discretion to consider an untimely demurrer if it does not affect substantive rights of the plaintiff. (Jackson v. Doe (2011) 192 Cal. App. 4th 742, 749–750). The 30 day language is not mandatory and only applies to the initial demurrer not to amended complaints. (McAllister v. County of Monterey (2007) 147 Cal. App. 4th 253, 280)
The court can also increase the time to file a demurrer “in furtherance of justice”. See also CCP §473(a)(1).
In business and real estate litigation demurrers help clean up cases. When motions/demurrers were scheduled 6 months or more out Rule 3.1320(d) did not matter. But now with the new pay the filing fee when you reserve a hearing date rule, the calendars have opened up and you can set dates with 16 court days notice! Now you must watch the rule that requires the hearing on demurrers be heard by the court within 35 days after filing (usually your first appearance).
The new Code of Civil Procedure §430.41 requires the parties to discuss at least 5 days before filing a demurrer the reasons why the demurring party believes the pleading is defective. A declaration must also be attached to the filed demurrer showing compliance with this new law. But what happens if you are retained 5 days (or less) before a response is due? Well, if you want to demurrer, you can file a document with the court, pay the first appearance fee and effectively obtain a 30 day extension to respond!
One odd part to this statute is the court cannot deny the demurrer if your meet and confer is insufficient.
CCP 431.41(4) states: ” Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”
There are many other important aspects to Section 430.41 such as it does not apply to unlawful detainer actions and limits on amendment to pleadings, further meet and confers, etc. so give read it thoroughly.
If a tenant breaks back into, and moves into the property after being evicted, the following laws may be enforced against the tenant by the local police department or Sheriff’s (keep their card after the lockout). However, the specific penalties are a possible misdemeanor or contempt of court. In all likelihood no prosecution will occur, but the police/sheriff will remove them again and give a stern warning. The problem here is that the specific Penal Code statutes state “returns to settle, reside…” or “returns”. That seems to mean moving back in, not just to return to get is things out. But there is still vandalism, trespass and other possible violations to charge the former tenant. Some applicable statutes are here … Continue Reading Tenant Re-entry After Eviction Penalties (Penal Code §§419; 602.5; CCP §1210)
It’s been a while, but today I heard of a renegade landlord doing self help, so here is my warning to landlords who are fed up with their tenant. Stop, call a lawyer or the police before taking the laws into your own hands or risk liability and a large lawsuit. (See Code of Civil Procedure §789.3) More below… Continue Reading Illegal Evictions and Other Landlord No No’s (Criminal and Civil Liability) (CCP §789.3)