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)
The Business and Professions Code §7199 provides up to four years to bring suit for breach of a home inspector‘s duty to use the degree of care a reasonably prudent home inspector would exercise.
Moreno v. Sanchez, 106 Cal. App. 4th (2003) 1415, 1429
Business and Professions Code section 7199 provides the time to bring an action against a home inspector for “breach of duty arising from a home inspection report shall not exceed four years from the date of the inspection.”
Statutes of limitations are confusing. A common mistake is most lawyers do not know that the statute of limitations to file a lawsuit against a real estate broker runs from the date of possession, or date of close of escrow, not discovery of the mistake, misrepresentation, breach or harm. See Civil Code §2079.4.
Civil Code § 2079.4. Limitation of actions
In no event shall the time for commencement of legal action for breach of duty imposed by this article exceed two years from the date of possession, which means the date of recordation, the date of close of escrow, or the date of occupancy, whichever occurs first.
The world of trusts is quite unique. Trusts not only can be formed verbally, but notarization is not required. Probate Code §§ 15200, 15206 and 15207 are silent as to requiring a notarization, therefore, no notarization required! A trust is essentially a contract. But for real property, it must be in writing. Probate Code §15206
A judgment debtor (he essentially acted as an attorney even before passing the bar exam, and thought nothing of preventing a conflict of interest with his client) was ordered to produce his tax returns as to a half a million dollar judgment against him. The Court of Appeal stated the purpose of a judgment debtor examination is to leave no stone unturned, and the debtor must produce his tax returns. (Li v. Yan (2016) 247 Cal. App. 4th 56.) http://www.courts.ca.gov/opinions/documents/A144994.DOC Continue Reading Judgment Debtor Required to Produce Tax Returns at ORAP (Li v. Yan (2016) 247 Cal. App. 4th 56)