A buyer purchasing after a foreclosure sale, can serve a notice to quit to a tenant/former owner before recording the deed, e.g. before title is “perfected”. Citing Code of Civil Procedure § 1161a and U.S. Financial, L.P. v. McLitus (2016) 6 Cal.App.5th Supp. 1, the Court of Appeal affirmed, stating: “Here we reject the occupant’s claim that the notice to quit is premature, and hold that Code of Civil Procedure section 1161a does not require that title be recorded before the notice to quit is served.” (Dr. Leevil, LLC v. Westlake Health Care Center (Cal. App. 2nd Dist., Div. 6, 2017) 9 Cal.App.5th 450.) http://www.courts.ca.gov/opinions/documents/B266931.DOC
The Department of Business Oversight maintains a handy list of names of banks in California and where to serve them. Go to http://www.dbo.ca.gov/Laws_&_Regs/legislation/service_of_legal_process/
While Code of Civil Procedure § 1717a bars attorneys fees if the cause of action is on a contract, look to Santisas v. Goodin (1998) 17 Cal.4th 599. In Santisas, attorney fees were awarded on a tort claim because the home purchase agreement attorney fee provision stated it covered claims “ ‘arising out of the execution of this agreement or the sale’ ” which was interpreted as being broad enough to cover tort claims and contract claims. These attorneys fees, would then be claimed as an element of costs. (Code Civ. Proc., §§1032(a)(4) and §1033.5, subd. (a)(10)(A).)
A summary of how some prior courts have interpreted other provisions click here: Continue Reading Attorneys Fees Awarded on Tort Claims due to an overbroad attorney fee clause even on a dismissed case
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.
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.”