Attorney Fees gavelWhile 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

Contract

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

house roll money earnest_money_depositReal Estate Purchase Agreements and Leases (e.g. CAR forms) include deposits may or may not be refundable.    Liquidated damages must bear a reasonable relation to the anticipated damages incurred.  (See Civil Code §§1670, 1671).  For Residential transactions, if 3% or less the presumption is the liquidated damages amount is reasonable.  (Civil Code §1675(c)  Assuming the buyer refuses to allow the deposit to be released to seller, then a liquidated damages clause also benefits the seller as they do not need to prove actual damages from the loss of the sale.  Continue Reading Liquidated Damages Clause → Is the Deposit Refundable to the Buyer?

DohA written contract for the sale of real property included an integration clause stating that “no extrinsic evidence whatsoever may be introduced in any judicial proceedings involving this Agreement.” The referee who tried the case considered such evidence, finding for the plaintiff only to be reversed by the Court of Appeal.  Hot Rods, LLC v. Northrop Grumman Systems Corp. (2015) 242 CA4th 1166 Continue Reading Contracting to exclude “extrinsic evidence” is enforceable. ( Hot Rods, LLC v. Northrop Grumman Systems Corp. (2015) 242 CA4th 1166