In Pulte Home Corporation v. American Safety Indemnity Co. (2017) 14 CA5th 1086 a homeowner sued for latent construction defects.  The General Contractor sought a defense under its sub’s general liability policy as an additional insured.  The insurer denied coverage because the subcontractor’s work was completed work as opposed to “ongoing work”.  The GC sued for bad faith and won.  The Appellate Court held coverage is “when the property physically damaged”,  not when the homeowner was “financially damaged by the purchase of the home”.  In other words, if it is possible that the property was damaged during construction, then there is coverage.   (This is also similar to McMillin Management Services v. Financial Pacific Ins. (2017) 17 Cal.App.5th 187

Arave v. Merrill Lynch (2018) 19 Cal.App.5th 525 reinforces that in labor law employees have nothing to lose from suing.  Plaintiff sued his employer under FEHA and lost.  The defendant employer previously served a CCP 998 offer to settle of $100,000 which was rejected.  The employee lost his case and the trial court awarded $83,000 in costs to the employer.  This was reversed holding only the “frivolous claim”  statute Labor Code 218.5(a) could shift costs/fees to a losing employee.

Note: there is now a split in authority on this 998 issue so wait for the Supreme Court to resolve this.

In Bustos v. Global P.E.T. (2018) 19 CA5 th 558 an employee who proved discrimination as a motivating factor due to his disability (carpal tunnel syndrome vs. employer who said it was an economic lay off) lost an award of attorneys fees and costs under Harris v. City of Santa Monica (2013) 56 CA4th 203 because he did not win any monetary damages even if discrimination was a motivating factor because Harris only says the court “may” award fees, not that it is mandatory.

Also, under contract law, courts have discretion when neither side achieved a complete victory.  (Marina Pacifica HOA v. Southern Californian Financial (2018) 20 CA5th 191(

I guess Congress persons do not pay alimony.  Part of the Tax Cuts and Jobs Act is that Internal Revenue Code §71 is now eliminated so any divorce alimony agreements made after December 31, 2018 will no longer result on a tax deduction for alimony paid.  The key is the divorce settlement or decree must be reduced to a judgment by December 31, 2018 to be deductible.  The spousal support software programs now will be re-programmed so the Alice in Wonderland meets quantum physics etc. showing that this reference in the famous case anti alimony software case of In re Marriage of Schulze (1997) 60 Cal.App. 4th 519 is still relevant!

Multiple contracts invoke Civil Code §8186 (former §3117) which can  be fatal to mechanic’s lien claims. Section 8186 provides when projects are built pursuant to more than one “direct” contract, with each contract covering a particular portion of the work, the owner may record separate notices of completion for each particular portion of the work performed under each contract, rather than waiting for completion of the project as a whole.  This affects the time to record a mechanics lien.  (See also Gunther v. McCormick (1922) 60 Cal.App. 350) For example …. Continue Reading Mechanic’s Lien Problems with Multiple Contracts (Civil Code §8186)

Looking at the CCP about Partition and the equitable powers of the court,  the person paying the down payment should be reimbursed what they paid for the down payment before any distribution of the proceeds.  In re Marriage of Leversee (1984) 156 Cal. App. 3d 891 involved a married couple who prior to marriage  purchased a home as joint tenants. Id. at 894. The court of appeal held that the house was not as community property, and that the property’s disposition must be pursued in a partition action. Id. at 897. The court stated that in such a partition action “the court may order an equitable compensatory adjustment to compensate [the plaintiff] for her use of separate funds for the down payment on the residence.” Id. Similarly in Demetris v. Demetris (1954) 125 Cal. App. 2d 440 where one co-tenant had paid more than his fair share of the purchase price the court held that the co-tenant was entitled to a credit. Id. at 444 – 445. Therefore, one co-tenant may be awarded credit for having paid more than her share of the down payment or purchase price.

Often after a bank levy or eviction (unlawful detainer) lock out, the defendant files a motion for a stay or to be let back into possession.  Code of Civil Procedure § 918 can only “stay the enforcement of an judgment or order”.  There is nothing to stay after the levy or lockout occurred.  As stated in Del Riccio v. Superior Court of Cal., in and for Los Angeles County (1952) 115 Cal.App.2d 29, 31 after the levy, “… the court could not, by ordering a stay, undo what had already been done so as to deprive the creditor of ownership and use of money collected under the writ.”

In Marcus and Millichap Real Estate (April 30, 2018) G053953, a sympathetic Court reversed a ruling so that a once wealthy, but now poor Plaintiff who lost more than $2.8million by the defendants for elder abuse and breach of fiduciary duty, and after being in arbitration for many years, ask the trial court to transfer the case back to the Superior Court in a declaratory relief action citing Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87.  The trial court denied the relief, but the Court of Appeal rode in on their shiny horse and saved them !  The triable issue was if the plaintiffs had a present ability to pay her agreed arbitration share.

The Court citing precedent that a defendant cannot avoid potential liability by forcing a matter to arbitration and then making it so expensive that plaintiff has no choice but to give up, allowed the Plaintiff to proceed in the Superior Court.  I like this case because it shows how the law can do what is right, and not be narrow with a “but the contract says” position.

 

Code of Civil Procedure 1856(g) provides that parol (verbal) evidence to explain the circumstances under which the agreement, to which it relates,  explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud.    Further, parol evidence is admissible even if the contract itself is clear or not in dispute.

See also recent case of IIG Wireless, Inc. v. Yi following Riverisland Cold Storage v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169 which reversed the 1935 California Supreme Court Bank of America v. Pendergrass case.  CCP 1856 is the tool plaintiffs can use against fraudsters!