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!

Finally, a common sense ruling.

After settling a class action lawsuit against temporary staffing agency, workers brought wage and hour putative class action raising identical claims against the client-company where they had been placed to work.   The Court of Appeal held that:
1.  agency and client-company were in privity for purposes of wage and hour actions, and thus settlement in prior action was res judicata against workers;
2. client-company was agent of agency with respect to payment of workers, and thus was released party under settlement agreement in prior wage and hour action against agency.
The subject underlying release included Civil Code 1542 language and released any PAGA claims.  The issue was the release did not define the employer released broad enough, it only said  temp Company, its parent, subsidiaries, officers, agents, successors, employees.

 

 

 

The California Supreme Court changed the test to determine what is an independent contractor vs. employee to a new “ABC” test.  The 2nd prong, is the tough one for employers.
Dynamex Operations West, Inc. involved a trucking company which changed its policy from classifying drivers as employees to independent contractors.  The Court applied a new “ABC” test that requires an independent contractor to pass ALL three tests:

  1. That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. That the worker performs work that is outside the usual course of the hiring entity’s business.
  3. That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.  


City of Los Angeles: Technically, short term rentals are currently illegal in Los Angeles. ( (Chen vs. Kraft (2016) LA is slow moving but in April 2018 the City Counsel committee approved a measure to allow short term rentals but CAP the number of days that a primary residence can be rented out to 120 days a year. A “qualified host” category may also be included to allow more rental days. Neighbors (or the City) must approve if you want more than 120 days a year of short term rentals.

https://cityclerk.lacity.org/lacityclerkconnect/index.cfm?fa=ccfi.viewrecord&cfnumber=14-1635-S2

I love city reports such as this that cost tens of thousands of dollars (or more) to prepare:

https://planning.lacity.org/ordinances/docs/HomeSharing/StaffRept.pdf

Santa Monica: In 2015 Santa Monica passed a law requiring the “host” to also stay in the rental unit. Air BNB sued Santa Monica and in March 2018 the US Federal District Court denied Air BNB’s request for an injunction against the City indicating the City will win. It seems Air BNB has made over $31 million since 2015 in fees from Santa Monica short term rentals!
West Hollywood: In March 2018 West Hollywood banned renters from hosting short term rentals and the homeowners must be on site for at least 4 hours a day.
Pasadena: In January 2018 Pasadena enacted an ordinance to ALLOW short term rentals for 90 days a year and unlimited rentals so long as the host is on the premises. Air BNB must pay a tax and register with Pasadena.
Hermosa Beach, Redondo Beach: No short term rentals are allowed.

New Labor Code Section 218.17 (AB 1701) makes a general contractor jointly liable for the unpaid wages, fringe benefits, or other benefit payments or contributions of a subcontractor (at any tier).

Labor Code 218.7 provides “down-the-chain protection” to a sub-contractor’s employees if they are  misclassified as as independent contractors or not paid. The bill applies even if the general contractor has paid the sub!!!!  Labor Code 218.7 does not apply to public projects.

To quote the bill’s author, Tony Thurmond:

“This measure incentivizes the use of responsible subcontractors and helps to ensure the economic vitality of the construction industry and its role in the creation of good paying middle class jobs.”

To the GC, this means you are screwed.  To the Property owner/Developer this means your construction costs will increase and small contractors will go out of business.  To Employment lawyers they will file more lawsuits.  To the Labor Board, they will hear more cases, etc.

In denying a motion to quash an unlawful detainer summons, the trial court may not restrict a defendant’s responsive pleading to an answer. Van Butenschoen v. Flaker; Superior Court of California, County of Los Angeles – filed Oct. 16, 2017 Cite as 2017 S.O.S. 5258 Full text click here

This makes complete sense because the statute says that after denial of a motion to quash the defendant my respond as per law, including filing a demurrer.

The statutes  differentiate between calendar, business and court days.  Sometimes a due date is longer or shorter than you may think.  Here are two links to help:

The Los Angeles Superior Court “official” Date Calculator:

http://www.lacourt.org/courtdatecalculator/ui/

And here is one that does business, court and calendar days:

Filing Date and Deadline Calculator