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
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
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
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.
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)
A common “mistake” is a party names the “Smith Family Trust” or if a probate, “Estate of Smith” as a party. An estate is not a legal entity, it has neither the capacity nor the standing to sue and title to estate assets are held by the executor or administrator, who is the real party
