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
Demurrers must be filed within 30 days of service of Complaint (extensions do not extend time to demurrer) CCP § 430.40
Demurrers must be heard within 35 days after filing (Rule of Court 3.1320(d))
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
New Demurrer Rules, Meet and Confer & 30 Days Extension (CCP §430.41)
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
Tenant Re-entry After Eviction Penalties (Penal Code §§419; 602.5; CCP §1210)
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 …
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Illegal Evictions and Other Landlord No No’s (Criminal and Civil Liability) (CCP §789.3)
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…
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4 Year Statute of Limitations to Sue Home Inspector (Bus. & Prof. Code 7199)
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
2 Year Statute of Limitations Against a Real Estate Broker is 2 years from close of escrow! (CC §2079.4)
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.
Civil
A Verbal Trust is Valid Nor must Trust be Notarized to be Valid!
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
Judgment Debtor Required to Produce Tax Returns at ORAP (Li v. Yan (2016) 247 Cal. App. 4th 56)
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
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