Michael Simkin

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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!

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.  
  4. Note: For some business, such as realtors, under Business & Professions Code § 10032, the law  specifically declared that real estate licensed salespersons and brokers may choose an independent contractor relationship even though they are subject to real estate laws requiring broker supervision and salespersons activity to be conducted under only one broker’s license.


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.