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!

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

 

The general “extension rule” of CCP 12a which does apply to 3 Day Notices, does NOT apply to exercise of lease options.  In a commercial lease,  the civil procedure rule extending period to perform any lawfully required act past holidays, including Saturday, to next non-holiday did not apply to lease between commercial tenants and landlords, so the tenants’ attempt to exercise lease option was untimely, although last day to exercise option fell on Saturday and tenants attempted to exercise option the following Monday. Continue Reading Code of Civil Procedure § 12a does NOT extend time to exercise a lease option (Gans v. Smull (2003) 111 Cal.App.4th 985

In an unpublished case, Durack v. Wang, B276086,  on September 27, 2017 the Court stated that Civil Code 1717 does NOT apply in an action based upon CC&R’s so attorney’s fees can be awarded against a party who voluntarily dismissed an action!  In this case Plaintiffs  brought an action against their condominium homeowners association and several individual defendants and settled as to all defendants but one, then voluntarily dismissed their action against the hold-out defendant.   Continue Reading Attorney’s fees Awarded on a Voluntarily Dismissed Case based on CC&R’s — Civil Code 5975(c)

 

The Courts may exclude  evidence as a sanction as part of its  inherent power to exclude evidence to cure violation of invasion of privacy and harassment (see Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 107-108)  This is based upon the concept that litigation abuse shall not be tolerated.  This case was about unethical ex parte communications with a current employee of a represented party (Rule 2-100). Continue Reading Evidence Exclusion as punishment for invasion of privacy, ethical violations or pretty much anything

foreclosure_evictionA buyer purchasing after a foreclosure sale, can serve a notice to quit to a tenant/former owner before recording the deed, e.g. before title is “perfected”.  Citing Code of Civil Procedure § 1161a and U.S. Financial, L.P. v. McLitus (2016) 6 Cal.App.5th Supp. 1, the Court of Appeal affirmed, stating: “Here we reject the occupant’s claim that the notice to quit is premature, and hold that Code of Civil Procedure section 1161a does not require that title be recorded before the notice to quit is served.” (Dr. Leevil, LLC v. Westlake Health Care Center (Cal. App. 2nd Dist., Div. 6,  2017) 9 Cal.App.5th 450.) http://www.courts.ca.gov/opinions/documents/B266931.DOC