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
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
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
Continue Reading Judgment Debtor Required to Produce Tax Returns at ORAP (Li v. Yan (2016) 247 Cal. App. 4th 56)
A Trustee of a Revocable Trust Should Sue in his own Name (A trust is not a legal entity)
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
Unlawful Detainer Motions to Compel Discovery only require 5 days notice (CCP §1170.8) and oppositions may be verbal at the hearing (Rule of Court 3.1347)
CCP §1170.8 states that motions to compel may be filed with only 5 day (plus service) notice. Also oppositions and replies may be made verbally at the time of the hearing. Section 1170.8 is phrased to be independent of any “motion cut off”. Most UD Judges also treat motions as not being subject to a motion cut off date.
Continue Reading Unlawful Detainer Motions to Compel Discovery only require 5 days notice (CCP §1170.8) and oppositions may be verbal at the hearing (Rule of Court 3.1347)
Combined Discovery Motion to Compel Initial Response (Saves money and paper!)
Usually discovery is served in groups, e.g. Form interrogatories, Request for Admissions, Request for Documents. If no response is provided I file a combined motion to compel these initial discovery responses. I did this after several judges told me why not combine them and save filing fees and paper. Once a judge told me not to do a combined motion only as a warning, not a denial of the motion. Nothing in the Rules of Court that I found say you cannot combine discovery motions. Here is my statutory analysis of this issue:
Continue Reading Combined Discovery Motion to Compel Initial Response (Saves money and paper!)