The current law is only staying evictions or unlawful detainer actions for non-payment of rent.  Please read this memo: Letter re COVID-19 – UD

Civil trials will probably be continued until after June 1st.  The backlog will force most civil trials to be continued for months after that.  Most civil court hearings will be continued as well.  Issuance of new summons’ and Default judgments are stayed unless the public health is at risk.  Trials are also to be delayed 60 days unless the pubic health is at risk.  Read more here: April 6, 2020 Court Emergency Order on Summons, trials, etc.

If a tenants does not pay the rent,, the money is still due.  Tenants must prove an inability to pay the rent caused by the Covid-19 harm to business effects and the tenant will have one year to pay it back.  There are some technical legal issues, but landlords and tenants are encouraged to make a re-payment plan, however, there is a “legal secret” behind that to the detriment of landlords.  Nevertheless, I expect a flood of evictions from these issues.

While most things are negotiable, there are a few items which by law are allocated to the seller or buyer.  Even if allocated, so long as the legal obligation to perform is done, the parties can negotiate who pays for what.  See this memo as to costs applicable in Los Angeles including retrofit.  See this pdf: Seller pays for Retrofit and LA compliance certificate

As to allocation of title, escrow and some other closing costs, see this memo from a title company: Guide To California Closing Costs

Trial courts have great discretion as to determining what is a reasonable attorney fee.  Some judges look at what is a “market rate” and for high end clients they will pay $1,200 per hour.  In an unpublished opinion, Los Angeles Superior Court Judge William Fahey awarded attorney’s fees in favor of Latham Watkins, Gibson Dunn and Munger Tolles in excess of $1,200 per hour.

Judge Fahey in a case involving an professional and former Olympic beach volleyball player, Alan Jay Weil of Kendall Brill & Kelly, was awarded $850 which was his discounted rate in 2018 , discounted from his standard rate of $950; $360-$395 for the associate, discounted from $490; and $290 for the paralegals, discounted from $300.

https://www.courts.ca.gov/opinions/nonpub/B289681.PDF

The plaintiffs’ attorneys in a class action were denied attorney’s fees because some of the attorneys failed to disclose their lack of professional liability insurance to the client at the time the client retained the attorney.  The Court of Appeal concluded the agreement was unenforceable because of failure to comply with former rule 3-410 and reversed the fee award with directions to redetermine the division of fees. (Hance v. Super Store Industries (Cal. App. 5th Dist., Jan. 23, 2020) 2020 WL 373070.)  The new rule after 2018 is Rule 1.4.2.  Read the case: https://www.courts.ca.gov/opinions/documents/F075852.PDF

 

In Berkeley Cement, Inc. v. Regents of the Univ. of California (2019) 30 Cal.App.5th 1153, the court confirmed that a trial court may award mediation fees as costs, whether the mediation is court ordered or privately agreed to. In affirming the award of mediation fees as costs, Berkeley Cement noted that although mediation costs are not expressly allowable in the Code of Civil Procedure, such costs “fall within the category of costs that may be awarded in the trial court’s discretion.” (Id. at p. 1140.)

Waiver of the right to a jury trial cannot be imposed as a sanction.  In a Los Angeles unlawful detainer action, the pro per tenant (who was also pro per on appeal) appeared on the trial date without complying with a Los Angeles County Superior Court Civil Division unlawful detainer standing order. The court found “defendant had waived jury by not preparing for a jury trial,” and following a court trial, judgment was entered against her and possession of the premises was awarded to plaintiff. Because the court exceeded its authority in denying defendant’s right to be tried by a jury, the judgment was reversed.

The tenant/defendant had requested the Court to continue the matter to prepare jury instructions, etc.  But the Court found the defendant not credible legal reason why she was not prepared for trial.

Code of Civil Procedure section 631, subdivision (f), sets forth the exclusive grounds for a jury waiver, and failure to prepare for trial is not listed. Showing up for trial unprepared may subject a party to monetary sanctions, but it does not constitute a waiver of the right to jury, and a court has no power under these circumstances to refuse to conduct a jury trial.

The Appellate Court pointed out that the Standing Order states, “Failure to comply with any provision of this Standing Order without substantial justification may result in monetary sanctions.” (See Code Civ. Proc., § 575.2 [authorizing imposition of sanctions for failure to comply with trial court rules when the rules specify sanctions may be imposed]; see also Code Civ. Proc., § 177.5 [“A judicial officer shall have the power to impose reasonable money sanctions … for any violation of a lawful court order by a person, done without good cause or substantial justification”].) Notably, the Standing Order does not provide failing to prepare for trial per its requirements can result in a jury waiver.3
“But, more to the point, even if the Standing Order had provided that failing to comply with its provisions could result in a jury waiver, it would be unenforceable. “The fundamental flaw here is that the court imposed a remedy for the violation of its order that was not authorized by law.”

Guo Zhang Chen v. Lin (Cal. App. Dep’t Super. Ct., Nov. 14, 2019, No. BV 033055) 2019 WL 6341283

 

I had a case where the issue was if the work had been previously published invalidating the US copyright.  This case will be very useful for showing no publication occurred if the work was only posted on a foreign website.  In Moberg v 33T LLC (D Del 2009) 666 F Supp 2d 415, the district court held that a work posted on a foreign website was not “published” in the United States for purposes of 17 USC §411 and therefore did not trigger the registration requirement.

While the law still allows the U.S. CBP (Customs, Border Patrol) to conduct a limited search of a cell phone or laptop at the border without any suspicion whatsoever based upon  the border search exception which is designed for customs inspections, the court re-visited United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) and made it clear this exception is not for general law enforcement.  It is now clear they cannot force you to unlock your cell phone or laptop so they can look around, or take it and do a forensic search without respecting your 4th Amendment protections, e.g they need an objective suspicion there is evidence of a crime inside your phone or that you committed a crime (in the US) with some evidence of that crime inside your phone or laptop.  I think that means they can only force you to give them your phone, but not force you to unlock it.
The 9th Circuit (Calif.) Court made it clear that cell phones cannot be searched at the border under the border exception unless the cell phone itself is suspected to contain contraband, as opposed to it may lead to discovery of evidence of or to help convict of a crime.
This was a drug smuggling case, but the underlying law is from a child porn case.
Unfortunately the larger problem remains, the border officers can still threaten and make people uncomfortable.  But If asked for my phone, I’d ask what reasonable suspicion do they have that contraband is inside my phone and tell them read the Cano case!

It pisses me off when companies want charge 3% or more to pay them by credit card.  If you don’t want to take credit cards fine, but don’t profit from it!  Elavon through Costco only charges 1.99% + 25 ¢ (for phone transactions) so don’t lie and try to make profit from a credit card transaction.

California and about 10 other states were trying to prohibit these surcharges https://oag.ca.gov/consumers/general/credit-card-surcharges

But now, starting with the US Supreme Court, surcharges will probably be allowed.  (See Expressions Hair Design https://www.supremecourt.gov/opinions/16pdf/15-1391_g31i.pdf

Technically, Civil Code Section 1748.1(a) prohibits retailers from imposing a surcharge on customers who pay with a credit card, but allows them to offer discounts for cash or check.

There is a work around for merchants, under the first amendment and how this surcharge is advertised.  See 9th Circuit Opinion:  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/03/15-15873.pdf

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