Residential leases, in any facility where a person “resides”, cannot contain a mandatory arbitration clause.  The plain language of Civil Code Section 1953 states that waivers of litigation rights in a lease or rental agreement are void as public policy, and Civil Code section 1940 extends these rights to tenants, lessees, boarders, or others of a “dwelling unit.”  This has been extended to senior care facilities because they also “reside” there.  See Harris v. University Village Thousand Oaks CCRC, LLC (2020) 49 Cal.App.5th 847

Another case on the same arbitration issue, concerning a tort claim for bed bugs, also held tenant’s cannot be forced to arbitrate.  See Williams v. 3620 W. 102nd Street, Inc. (2020) 53 Cal.App.5th 1087

Also, don’t forget, possibly the federal arbitration act could apply, if it involves interstate commerce, which is the prerequisite for the federal Act’s application. (Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 657

Title VI of the Civil Rights Act of 1964 was clearly extended to protect Jews as “a nationality”.  However, while thousands of year ago that may be a true statement, perhaps as early as King Solomon’s time, Jews have lived in other nations.  Today, and for hundres, if not over two thousand years, Jews do not consider themselves a nationality, a religion and perhaps a culture.  The policy is that “Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.”  It seems the impetus was this was to take combat anti-Israel sentiments and divestment movements on college campuses by requiring colleges and universities to treat those movements as discriminatory or risk losing their funding.

Does this Federal Court’s ruling mean that Jews are “not white”?  Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987)

The U.S. Supreme Court held in a case where a synagogue was painted with anti-Semitic slogans  and symbols, a lawsuit was filed in Federal District Court, alleging that the desecration violated 42 U.S.C. § 1982. The trial court dismissed petitioners’ claims, and the Court of Appeals affirmed, holding that discrimination against Jews is not racial discrimination under § 1982.  This law was enacted as part of the 1866 Civil Rights Act.  42 USC §1982 provides: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

However, the U.S. Supreme Court reversed.  It held that a charge of racial discrimination within the meaning of § 1982 cannot be made out by alleging only that the defendants were motivated by racial animus. It is also necessary to allege that that animus was directed toward the kind of group that Congress intended to protect when it passed the statute. P. 481 U. S. 617.  The Court explained that Jews can state a § 1982 claim of racial discrimination, since they were among the peoples considered to be distinct races, and hence within the protection of the statute at the time it was passed. It doe snot matter that the defendants are also part of what today is considered the Caucasian race citing Saint Francis College v. Al-Khazraji, ante, p. 481 U. S. 604. Pp. 481 U. S. 617-618.

It is also worth reading a law review article on this case such as that by Racial Discrimination under 42 U.S.C. 1982_ Proof or Perceptions by Christopher E. Celichowski




The home owner should make sure the contract contains an “option to terminate—time of the essence” clause. In Call v. Alcan Pac. Co., 251 Cal. App. 2d 442  (3d Dist. 1967) the court considered such a clause. This type of clause provides that if the contractor does not prosecute the work diligently, the owner may give written notice, and that if the contractor does not then resume work in a diligent manner, the owner may take over the job. The owner, with such a contract clause, has what amounts to an option to terminate the contract if the contractor delays the work.

Neither the landlord or tenant can withdraw a 30 day notice to vacate.  “When a valid notice to quit is given by landlord or tenant the party to whom it is given is entitled to count upon it and it cannot be withdrawn without the consent of both parties.” (See Devonshire v. Langstaff (1935) 10 Cal.App.2d 369, 373)

Logically, the 4 year statute of limitations of Civil Code §387(1) applies to breach of a promissory note secured by a deed of trust.  But foreclosure on the deed of trust is not limited to the “normal” statute of limitations.  In Trenk v. Soheili, (Dec. 2020) B295434, (Los Angeles County Super. Ct. No. PC058343), the court analyzed the 10/60 year rule of Civil Code ╘880.020.  In 2001 a lawyer was sued for malpractice, he settled in 2003 agreeing to pay $100,000 secured by a deed of trust on his community property house.  The promissory note gave him three years to pay.  He paid $25,000 then stopped payments.  He owed $75,000.   In 2018 the plaintiff/creditor began foreclosure proceedings.  The debtor field an action to quiet title in the residence citing the statute of limitations and the Marketable Record Title Act (Civ. Code, § 880.020 et seq.) barred enforcement of the trust deed.  The trial court agreed.  The judgment was affirmed on appeal, but for different reasons.

The appellate court held that a power of sale in a trust deed is enforceable even if the statute of limitations has run on the underlying obligation if the trust deed does not state the last date for payment under the promissory note.  See Civil Code section 882.020,
subdivision (a)(2).  The key is if a date is set forth in the deed of trust for the last payment/due date.  The creditor may have 10 years, or would have 60 years to exercise the power of sale in the trust deed if no due date is stated.  It is also possible under Civil Code Section 882.020, subdivision (a)(3) to extend the applicable time period by 10 years by recording a “notice of intent to preserve the security interest.”

Read Civil Code section 882.020, subdivision (a)(1) provides that a power of sale may not be used to enforce a lien after 10 years from the last date fixed for payment, if that date is “ascertainable from the recorded evidence of indebtedness.”  Remember, Don’t confuse a judicial foreclosure (which has a statute of limitations) with a non-judicial which does not.

It is also good that Mr. Trenk, was married.  The Court of Appeal found that the power of sale is not enforceable for another reason. The Residence presumptively is community property. The wife did not execute the trust deed, she has the power to void it.  Fam. Code, § 1102, subd. (a)

Editor’s note: I have met Mr. Trenk, he’s a very nice guy, but he really should have paid his debt.


It is confusing which eviction notice to use and when the money is due, or not due, under the current Covid-19 eviction rules.  This chart may help point you in the right direction.  But use a lawyer, these are only basic instructions.  Click here to download this chart: Which Covid Forms to serve

The mail box rule survives.  Many leases, including the AIR leases, provide that notices are “deemed given” if they are “addressed as required herein and mailed with postage prepaid.” This case involved a certified mail letter, which does not require handing it to the post man, just “mailing it”.  The result is all a landlord or tenant needs to prove is that they mailed the letter, NOT actual receipt.  See Jenkins v. Tuneup Masters (1987) 190 Cal.App.3d 1

In the 9th Circuit case of Garvin vs. Cook, 922 F.3d 1031 (9th Cir. 2019)  the BAP affirmed the bankruptcy court’s order confirming a chapter 11 plan, over the objection of the United States Trustee, who objected because one of the chapter 11 debtors leased property to a tenant who grew marijuana.   The objection was that the chapter 11 debtor planned to use income from that lease to fund the plan.  The United States Trustee argued the lease violated federal drug law – namely, the Controlled Substances Act – therefore the plan was unconfirmable under Section 1129(a)(3) because it was proposed by means forbidden by law.

The Nineth Circuit overruled the objection and confirmed the chapter 11 plan.  It concluded that Section 1129(a)(3) directs bankruptcy courts to police the means of a reorganization plan’s proposal, not its substantive provisions.  The panel specifically found that the payment plan was not proposed was not forbidden by law, despite the alleged violations of federal law by the third party tenant.  In other words, it found the Trustee did not show that the plan “will result in bankruptcy proceedings being used to facilitate legal violations.”

  1. Mediate cases early, e.g. within the first few months of litigation!   It behooves all parties to settle the case BEFORE the attorney’s and clients ascertain the facts or law supporting or detracting from their case.  This sounds heretical, but most lawyers are lazy and do not begin to research their case until before a substantive hearing, mediation or trial.  Most lawyers only learn the facts of a case during a deposition, or mediation, when they are forced to sit and listen to their client (or the opposing party) speak.
  2. You attract more flies with honey than vinegar.  Be nice to the party paying the money. Make the lawyer or insurance adjuster have sympathy for your client.
  3. Ask the opposing side to help you settle the case.  Ask your opposition what does she or he think can be done to resolve the matter.
  4. Politely using the Socratic method (e.g. law school), ask the opposing side to help you understand the law/facts why his client does not want to pay what you proposed or why you should settle.  Maybe add that you want to learn the truth from the opposing lawyer, he’ll probably open up and spill the beans!
  5. If you are defense counsel for an insurance company, explain to the plaintiff’s attorney that there is a reservation of rights with serious coverage issues and if this case goes to trial and the defendant loses, there may not be coverage or an easy payment from the insurer .
  6. Encourage your client to have realistic expectations.  Usually sending a bill, or a written estimate for future attorney’s fees and costs to your client does the trick.
  7. Explain to an insured defendant that the policy has eroding limit provisions, also known as wasting policy limits, defense-within-limits, cannibalizing or self-liquidating limits, which will reduce the insurance coverage limits available to an insured as certain costs and expenses are incurred during the defense of an insured or payment of a judgment.
    1. If representing an insured defendant pursuant to a reservation of rights, explain the insurer may file a declaratory relief action to obtain a court order to withdraw from paying for the defense and may also obtain the right to recover its costs of defense due to lack of coverage.
  8. Blame the insurance adjuster or a third party for your client’s refusal to settle.  Explain to Plaintiff’s counsel that there is barely coverage so the adjuster is limited in what he can authorize to pay to settle.   Sometimes blaming a co-defendant or spouse who is interfering with settlement by encouraging litigation works.
  9. Get a bankruptcy attorney to send a pre-filing or credit counseling letter citing the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) so the plaintiff knows the defendant is serious about filing for bankruptcy relief.
  10. Use depositions where all parties are present to settle the case. I settle 75% of my cases this way.  Once my client brought a Ouija board to a deposition and afterwards the parties settled after  communicating with their deceased loved one who knew something about the dispute. This is a 100% true event.  (I have also had a dead client call me, but that is another story.)