Memorandum of Costs: 5-Day Extension Applies When Party Serves Notice of Entry by Mail

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  California Rules of Court, Rule 3.1700 proscribes the procedure for claiming costs following entry of judgment. Rule 3.1700(a)(1) provides in relevant part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” Continue reading →

Trustee’s Mistake in Opening Bid Amount Justified Refusal to Deliver Deed

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  Nonjudicial trustee foreclosure sales are regulated by statute. The result is that, so long as the statutory scheme is strictly followed, trustee sales are final and cannot be undone. Procedural irregularities in the statutory foreclosure process coupled with an inadequate sales price may, however, allow the trustee to exercise discretionary authority to void the sale if the error is discovered prior to delivery of the deed. Continue reading →

Loans Arranged by Real Estate Brokers Are Exempt From Prohibition on Usury

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  A loan secured by a lien on real property is exempt from the constitutional prohibition on usury if the loan is made or arranged by a licensed real estate broker. Civil Code section 1916.1 explains that a loan is arranged by a person licensed as a real estate broker when the broker acts for compensation or with the expectation of compensation for soliciting, negotiating, or arranging the loan for another.

  In Brock v. California Capital Loans the court held that even when the lender on such a loan is a corporation that is wholly owned by the arranging broker, the broker can still be found to have arranged the loan “for another” for purposes of section 1916.1. In such a situation, the broker may also be found to have arranged the loan “in expectation of compensation” even if the only compensation the broker will receive is the profit his wholly owned corporation reaps from the interest on the loan.

iStock_000016600371XSmall  I consult with clients and accept cases involving the prosecution and defense of usury claims. For other types of cases I accept, please consult the My Practice page. If you are seeking a consult or representation, please give me a call at 818.971.9409 – Michael Daymude

Cost of Deposition Transcript Copies Unreasonable? File Motion in Trial Court

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  Clients are frequently surprised at the high cost of certified copies of deposition transcripts. When parties and potential witnesses are many, the costs can be substantial. There is a remedy when the rate is deemed unreasonable, but usually not a cost effective one.

  Pursuant to Code of Civil Procedure section 2025.510, a non-noticing party may challenge the reasonableness of the rate for copies of deposition transcripts and exhibits by a motion in the court where the action is pending. That court has authority to set the rate under its inherent authority to control the conduct of ministerial officers in pending actions in order to protect the administration of justice.

  A subsequent action to enforce the statutory right to copies at a reasonable rate is generally not permitted and, absent extraordinary circumstances, the court in the action in which the dispute arises is the only court to decide the issue. See, Las Canoas v. Kramer.

 

Contingency Fee Recovery After Withdrawal or Discharge

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  The rules on fee recovery by an attorney after withdrawal or discharge in a contingency case depend on two things: 1) who initiated the separation; and 2) why. When a client discharges an attorney the courts have adopted a bright line rule – the attorney is entitled to a reasonable fee against any recovery. In this circumstance whether the attorney was discharge for cause, or not, makes no difference; the attorney is entitled to recover the reasonable value of his services rendered to the time of discharge.

  The rules are more complex when an attorney withdraws without having been discharged by the client. In this circumstance, the attorney’s right to fees will depend on whether the attorney had “justifiable cause so as to permit a recovery of compensation.” If the attorney had just cause, the attorney may be entitled to reasonable fees to the date of discharge; otherwise, the attorney’s claim for fees will fail because an attorney who withdraws without justifiable cause may not recover any attorney’s fees under a contingency fee agreement. [This post concerns attorney's fees only, not an attorney’s right to recover costs pursuant to a valid attorney lien.] Continue reading →

Time of Execution Determines Limitation on Donative Transfer

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  California Probate Code section 21350(a)(2) provides that no provision in any instrument shall be valid to make a donative transfer to: 1) The person who drafted the instrument; 2) A person who is related by blood or marriage to the person who drafted the instrument. Section 21351(a), however, exempts from disqualification transfers to persons who are related to the transferor by blood or marriage. [These provisions relate to all donative transfers, whether they be by will, trust, or otherwise. The full text of these and related provisions which limit transfers to drafters and others is here.]

  In Estate of Oligario Lira the court was confronted with the issue of whether transfers to stepchildren are barred when they are related to the drafter of the will and trust — when the transfers would occur only after the transferor’s death and at a time when the transferor was no longer married to their mother and therefore not related by marriage to them. Continue reading →

Deed of Trust Exception to Merger of Title Doctrine?

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  Under the doctrine of merger of title an owner of an estate in land cannot also hold an easement in the same land. This doctrine is codified in two statutes: 1) Civil Code section 805 which states: “A servitude thereon cannot be held by the owner of the servient tenement;” and 2) Civil Code section 811 which provides that a servitude is extinguished by the vesting of the right of the servitude and the right to the servient tenement in the same person.

  The rationale for these statutes is to avoid nonsensical easements where they are unnecessary because the owner owns the estate. However, despite the statutory language, the doctrine of merger is not applicable in every case. It is only applied to prevent injustice where it serves the interests of the person holding the two estates in absence of a contrary intent. It is not applied where it would result in injustice, injury, or prejudice to a third person. An agreement that there will not be a merger is generally enforced. Continue reading →

The Disentitlement Doctrine: What’s That?

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  The “disentitlement doctrine” allows an appellate court to dismiss an appeal by a party who has refused to comply with a lower court order. When a party stands in contempt of a lower court order there is no right to have an appellate court hear his demands on appeal and the appeal may be dismissed. Continue reading →

Under HAMP Successful Completion of Temporary Modification Requires Permanent Modification

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  Under the federal Home Affordable Mortgage Program (HAMP) when a borrower enters into a trial period plan (TPP), a form of temporary loan payment reduction under HAMP, the borrower and lender enter into a Trial Period Agreement — a written contract enforceable under state law. If a borrower complies with the terms of a TPP, and the borrower’s representations remain true and correct, the loan servicer must offer the borrower a permanent loan modification. If the lender fails to offer a permanent modification the borrower may sue the lender or loan servicer for breach of contract as HAMP does not preempt or otherwise displace state law causes of action. West v. JPMorgan Chase Bank. Continue reading →

Papering the Judge: The Rules

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iStock_000005901807XSmall_edited-1  Preemptory challenges of a trial judge are governed by Code of Civil Procedure section 170.6. The section permits a party to an action to summarily disqualify a judge based on a sworn statement of the party’s belief that the judge is prejudiced against that party or the party’s attorney.

  Provided the statement is timely and in proper form, the judge has no discretion and must accept the challenge. The right to disqualify a judge under section 170.6 is automatic in the sense that a good faith belief in prejudice is sufficient – no showing of actual prejudice is required. In common parlance the use of an affidavit pursuant to section 170.6 is known as “papering the judge.” Continue reading →

Non-Aggrieved Party Lacks Standing to Appeal

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  The right to appeal is purely statutory. Code of Civil Procedure section 902 defines who may appeal from a judgment. The statute provides that “any party aggrieved” may appeal from an adverse judgment. The test is twofold. One must be both: 1) a party of record to the action; and 2) aggrieved — to have standing to appeal. Thus, notwithstanding an appealable judgment or order, an appeal may be taken only by a party who has standing to appeal. Standing is a jurisdictional requirement and cannot be waived.

  One is considered aggrieved whose rights or interests are injuriously affected by the order or judgment in an immediate and substantial way, and not as a nominal or remote consequence of the decision. [See, In re K.C.] Conversely, a party who is not aggrieved by an order or judgment has no standing to attack it on appeal. Injurious effect on another party is insufficient to give rise to appellate standing. Appellate courts provide relief for appellants who have been wronged by trial court error – not for appellants that have suffered no wrong but instead seek to advance the interests of others who have not complained. Continue reading →

Revival Validates Earlier Timely Notice of Appeal Filed When Corporate Powers Suspended

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  The California Supreme Court affirms, in Bourhis v. Lord,  that a corporation whose powers have been suspended for failure to pay taxes may file a notice of appeal and proceed with the appeal provided those powers have been revived — even if the revival occurs after the time to appeal has expired.

  Filing a timely notice of appeal is a jurisdictional requirement. The court reasoned, relying on two prior opinions of the Courts of Appeal, that what is jurisdictionally required is that the notice of appeal be timely — not that it be filed by an active corporation. If notice of appeal is timely, even if invalid when filed, a corporation’s later reinstatement through revival makes the earlier, invalid but timely, notice of appeal valid.

  I consult with clients and accept cases involving appeals and appellate procedural issues of jurisdiction such as the notice of appeal. For other types of cases I accept, please consult the My Practice page. If you are seeking a legal consult or representation, please give me a call at 818.971.9409. – Michael Daymude

Pendergrass is Dead. Long Live Riverisland!

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  The Pendergrass rule is dead. Parol evidence, even that at odds with the written terms of a contract, may be used to support claims of promissory fraud. However, where consumers have not read their contracts before signing them, they will have to present facts that tend to prove their failure to read the contracts was not negligent. Continue reading →

Calculation of Interest on California Judgment

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  If you are fortunate to have obtained a judgment from a California court, you may wonder how interest on the principal amount of the judgment and interest on prejudgment and postjudgment costs are calculated. Interest on the principal amount of judgment is calculated at the rate of 10 percent per annum. It is calculated on the principal amount of the judgment from the date of entry. Continue reading →

Virtual Classroom: Free Online Copyright Course at Harvard Law

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  Doug Lloyd reports from his blog that Harvard Law Professor Terry Fisher is offering his course on Copyright through the edX platform this spring 2013 term. The course is FREE.

Austin Hall, Harvard Law School  “Enrollment is now closed for those individuals seeking to get a certificate of completion (enrollment was capped at 500), but all of the course materials will still be made available online.” I have reviewed the course materials and viewed the introductory video and, as one would expect of Harvard Law, the course is first rate.

  If you ever wanted to attend Harvard Law School now is your chance to do it, virtually. Doug’s post titled “The Digital Classroom” is here. Thanks, Doug, for the pointer.

Supremes Declare Continuous Accrual Rule Applies to UCL

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  The statute of limitations period, the period in which a plaintiff must bring suit or be barred, runs from the moment a claim accrues. Traditionally a cause of action accrues when it is complete with all of its elements: wrongdoing, harm, and causation.

  This is known as the last element accrual rule. Ordinarily the statute of limitations runs from the occurrence of the last element essential to the cause of action. Over time there has developed a handful of equitable exceptions and modifications to this rule. One such exception is the continuous accrual rule. Continue reading →

Suit Against Estate On Contract to Make Will Timely Pursuant to 1 Year Statute of Limitations

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  In a case of first impression the court in Allen v. Stoddard was confronted with the circumstance where plaintiff’s suit — based upon an alleged contract to make a will against the executor of an estate — was filed 91 days after rejection by the estate of his creditor’s claim but within a year of the decedent’s death.

  Probate Code sections 9350 to 9354 govern claims against decedents’ estates and section 9353 unambiguously states that regardless of any other statute of limitations, any claimant against an estate has only 90 days after notice of rejection of the claim by the estate to file suit. If section 9353 governs plaintiff’s claim is time-barred.

  However, Code of Civil Procedure section 366.3 specifically gives persons who have claims against estates based on promises to make a distribution after death (such as contracts to make a will) a full year from the date of the decedent’s death to file suit. Was plaintiff’s suit, therefore, timely? The court held that it was. Continue reading →