The Fifth Appellate District opines in Rodriguez v. Brill that relief from a judgment of dismissal under the mandatory provisions of Code of Civil Procedure section 473(b), for inexcusable failures of plaintiff’s attorney, is available following the granting of a terminating sanction. Continue reading
Determining when the statute of limitations expires is not always easy. This is particularly true in medical malpractice cases which are governed by two Code of Civil Procedure sections: 340.5 and 364. Additionally, other statutes may act to toll the applicable statute of limitations. One such statute is Insurance Code section 11583. It provides that the applicable statute of limitations is tolled when advance or partial payment is made to an injured and unrepresented person without notifying him of the applicable limitations period. Continue reading
The Court of Appeals affirms, in Huntington Continental Town House Ass. v. Miner, that a homeowners’ association is required by the Davis-Stirling Common Interest Development Act to accept partial payments from an owner of a separate interest when the owner is delinquent in paying assessments. Continue reading
Code of Civil Procedure sections 12-12c tell you how to count days. The first step is to determine if the days are calendar or court days–a distinction with a difference. The next step is to count either forward, or backward, the correct number of days. The third step is to add days, as required, due to the specific manner of service. The following rules apply: Continue reading
Must a party, seeking an award of contractual attorney fees pursuant to Civil Code section 1717, also file a timely memorandum of costs? No, writes the court in Kaufman v. Diskeeper Corporaton. The only requirement is that the party file a timely noticed motion. That motion must be served and filed within the time for filing a notice of appeal pursuant to California Rules of Court, Rule 3.1702(b)(1).
The rule is different when attorney fees are fixed by formula without the necessity of court determination. Pursuant to subdivision (e) of Rule 3.1702: “If a party is entitled to statutory or contractual attorney’s fees that are fixed without the necessity of a court determination, the fees must be claimed in the memorandum of costs.”
The courthouse doors are now routinely slammed shut against homeowners who allege wrongful foreclosure based upon alleged defects in securitization trusts, despite the holding in Glaski v. Bank of America. Continue reading
The statutes governing expert witness discovery are part of the Civil Discovery Act at Code of Civil Procedure section 2016.010 et seq. The purposes of the discovery statutes are to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.
Under the Act, so that the parties can prepare their cases for trial, a party may demand an exchange of expert witnesses. The exchange of expert witness information is governed by Code of Civil Procedure sections 2034.210-2034.310. An expert witness exchange is triggered by a timely written demand made by any party after the initial trial date is set pursuant to section 2034.220. Continue reading
California courts have consistently held that agents and employees of insurance companies, including insurance adjusters, do not owe a legal duty to the insured. Instead, liability for their actions lies with the insurer, so long as the agency was disclosed to the insured and the conduct complained of took place within the course and scope of such agency. Claims of negligence, therefore, fail against adjusters acting within the course and scope of their employment. But, what about the tort of negligent misrepresentation? Continue reading
The California Supreme Court reverses the Court of Appeal and holds that when community funds are used to purchase life insurance, the life insurance policy is community property—irrespective of who is named owner of the policy—unless the statutory requirements for transmutation are met. The case is Valli v. Valli. Continue reading
In a case of first impression the Court of Appeals, in Drescher v. Gross, held that a marital settlement agreement, incorporated into a judgment of dissolution of marriage, wherein the parties agreed to equally pay for the future college expenses of their then three minor children, was enforceable and may be non-modifiable “by the parents’ express and specific agreement to restrict the court’s jurisdiction” to modify support. Continue reading