Choppy Waters for California Almond Producers

The University of California at Davis publishes an excellent agriculture newsletter. In the Sept/Oct 2022 issue, Prof. Colin A. Carter and Sandro Steinbach offer the following insights into the California almond industry (big business here in the Central Valley):

“California almond tree acreage has expanded by roughly three-fold since 2000. As a result, the industry relies more on foreign buyers to purchase the growing supply of almonds.

“Combined with the acreage growth, recent international trade disputes and supply chain problems have resulted in an oversupply of California almonds, with end-of-year inventories close to an unusually high 30% of the harvest …

“Table 1 summarizes California’s almond supply and demand from the 2016/17 marketing year – from August through July – to the 2021/22 marketing year.

California almonds 2016-2022

“Almonds are the most valuable crop produced in California, and over 70% of the harvest is exported internationally. The annual value of almond exports is over $4.5 billion, far higher than any other agricultural product shipped out of California.

“Grower prices for almonds are down over 25% since 2019 and are now below production costs for those farmers who are paying high prices for irrigation water. Warehouses are full, and temporary storage is being relied upon at higher storage costs …

“The supply and demand situation has eased somewhat because of the drought, and low crop prices curtailed water use and lowered the 2022 harvest volume by about 6% from the previous year. However, almond inventories continued to build up.”

A sobering analysis, indeed.

Citation: Carter, Colin A. and Sandro Steinbach. 2022. “California Almond Industry Harmed by International Trade Issues.” ARE Update 26(1): 1–4. University of California Giannini Foundation of Agricultural Economics.

Authors’ Bios
Colin A. Carter is a Distinguished Professor in the Department of Agricultural and Resource Economics at UC Davis.

Sandro Steinbach is an associate professor in the Department of Agribusiness and Applied Economics and the Director of the Center for Agricultural Policy and Trade Studies at North Dakota State University.

5-1/2 Month Delay to Get Standard Hearing Date in Fresno Probate Court

We filed a petition to distribute an estate in the Fresno Probate court on September 26, 2022. It’s a simple case. There is only one asset, being a parcel of land. There is only one heir. There is no accounting, because the sole heir waived the accounting.

Traffic jam

The probate clerk set the matter for hearing on March 13, 2023. That’s a 5-1/2 month wait to close the estate. We don’t know what’s going on behind the scenes, but from the outside, things are moving very, very slowly in the probate division.

The Death Tax Bogeyman – More Imaginary than Real

The federal estate and gift tax has been law since World War I. In its simplest terms, it provides for the taxation of gifts made at death.

A certain group of influential persons don’t like this tax, and have continually attacked it, using the pejorative label “death tax.”

Like all taxes, the estate and gift tax has an exemption. Which is to say, if the gift is less than a certain amount, then no tax applies. As of 2021, the exemption amount is $11,700,000 per donor, net of encumbrances.

As a result, very, very few persons are subject to the estate and gift tax. According to a recent publication, “In 2018, only approximately 4,000 decedents died with a taxable estate and, of those taxable estates, approximately 1,900 owed any estate tax.”

Which fact is conveniently omitted by the persons who attack the estate and gift tax – it only applies to extremely wealthy individuals. CDC statistics state “A total of 2,839,205 resident deaths were registered in the United States in 2018.”

Which means that only 1,900 of those persons left an estate that incurred the estate and gift tax – that’s 0.0669% of all 2018 deaths.

Very, very few persons are subject to the estate and gift tax.

Breslin v. Breslin – Court Breaks the First Commandment of Mediation

The first principle of mediation is that parties work to find a resolution on terms that are mutually acceptable. In mediation, nobody orders the parties what to do: the parties control the outcome. This is referred to as the principle of self-determination, and it is embodied in California Rules of Court, rule 3.853, which states that mediation must be conducted “in a manner that supports the principles of voluntary participation and self-determination by the parties.”

This rule has been around since 2003, with the Advisory Committee Comment explaining that “voluntary participation and self-determination are fundamental principles of mediation that apply both to mediations in which the parties voluntarily elect to mediate and to those in which the parties are required to go to mediation in a mandatory court mediation program or by court order.”

Contrary to this principle, the appellate court in Breslin v. Breslin (April 5, 2021, to be published at _ Cal.App.5th __) held that parties who fail to participate in a court-ordered mediation are bound by an agreement reached by the parties who participated, even when that settlement provides nothing to the non-participating parties.

The dispute in Breslin v. Breslin was handled in probate court. There was disagreement regarding the terms of a decedent’s trust, more particularly, a dispute regarding who was entitled to distribution from the trust.

The trial court ordered the parties to mediation, and that decision was affirmed on appeal. That’s a good holding – the court sitting in probate jurisdiction has the authority to order parties to participate in mediation. (See Prob. Code § 17206 [“The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition”].)

But in Breslin v. Breslin, the court went further. A lot further. On appeal, the court held the beneficiaries who did not attend “forfeited their interest [in the trust] when they failed to participate in mediation is ordered by the court.”

That is a ground-breaking decision, and does not comport with the rules for mediation. Mediation is fundamentally different from arbitration or trial. In the latter two, binding decisions are made by a third-party, be it the arbitrator, the judge, or a jury. However, in mediation, the only persons who can make decisions are the parties themselves. Which is the beauty of mediation.

Until Breslin v. Breslin, no one would have believed that the sanction for failure to attend a mediation was forfeiture of the entire claim. Clearly, lesser sanctions were available to the court, so the move to the “death penalty” against the non-participating parties was extreme.

Obviously, the circumstances of the case caused substantial heartburn for the court of appeal. The original opinion was issued by the court on January 26, 2021 (published at 60 Cal.App.5th 167). The court conducted a rehearing and issued a second opinion, superseding the original opinion, on April 5, 2021. The same three-judge panel heard both appellate arguments. The original panel voted 3-0; on appeal, one judge dissented, resulting in a two-to-one opinion.

Breslin v. Breslin is wrongly decided. Nobody in mediation has the authority to make binding decisions as against any other party. The only persons whose interests can be decided in mediation are those parties who consent to a voluntary resolution. Breslin v. Breslin should be de-published because it fundamentally misconstrues the purpose of mediation.

Pulte Homes Corporation v. Williams Mechanical, Inc. – Dissolution of Corporation Not Possible When Corporation is Suspended by Franchise Tax Board

The recent decision in Pulte Homes Corporation v. Williams Mechanical, Inc. (Aug. 9, 2016) 2 Cal.App.5th 267 was arose from a claim by Pulte for “$69,576 based on Williams’s allegedly negligent performance of a subcontract for the installation of plumbing in two residential construction projects.”

The advance sheets contained the entire opinion.  When the decision was published in the Official Reports, an important statement by the court was omitted.  Here’s the omitted portion:

“The issue is complicated by the fact that a corporation can be suspended in two ways: It can be suspended by the Franchise Tax Board for failure to pay taxes or failure to file a tax return (Rev. & Tax. Code, §§ 23301, 23301.5), or it can be suspended by the Secretary of State for failure to file an annual statement of information. (Corp. Code, §§ 1502, 2205.)

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“The parties have not mentioned Revenue and Taxation Code section 23561, although it has some bearing on the issue.  It provides, as relevant here:

‘No decree of dissolution shall be made and entered by any court, nor shall … the Secretary of State file any such decree, or file any other document by which the term of existence of any taxpayer shall be reduced or terminated … if the corporate powers, rights, and privileges of the corporation have been suspended or forfeited by the Franchise Tax Board for failure to pay the tax, penalties, or interest due under this part.’ Get full service for your legal inquires.

“This appears to mean that, if a corporation is suspended for failure to pay taxes, it cannot dissolve.”

Comment – I’m relieved that this part was not included in the published opinion.  But it is certainly worrisome.

Pulte Homes Corporation v. Williams Mechanical, Inc. (Aug. 9, 2016) 2 Cal.App.5th 267

Taylor Anderson LLP v. U.S. Bank – Chargeback of Cashier’s Check Approved by Court

The law of payment systems has interested this writer for many years.  It is an area of law filled with arcane and technical rules, most of which are never encountered in day-to-day transactions, and that’s why is important to have professionals to help you with this, Legal Riordan Lawyer Canberra has proven excellence in legal representation for individuals in matters involving: divorce & separation, wills & probate, conveyancing, family law and administrative law, within the Weston Creek – Canberra ACT region. When speaking of divorce proceedings in Tucson, Arizona, it is always wiser to partake in negotiations to come to a compromise that satisfies both parties. divorce lawyer in Tucson and their trusted team lawyers will guide you every step of the way through the process of divorce.

Think of it.  Millions of checks are processed each day, yet it is a rare occurrence when a legal issue arises involving a check.  The law of payment systems, then, operates smoothly and mostly invisibly.

But when a legal issue does arrive, the customer often learns of some harsh rules that favor the bank.  Such is the case in Taylor Anderson, LLP v. U.S. Bank N.A., 2014 U.S. Dist. LEXIS 43667 (D. Colo. Mar. 31, 2014), where the customer learned that the phrase “the check has cleared” does not also mean “the bank cannot charge this item back to you at a later time.”

Here are the facts.  Plaintiff Taylor Anderson fell prey to some version of the Nigerian scam.  In September 2012, plaintiff deposited a $191,000 cashier’s check into its client trust account.  On October 1, after deducting a $2,000 fee, plaintiff informed the bank that it planned to wire the remaining $189,000 in check proceeds to its “client” in Japan.

By email, a firm employee asked whether the check “had cleared.”  A bank employee followed up an hour later in an email stating that the check “was drawn on Chase, and has cleared.”  Based thereon, plaintiff initiated the wire transfer to Japan.

Several days later, Chase Bank determined that the check was fraudulent.

Note: This really shouldn’t happen under payment system law.  It should be difficult for a fraudulent cashier’s check to enter the system, particularly in this amount.  Plaintiff would have been better served to obtain payment directly from Chase Bank as an “on us” item.

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Thereafter, U.S. Bank (the holder of the trust account) charged-back the $189,000 against Taylor Anderson.  The law firm filed an action sounding in theories of breach of contract, negligent misrepresentation, fraud, and negligence.

This quote tells you where the court is going with the case.  Buried in the customer account agreement, the court found a provision which “explicitly states a second time the just because a deposit has ‘cleared,’ it does not follow that the funds are definitively in the account or that the crediting of those funds is not subject to reversal.”

Note: That’s certainly not the analysis that most bank customers were expect.  According to the court, you need to confirm that the check (i) “has cleared” and that (ii) there is no continuing “right of reversal.”

The court held that there was no misrepresentation, finding that:

“This Court sees no representation from U.S. Bank establishing that the check had both cleared and that the credit in the account was not subject to reversal. Rather, all the representations in the record demonstrate that U.S. Bank stated only that the check had ‘cleared’ …

“Contrary to Taylor Anderson’s contentions, U.S. Bank did not provide false information to Taylor Anderson – it merely provided information that was accurate and faithful to the Agreement, but which Taylor Anderson did not fully appreciate.”

Note: There are your magic words.  If you ask the bank whether the check has “cleared,” you also need to confirm that the check “is not subject to reversal.”  Otherwise, you will be exposed to a chargeback.

Having found for the bank on the breach of contract theory, the court ruled against plaintiff on all three remaining counts by application of the “economic loss” rule, another technical “rule” that can sneak up on an unsuspecting plaintiff.

Explained the court,

“Next, Taylor Anderson advances negligence, negligent misrepresentation, and fraud claims against Defendants.  All three of these claims are predicated on Taylor Anderson’s allegation that the Defendants’ ‘voluntarily investigated the origins and validity of the check in question and either fraudulently or negligently reported what they had determined to Defendants.’

“These claims are all barred by the Economic Loss Rule … Broadly speaking, the economic loss rule is intended to maintain the boundary between contract law and tort law …

“The rule prohibits a party suffering only economic loss from the breach of an express or implied contractual duty to assert a tort claim for such a breach absent an independent duty of care under tort law …

“Taylor Anderson attempts to argue around the force of the Economic Loss Rule by suggesting that defendants incurred allegedly ‘independent duties’ by allegedly agreeing to investigate the validity of the check.  But that is just another way of saying that the defendants were performing their contractual duty.”

That’s tough sledding for plaintiff – a pair of gotchas did in the law firm.

Taylor Anderson, LLP v. U.S. Bank N.A., 2014 WL1292804, 2014 U.S. Dist. LEXIS 43667 (D. Colo. Mar. 31, 2014).

Fresno County Unemployment Rate 2006-2016

This chart shows the unemployment rate in Fresno County (on a monthly basis) from 2006 to 2016.  It is based on the official data compiled by the California Economic Development Department. (click to enlarge)

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Some points of interest:

● The highest monthly unemployment rate was 18.4% in February 2010.

● The lowest monthly unemployment rate was 6.4% in September 2006.

●The President of the Federal Reserve Bank of San Francisco says that his goal is an unemployment rate of 4.9%, so we have a long ways to go in Fresno County.

● The unemployment rate touches its lowest level on an annual basis each September (not surprisingly corresponding with harvest season).

● I read a report stating that Fresno County had experienced 59 consecutive months of a decrease in the unemployment rate.  That report is not supported by the data.

● How does the decrease in migrant farm labor affect the Fresno County numbers?  Hard to tell.  Many reports say that the number of migrant farm workers has decreased in the past decade.  Yet Fresno County’s unemployment rate in 2016 is much higher than it was in 2006.  Fewer migrant workers but higher unemployment?  Does not make intrinsic sense.

Here is the link for the source data.

 

 

Rancho Mirage Country Club v. Hazelbaker – Another Reason Not to Fight Your Homeowners Association

There’s an old saying – “You can’t fight city hall.”  In the case of a homeowners association, the saying should be, “You can’t afford to fight a homeowners association.”  Because the deck is stacked against the homeowner.

In the recent case of Rancho Mirage Country Club Homeowners Ass’n v. Thomas B. Hazelbaker (Aug. 8, 2016) ___ Cal.App.4th ___, the stakes for the homeowner were dramatically low.  “Defendants made improvements to an exterior patio, which plaintiff Rancho Mirage Country Club Homeowners Association contended were in violation of the applicable covenants, conditions and restrictions (CC&Rs).”

What was the original dispute? “The agreement called for defendants to make certain modifications to the patio, in accordance with a plan newly approved by the Association; specifically, to install three openings, each 36 inches wide and 18 inches high, in a side wall of the patio referred to as a ‘television partition’ in the agreement, and to use a specific color and fabric for the exterior side of drapery.”

It seems the defendants had a burr under their saddle regarding the modifications.  “Subsequently, the parties reached [a modified] agreement … instead of three 36-inch-wide openings, two openings of 21 inches, separated by a third opening 52 inches wide, were installed in the wall, and a different fabric than the one specified in the mediation agreement was used for the drapery.”

Oy vey.  Someone went to court over this issue?  “While the lawsuit was pending, defendants made modifications to the patio to the satisfaction of the Association.  Nevertheless, the parties could not reach agreement regarding attorney fees.”

In the end, the fight was over attorney’s fees.  Here’s a big hint – never go to trial if the only issue in dispute is attorney’s fees.  Figure out how to settle.

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According to the court, the Association prevailed in the litigation.  “The analysis of who is a prevailing party [ ] focuses on who prevailed on a practical level by achieving its main litigation objectives … The Association wanted defendants to make alterations to their property to bring it in compliance with the applicable CC&Rs, specifically, by installing openings in the side wall of the patio, and altering the drapery on the patio.  The Association achieved that goal.”

Another hint – The homeowner, as a practical matter, will never achieve a complete victory in litigation.  Any relief to the Association tips the attorney’s fees statute to the Association.

Held the court, “Once the trial court determined the Association to be the prevailing party in the action, it had no discretion to deny attorney fees.  The magnitude of what constitutes a reasonable award of attorney fees is, however, a matter committed to the discretion of the trial court.  As noted above, in reviewing for abuse of discretion, we examine whether the trial court exceeded the bounds of reason.”

And, to rub salt in the wound, “The Association correctly asserts that if it prevails in this appeal it is entitled to recover its appellate attorney fees …

“The judgment [for $18,991 in attorney fees, plus $572 in costs] is affirmed.  The Association is awarded its costs and attorney fees on appeal, the amount of which shall be determined by the trial court.”

Rancho Mirage Country Club Homeowners Ass’n v. Thomas B. Hazelbaker (Aug. 8, 2016) ___ Cal.App.4th ___

What is an Account Stated? (A Common Law Cause of Action that Has Outlived its Usefulness)

California still recognizes certain antiquated common law causes of action.  When I say antiquated, I mean that the cause of action has been known at law from longer than 600 years.

One of the common law causes of action is the “account stated.”  Here’s an explanation from Karl Llewellyn, the principal draftsman of UCC Article 2 (“Sales”) and an eminent commercial law historian, regarding the basis for an “account stated.”

“A situational concept has to do with some collection of events or people or both seen as recurring, seen as a type … We have, for instance, a situational concept of ‘account stated,’ with rules of law clustered around it which give it a peculiarly definitive character in settling up the state of obligation.

“It was built around periodic reckoning up of running accounts in a world in which book-keeping was not yet what it now is, prices for goods shipped were not reckoned by contract in advance, currencies varied from town to town, and mails were slow.

“‘Stated’ had then a punch.  It implied thoughtful, careful going over on both sides as for a grave affair, and it implied real need for getting clarity about a fresh start.

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“None of this is in the flavor of the label as the conditions on which the high significance of the situation rested have moved from under.  The principle has faded out.”

As should the cause of action, which lingers on long after its purpose has faded.

Karl N. Llewellyn, The Theory of Rules, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press 2011)

Janice H. v. 696 North Robertson, LLC – Premises Liability is Never a Clear Question in California

The recent decision in Janice H. v. 696 North Robertson, LLC (July 14, 2016) ___ Cal.App.4th ___ addressed the always difficult question of premises liability.  More specifically, When is the operator of real property liable for an injury to a guest in a unisex bathroom?  The court’s answer – a resounding, It depends.

The facts were somewhat lurid, or as we might say, Only in LA.  “On a Sunday in March 2009, Plaintiff drank with a friend at bars in Pasadena and then in West Hollywood.

“Plaintiff went to Here Lounge to wait for her friend. At the time, Here Lounge was a very popular West Hollywood dance club and bar … Here Lounge also fostered a sexually charged atmosphere by permitting bartenders to wear nothing but underwear.”

Comment – The Dept of Alcoholic Beverage Control later closed the club, which was described as a gay bar, based on “allegations of lewd conduct by go go dancers.”

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From the Here Lounge (now closed).

Explained the court, “Here Lounge designed the bar to have a common restroom area accessible to both men and women.  On busy nights, a long line of patrons waited to use the restrooms …

“Plaintiff went into an ADA restroom stall and shut the door.  As was common among patrons of Here Lounge, Plaintiff did not lock the door.”

Comment – How in the world was this fact proven – That it was “common” for patrons at the club to leave the door to the bathroom stall unlocked?

While in the bathroom stall, plaintiff was assaulted by a “man [ ] later identified as Victor Cruz, a bus boy at Here Lounge … The assault, which caused Plaintiff to lose her virginity, lasted about five minutes and ended with Victor ejaculating on Plaintiff’s dress.”

The jury found in favor of plaintiff, and awarded $5.42 million in damages.  The verdict was affirmed on appeal, because, frankly, jury verdicts are always affirmed on appeal.

Here’s how the court handled the issue of premises liability.  “The issue is whether Here Lounge owed a duty to use reasonable care in securing the restrooms for its patrons … A possessor of land owes a duty to an invitee to make the property reasonably safe for the intended use by the intended user.  Thus, the property holder only has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure.”

The club owner argued that it was not liable because there had been no prior assaults.  This argument was unavailing.  “Here Lounge argues it has no duty unless and until it experiences a similar criminal incident.  We disagree.  While a property holder generally has a duty to protect against types of crimes of which he is on notice, the absence of previous occurrences does not end the duty inquiry.  We look to all of the factual circumstances to assess foreseeability.”

Comment – Great.  It’s always a “facts and circumstances” question.

“In this case, Here Lounge promoted a sexually charged atmosphere and designed an open restroom area allowing unrestricted entry for men and women.  It designed the larger ADA stalls with full length walls shielding the occupants from view.

“Here Lounge knew that sexual activity in the restrooms and elsewhere in the club was an ongoing issue … There was testimony that sexual activity in the club increased towards the end of the night and tended to occur in the ADA bathroom stalls, like the stall where Plaintiff was raped, because the full length doors shielded the occupants from view.  The owner also admitted that an employee once observed a woman performing oral sex on a man at the club and ignored it …

“This evidence [ ] made the risk of harm to intoxicated and vulnerable patrons reasonably foreseeable, regardless whether the club was on notice of a prior similar incident.  Knowing the potential serious harm of non-consensual sex, a reasonable person managing the property would have posted a guard in the restroom area whenever the club was open to the public, even when attendance tapered off.

“The burden for monitoring the restroom area during business hours was small, requiring only a change in policy to eliminate the guards’ individual discretion to leave the restroom area and roam the premises when patronage dwindled.”

Result – Judgment for plaintiff affirmed.

Janice H. v. 696 North Robertson, LLC (July 14, 2016) ___ Cal.App.4th ___