Here’s a thorny problem. The trial court found that the seller of a house lied to the buyer. The buyer sought the remedy of rescission. The trial court denied relief, in part because of events that occurred with the passage of time. The court of appeal disagreed in Wong v. Stoler (June 23, 2015) __ …
Continue reading “Wong v. Stoler – Delay Does Not Benefit Defendants”
When you read the cases, it’s hard not to reach the conclusion that the courts view a liability release agreement with distrust. A new high water mark in this analysis was reached in the recent decision in Etelvina Jimenez v. 24 Hour Fitness USA, Inc. (June 9, 2015) __ Cal.App.4th ___. In Jimenez, the court …
Continue reading “A Deal is Deal, Except When You Pump Your Arms”
The law is filled with rules. Rules give guidance to judges. Sometimes the legal result does not square with the facts. In Estate of Britel (2015) 236 Cal.App.4th 127, “the court admitted into evidence a DNA test showing a 99.9996 percent probability that the decedent (Amine Britel) was A.S.’s (the child’s) father.” Yet the court …
Continue reading “Estate of Britel – When is a Child Not a Child?”
Case law reflects a tension in the interpretation of fiduciary duties. One camp favors a “I know it when I see it” approach, while the more rigorous jurists seek to discern the basis for imposition of such liability. This tension is on full display in the recent en banc decision in U.S. v. Milovanovic, ___ …
Continue reading “U.S. v. Milovanovic – Ninth Circuit Adopts a Sloppy Fiduciary Standard”
A recent case illustrates the need for a beneficiary to exercise care when making a bid at a trustee sale. In Biancalana v. TD Service Company (Oct. 31, 2011) 2011 DJDAR 15972, the secured debt was $219,105. However, due to error by the beneficiary, the trustee was instructed to make an opening bid of only …
Continue reading “Trustee’s Foreclosure Sale Is Valid, Despite Substantial Error in Opening Bid”
A recent case reinforces the necessity to comply with the technical requirements for prosecuting an unlawful detainer complaint in California. [Commonly known as an eviction.] Specifically, the issue at trial was whether the three-day notice had been served properly. The trial court held that service was defective. This was reversed on appeal, based on the …
Continue reading “Strict Compliance Regarding Three-Day Notice Essential for Eviction Proceeding”
This author has often complained that the trust laws have not kept pace with modern practice as it relates to estate planning. Estate planning trusts (a.k.a. “living trust”) are used as will substitutes. The rules pertaining to wills are well known, and are established by case and by code. In contrast, the statutory rules relating …
This writer has commented regularly that the modern estate planning trust is a legal fiction. A convenient legal fiction, mind you, but still a legal fiction. The estate planning trust (also known by the unfortunate term, “living trust”) is a merely a will substitute. It takes effect – meaning, it provides a benefit to a …
The trend in the courts has been to reduce the legal theories available to persons who suffered losses during the mortgage meltdown. Traditional theories based on breach of contract, fraud, and promissory estoppel, remain viable causes of action. Yet the more exotic theories seeking to impose liability have been narrowed and often eliminated. Such is …
The fees in a probate case trigger a reaction that sometimes borders on panic. Part of the reasoning behind the use of an estate planning trust (sometimes referred to as an inter vivos trust) is that the trust will save on attorney’s fees. However, as I tell clients, it only works if the beneficiaries get …