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) …
Category Archives: Developments
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 …
Taylor v. NU Digital Marketing, Inc. – Remedy of Unlawful Detainer Notwithstanding Contract for Sale
The remedy of unlawful detainer is available in three situations under California law, most commonly when a tenant holds over after termination of the lease, or when the tenant continues to occupy the property after breach of the lease. Less commonly, unlawful detainer is available to an owner “against an employee, agent, or licensee whose …
Ferguson v. Yaspan – Statute of Limitations Not Applicable to Defense Based on Rescission
In a lawsuit based on a contract, one party can seek relief based on the theory of rescission. Rescission can be considered an equitable judicial remedy. Under California Civil Code section 1689, rescission supports “extinction” of the obligation. Rescission can be pled as a basis for affirmative relief, or it can asserted as defense to …
Majd v. Bank of America – Violation of Dual Tracking Statute Supports Claim for Wrongful Foreclosure
California law now prohibits the practice of “dual tracking,” whereby a lender simultaneously pursues a default while also engaging in loan modification negotiations with the borrower. The question concerns the remedy available when there is a violation of the dual tracking law. The court in Kazem Majd v. Bank of America, N.A. (Jan. 14, 2016) …
In re Perl – 9th Circuit Changes Rules Relating to Bankruptcy Stay and California Eviction Law
The law of evictions – titled as “unlawful detainer” in California – is a technical area. The law has statutory roots as far back as the Forcible Entry Act of 1381, which prohibited the use of self-help to retake possession of real property. That remains an important concept in an action based on the unlawful …
The ABCs of Future Public Payments Law – Prof. Mark Burge
Strange how an idea that was once old can become new again. Roscoe Pound, Dean of the Harvard Law School, was a prolific legal writer in the 1920s and 1930s. From my perspective, his best work concerned the development of the American legal system from 1850 through 1900, as America reached the end of its …
Continue reading “The ABCs of Future Public Payments Law – Prof. Mark Burge”
ChinaCast Education Corporation – Fraud of Officer Imputed to Corporation
Here is a recent decision that is not a surprise under a traditional agent-principal analysis. Even so, it has to sting, because the corporation loses twice – first, when it was defrauded by the former president, and second when the corporation was sued by shareholders for the diminished value of their securities. The fact pattern …
Continue reading “ChinaCast Education Corporation – Fraud of Officer Imputed to Corporation”
Bankruptcy Filings Decrease Again in 2015
The federal bankruptcy courts publish detailed statistics on bankruptcy filings. California has four federal judicial districts, with Fresno located in the Eastern District. The 2011-2015 bankruptcy filings for the Eastern District of California continue to show a substantial decline, as shown in this table: Truly, the overall decline from 2011 to 2015 is astonishing, and …
Continue reading “Bankruptcy Filings Decrease Again in 2015”
Dorsey v. Superior Court – No Attorneys Fees in Small Claims Cases
As the jurisdiction of small claims court has increased (now up to $10,000), attorneys are called on more frequently to assist on appeal. (Ground rule – attorneys are not permitted to assist at the original trial, only on appeal.) In Dorsey v. Superior Court (Oct. 22, 2015) __ Cal.App.4th __, “The small claims court dispute …
Continue reading “Dorsey v. Superior Court – No Attorneys Fees in Small Claims Cases”