Expert Witness Exchange: Service by Mail A Trap for Unwary

   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

Insurance Adjusters: Not Immune from Liablity for Negligent Misrepresentation

  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

Life Insurance Purchased with Community Funds is Community Property

  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. ValliContinue reading

Non-Modifiable Adult Child Support? Perhaps.

  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

Usury Law Not Applicable to Judgment Creditor’s Forebearance Agreement

  In consolidated appeals, and in a lengthy opinion in Bisno v. Kahn, the First Appellate District concludes that California’s usury law does not apply to a judgment creditor’s agreement to forbear collecting on a judgment. Held: “Because the usury law does not expressly prohibit a party from entering into an agreement to forbear collecting on a judgment, usury liability does not extend to judgment creditors who receive remuneration beyond the statutory 10 percent interest rate in exchange for a delay in enforcing a judgment.”

  However, “any forbearance fee does not become part of the judgment and is not an amount that must be paid to satisfy the judgment under the Enforcement of Judgments Law [citation omitted]. Rather, a forbearance agreement is a contract between the judgment creditor and the judgment debtor that is separate from the judgment to which it applies. Consequently, a forbearance agreement must be enforced in a separate contract action and is subject to standard contractual defenses such as duress and unconscionability.”


   Mr. Daymude consults with clients and accepts cases involving California’s usury law and cases to enforcement judgment. For other types of cases accepted, please scroll this page and visit My Practice page. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

Real Estate Licensees: Dual Agency and Fiduciary Duty

  A licensed real estate salesperson has a fiduciary duty equivalent to the duty owed by the employing broker. A dual agent has fiduciary duties to both the buyer and seller. When a broker is the dual agent of both the buyer and the seller in a real property transaction, the salespersons acting under the broker have the same fiduciary duty to the buyer and the seller as the broker. What is that duty? Continue reading

Equitable Subrogation Gives Effect to Parties Intention re Lien Priority

  The doctrine of equitable subrogation allows a court to give effect to the intentions of the parties with respect to lien priority in secured real estate transactions. The doctrine can be stated as follows: A lender who advances money to pay off an encumbrance on real property, at the request of the owner or holder of the encumbrance, with the understanding that the advance is to be secured by a first priority lien: 1) Is not a volunteer; 2) In the event the new security is not a first lien, the holder will be subrogated to the rights of the prior encumbrancer, unless the new encumbrancer is charged with “culpable and inexcusable neglect” or the superior or equal equities of others would be prejudiced.  Continue reading

Real Estate Broker Not Liable for Factually Accurate Statement in MLS

  Real estate brokers owe their clients fiduciary duties—they owe third parties, including adverse parties in a real estate transaction, only duties imposed by statute. The statutory duties owed to third parties include a general obligation of honesty, fairness, and full disclosure. A broker’s specific duties with respect to any listing or information posted with a Multiple Listing Service are specified in Civil Code section 1088. Continue reading

Unlawful Detainer: Personal Service of Notice to Quit Must Be Attempted; Post Forclosure Plaintiff Must Prove Duly Perfected Title

  In an unusual move, the California Supreme Court ordered publication of an opinion issued by the Santa Clara County Superior Court, Appellate Division, in an limited jurisdiction unlawful detainer case: Bank of New York Mellon v. Preciado. The decision specified two errors in the unlawful detainer proceedings: 1) the proofs of service of the 3-day notice failed to show that personal service was attempted; 2) the post foreclosure plaintiff failed to prove its title was duly perfected. Each defect required reversal of the judgment and a new and different judgment in favor of defendants. Continue reading

Liquidated Damages: Provision in Stipulation for Judgment an Unenforceable Penalty

  Plaintiff sued on a promissory note for $85,000. The parties agreed to settle for the sum of $38,000, payable in installments over 24 months and entered into a stipulation for entry of judgment. The stipulation provided that if a payment was not made on time the original amount of $85,000 became due.

  Can plaintiff recover the sum of $85,000, minus credit for payments made under the agreement? No. Plaintiff is limited to the sum of $38,000, minus credit for payments made under the stipulation. Purcell v. Schweitzer. Continue reading