Davis-Stirling: Partial Payments Reducing Assessments Must Be Accepted

  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

How to Count Days: California Courts

  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

Memorandum of Costs: Not Required for Fee Award Under Civil Code 1717

  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.”

Wrongful Foreclosure: Ineffective Securitization? So What?

  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

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