In Black Sky Capital, LLC v. Cobb, the California Supreme Court holds that Code of Civil Procedure section 580d—that prevents a foreclosing creditor at a nonjudicial foreclosure sale from collecting a deficiency judgment—does not prevent the same creditor holding two deeds of trust on the same property from recovering a deficiency judgment when its junior lien is extinguished by the nonjudicial foreclosure of its senior lien. Continue reading
The First Appellate District, in Connelly v. Bornstein, adds to the line of cases holding that a malicious prosecution action against an attorney is governed by Code of Civil Procedure section 340.6(a). That section imposes a one-year statute of limitations for actions “against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services.”
The result is contrary to the statute of limitation applicable to other litigants of a malicious prosecution claim. Other litigants are subject to the more general two-year statute of limitation set forth at Code of Civil Procedure section 335.1, applicable to injury to a person caused by the wrongful act or neglect of another.
A “Trust Transfer Deed” that purportedly granted husband’s interest in real property to wife failed to accomplish a transmutation.
Pursuant to Family Code section 852(a) a transmutation is not valid unless made in writing by an express declaration by the party adversely affected. To satisfy the “express declaration” requirement the writing must state on its face that the characterization or ownership of the property is being changed. Extrinsic evidence is not permitted to prove an ambiguous writing. Therefore, the express declaration must unambiguously indicate a change in character or ownership of property for a valid transmutation. Continue reading
When real property is purchased at a foreclosure sale, it is frequently necessary for the new owner to institute unlawful detainer proceedings to recover possession. Is it necessary for the Trustee’s Deed Upon Sale to record before a valid 3-day notice to quit is served?
In Dr. Leevil, LLC v. Westlake Health Care Center, the California Supreme Court answered this question in the affirmative. In reversing the Court of Appeals, the Court held that duly perfected title, including the recording of the Trustee’s Deed Upon Sale, is required before a valid 3-day notice to quit may be served.
Practice tip: after purchase at a foreclosure sale, duly perfect title and do not serve a 3-day notice to quit before the trustee’s deed records.
The First Appellate District reverses the trial court and holds that the court was obligated to grant relief under the mandatory provision of Code of Civil Procedure section 473(b), where plaintiff presented a sworn declaration from his counsel attesting that counsel mistakenly failed to respond to the demurrer by timely filing an amended complaint. Continue reading
The Court of Appeals determines that a standard interspousal transfer grant deed (ITGD) meets the requirements for a transmutation of the character of marital property under Family Code section 852.
Section 852 provides in pertinent part: “(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” Continue reading
The California Supreme Court agrees with the Court of Appeals in Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Company, Inc. and holds that an actual undisclosed conflict of interest renders an attorney fee agreement, including the arbitration clause, unenforceable against public policy.
Contrary to the Court of Appeals, however, it concludes that the ethical violation does not “categorically disentitle the law firm from recovering the value of the services it rendered to the manufacturer.” Principals of equity may entitle the law firm to “some measure of compensation” as determined by the trial court.
The California Supreme Court holds that under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains a cause of action to which it is directed, unless the court grants discretionary relief and permits late filing under subdivision (f). (Newport Harbor Ventures LLC v. Morris Cerullo World Evangelism.)
To survive a demurrer in a civil case, the plaintiff must assert his claims before the statute of limitations expires. However, the statutory deadline may be extended—or tolled—if, among other reasons, the plaintiff is “imprisoned on a criminal charge” when the cause of action accrues. A cause of action accrues when a party is entitled to prosecute an action based upon it.
In a case of first impression, the Second Appellate District holds in Austin v. Medicis that a plaintiff is “imprisoned on a criminal charge” within the meaning of Code of Civil Procedure section 352.1 when plaintiff is serving a term of imprisonment in state prison–not when plaintiff is merely incarcerated, pretrial, in the county jail.