About Michael Daymude

Michael Daymude is a lawyer in Sherman Oaks, California. He has practiced law in the Los Angeles area for nearly 40 years. He is a graduate of the UCLA School of Law where he was elected to both the UCLA Law Review and the Moot Court Honors Program. His undergraduate degree is in Economic from the University of California, Irvine. Michael represents individuals and small businesses in the Greater Los Angeles area. He can be reached at 818.971.9094 daily.

Anti-SLAPP: Must Bring Motion Within 60 Days of Earliest Complaint

  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.)

Statute of Limitations: Pretrial Jail Time Does Not Toll

   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.

Anti-SLAPP Statute Applies to Probate Petitions That May Constitute a Contest

  The Second Appellate District in Urick v. Urick holds that the plain language of the anti-SLAPP statute (Code of Civil Procedure section 425.16) requires that it be applied to probate court petitions, including ones that may be a contest under Probate Code section 21310 et seq. Continue reading

Accepting Benefits of Conditional Use Permit Forfeits Right to Maintain Objections

    The California Supreme Court, in Lynch v. California Coastal Commission, holds that by accepting the benefits of a conditional use permit and building pursuant to the conditions, plaintiffs forfeited their right to maintain their objections to the conditional use. “By accepting the benefits of the permit and building the seawall, plaintiffs effectively forfeited the right to maintain their otherwise timely objections.”

    The court reasoned that permit holders are obliged to accept the burdens of a permit along with its benefits. This rule stems from the equitable maxim: “He who takes the benefit must bear the burden.”

    Plaintiffs obtained all the benefits of their permit when they built a seawall. They cannot now complain of its burdens, i.e., that the permit prohibits reconstruction of a lower stairway to the beach, that it expires in 20 years, and that the seawall cannot be relied upon for future blufftop redevelopment as a source of geological stability or protection unless plaintiffs obtain a new permit within the 20-year period.

Anti-SLAPP: Court Has Jurisdiction to Strike and Award Attorney Fees

  The California Supreme Court, in Barry v. The State Bar, holds that a court lacking subject matter jurisdiction over a claim may nonetheless grant a special motion to strike the claim under section Code of Civil Procedure section 425.16, and thus may award attorney’s fees and costs to the prevailing defendant.

Attorney-Client Privilege Applies to Invoices in Pending Matters

  The California Supreme Court in L.A. County Bd. Supervisors v. Super. Ct. (ACLU of SoCal) holds that the attorney-client privilege applies to everything in an attorney’s invoice, including the amount of aggregate fees, when a legal matter remains pending and active “even if the information happens to be transmitted in a document that is not itself categorically privileged.” Continue reading

Appeal of Final Judgment: Successful Party Entitled to 2nd Peremptory Challenge

  Code of Civil Procedure 170.6 provides the statutory basis to disqualify a judge from hearing a proceeding. A peremptory challenge is usually made by filing an affidavit or declaration under penalty of perjury that the judge is prejudiced against a party or attorney for a party using a locally approved form.

  If the affidavit is duly presented (timely), no further act or proof is required and a new judge must be assigned, except that no party or attorney shall be permitted to make more than one such motion in any action or proceeding, and if there are multiple plaintiffs or defendants, only one motion for each side may be made.

  What about the circumstance where an appeal is taken from a judgment or interim order? In that circumstance, section 170.6 provides that a successful party on appeal may exercise a second peremptory challenge provided the appeal is from a final judgment, but not if the appeal is from an interim order.

  The case is McNair v. Superior Court (National Collegiate Athletic Assn.): “…[W]e hold that Code of Civil Procedure section 170.6, subdivision (a)(2)  allows a party to exercise a second peremptory challenge only after prevailing in an appeal from a final judgment, but not following reversal of an interim decision.”

Elder Abuse: Absolute Immunity for Mandated Reporters

  Welfare and Institutions Code section 15634 in the Elder Abuse and Dependent Adult Civil Protection Act provides mandated reporters absolute immunity from false arrest claims that stem from the duty to report suspected financial abuse of an elder, including the act of signing a citizen’s arrest form. The case is Santos v. Kisco Senior Living.

Wrongful Foreclosure: Prejudice Results from the Foreclosure of a Void Assignment

  In Yvanova v. New Century Mortgage Corp the California Supreme Court held that in a case where a homeowner alleges a nonjudicial foreclosure sale was wrongful because of a void assignment, the homeowner has standing to sue for wrongful foreclosure.

  In Sciarratta v. U.S. Bank National Association the question of “prejudice” left open in Yvanova was decided. Where a homeowner alleges foreclosure by one with no right to do so, do such allegations alone establish the requisite prejudice or harm necessary to state a cause of action for wrongful foreclosure?  Or instead, to adequately plead prejudice, does the plaintiff-homeowner have to allege the wrongful foreclosure interfered with his or her ability to pay on the debt, or lead to a foreclosure that would not have otherwise occurred?  Continue reading

Judgment Debtors: The Qualified Tax Return Privilege

  There is no federal or state constitutional right to maintain the privacy of tax returns. However, California courts have interpreted state taxation statutes as creating a statutory privilege against the disclosure of tax returns. The purpose is to encourage voluntary filing of tax reporting of income and thus to facilitate tax collection.

  The privilege is not absolute. It will not be upheld in three situations: when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved. This last exception is narrow and applies only “when warranted by a legislatively declared public policy.” Continue reading