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
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.”
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
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
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
The Orange County Appellate Division concludes in Huntington Continental v. JM Trust that the Davis-Stirling Common Interest Development Act compels a homeowner’s association to accept and apply partial payments that reduce delinquent assessments owed, but not any other amounts due such as late fees, interest, attorney fees, and costs. This is true even if an action has been commenced to foreclose the lien since there is nothing in the Act precluding the acceptance of partial payments of delinquent assessments once litigation has commenced. Continue reading
Rossberg v. Bank of America is a case about factual allegations which will not win the day in a suit to enjoin a nonjudicial foreclosure sale. The Rossbergs attempted to allege defects sufficient to invalidate the recorded Notice of Default and sought to enjoin the foreclosure sale of their residence. The take-a-ways: Continue reading
An insurer agrees to provide a defense with a reservation of rights and approves independent counsel selected by the insured to represent the insured in an underlying tort action, pursuant to Civil Code section 2860 and San Diego Federal Credit Union v. Cumis Ins. Society, Inc. The insurer subsequently withdraws all reservations of rights and coverage defenses that give rise to the insured’s right to Cumis counsel. Must the insurer continue to pay the insured’s Cumis counsel after the insurer’s withdrawal of the Cumis-triggering reservations eliminated the conflict that created the need for Cumis counsel? The answer to this question is no, pursuant to Swanson v. State Farm General Insurance.
Michael Daymude consults with clients and accepts cases involving disputes with insurance companies, including disputes related to a defense under reservation of rights and the right to Cumis counsel. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael at 818.971.9409.
Civil Code section 1717, which authorizes an award of attorney fees to the prevailing party in a contract action, was intended to establish uniform treatment of fee recovery in actions on contracts containing attorney fee provisions and to eliminate distinctions between fee awards based on contract or statute. Thus, restrictive language in a contractual attorney fee provision will not always be given effect as equitable and public policy considerations under section 1717 prevail over technical rules of statutory construction. Continue reading