HELOC: Separate Statute of Limitations for Each Payment

  The Court of Appeal, in Piedmont Capital Management, etc., v. McElfish, confirms that a HELOC agreement that requires the borrower to make monthly payments and to pay the full amount by a specific date, which also grants the lender discretion whether to accelerate the loan due to a missed payment, does not contemplate that a breach as to a monthly payment is a breach as to the full amount absent acceleration.

  Suit on the agreement was, therefore, timely as to all missed monthly payments within the four years preceding its filing and timely as to all future payments because those payments were accelerated within that four-year “look back” period. [The statute of limitations for a breach of contract claim is four years per Code Civ. Proc., § 337.]

Change of Venue: Failure to Pay Transfer Fees Results in Dismissal

  The clerk’s mailing of a minute order to the parties is sufficient notice of the granting of a motion to transfer due to improper venue to start the 30-day clock running for payment of transfer fees. (Code of Civil Procedure section 399(a).) If transfer fees are not timely paid, dismissal is required.  (Southwestern Law School v. Benson (2019) BV032895, Appellate Division of the Los Angeles County Superior Court.)

 

1-Year Statute of Limitations: Malicious Prosecution Action Against Attorney

  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.

Anti-SLAPP Motion: Unavailable in Limited Civil Cases

  In writ proceedings, the Second Appellate District reverses the Los Angeles Superior Court Appellate Division and holds that a special motion to strike, or anti-SLAPP motion, pursuant to Code Civil Procedure section 425.16 may not be brought in a limited civil case. Continue reading

Failure to Oppose Demurrer: Mandatory Relief from Dismissal Available

  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

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: 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.

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.”

Hospital’s Failure to Maintain Equipment May Constitute Professional Negligence

  The California Supreme Court holds that where a plaintiff’s injury results from alleged negligence in the use and maintenance of equipment needed to implement a physician’s order concerning plaintiff’s medical treatment, the claim sounds in professional, rather than ordinary, negligence. The special statute of limitations period “for injury or death against a health care provider based upon such person’s alleged professional negligence” is applicable.

  Generally, a personal injury action generally must be filed within two years of the date on which the challenged act or omission occurred. [Code Civ. Proc., § 335.1.] However, unlike most personal injury actions, professional negligence actions against health care providers must be brought within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” [Code Civ. Proc., § 340.5.]

  The facts of any particular case for personal injury against a health care provider will determine whether the statute of limitations is lengthened, or shortened, by this holding. The case is Flores v. Presbyterian Intercommunity Hospital.