Category Archives: Uncategorized

Almanor Lakeside Villas HOA v. Carson

Click here for opinion

Almanor Lakeside Villas reconfirms the power of an HOA under the Davis-Stirling Act, provides a solid outline of the discretion of the court to award attorneys fees, and reaffirms the inefficiencies of the civil litigation system.

The owner of a lodge within an HOA disputed certain fines assessed by the association.  At trial, the HOA estimated that the owner owed $54,000.00 in dues, fees, fines, and interest.  The judge in a court trial awarded the HOA $6,620.00.  Both sides moved for attorney’s fees.  The court concluded that the HOA prevailed and awarded the HOA $101,803.50 in attorney’s fees and costs.

The opinion provides a good summary of when courts do and do not have discretion to award fees and what goes into a determination of which side is the prevailing party.  It recognizes, however, that the Davis-Stirling Act (California Civil Code 4000-6150) requires an award of attorney’s fees to the prevailing party.

The owner successfully whittled the claim down by almost 90%, but he ends up having to pay almost twice the amount claimed by the HOA, in addition to his own fees and costs.  Sometimes, a good result yields a bad outcome for cases where attorney’s fees, as opposed to the merits, drive a lawsuit.

 

I thought I was reading the Onion….

I should feel better about increasing employment opportunities for lawyers. . . But this is sad.  Pats fans everywhere should be ashamed. 

Law360, New York (April 5, 2016, 3:53 PM ET) — A group of New England Patriots fans asked a Massachusetts federal court on Monday to issue a temporary restraining order that would save a first-round draft pick revoked by the NFL in connection to the Deflategate scandal, saying the punishment is unfair and discriminates against Pats fans.
The fans filed a complaint and expedited motion for a temporary restraining order and preliminary injunction that would prevent the league from revoking the Patriots’ pick ahead of the NFL draft scheduled to begin April 28. 

U.S. top court rules for DirecTV in arbitration case | Reuters

This is a big deal.  California courts have been fighting for years to carve out exceptions to the general rule upholding arbitration agreements, especially those in consumer agreements.  This new case provides some clarity that if you sign a contract that includes an agreement to arbitrate, then you will arbitrate and you will not be able to file a lawsuit.

The U.S. Supreme Court on Monday ruled for DirecTV Inc, backing the satellite television provider’s efforts to enforce arbitration agreements signed by its customers in California.

Source: U.S. top court rules for DirecTV in arbitration case | Reuters

Ninth Circuit Blesses Iskanian re: Arbitration of PAGA Claims | The National Law Review

PAGA Claims | The National Law Review

The Ninth Circuit inched California closer to clarity on the the scope of preemption of state law by the Federal Arbitration Act.  While AT&T Mobility v. Concepcion, 563 U.S. 321 cast a wide net of preemption in favor of arbitration clauses, the width of that net has resulted in a struggle between California courts seeking to apply their state laws and federal courts seeking to apply theirs.

On September 28, 2015, the Ninth Circuit Court of Appeals issued a 2-1 decision in the long-awaited case of Sakkab v. Luxottica Retail North America, Inc. (No. 13-55184, D.C. No. 3:12-cv-00436-GPC-KSC).  Sakkab held that a waiver of class actions in an employment agreement was unenforceable to the extent that it preempted state court claims under the California Private Attorney General Act (“PAGA”), affirming the California Supreme Court case of Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348 (2014) (“Iskanian”), which held that employees could not waive their right to bring representative claims under PAGA.

Easements- conflicts between neighbors

Dolnikov v. Ekizian

Dolnikov v. Ekizian allows an owner of a driveway easement to construct a retaining wall and grade a driveway.  The owner of the land that crossed the easement was not happy and would not cooperate by signing off on the permits.

The important legal issue is that an owner of land subject to an easement can interfere with the use of an easement without actually blocking the right of way.

The truly important issue is that these two neighbors have been litigating this dispute since September 2004.  This is going to be their tenth Christmas as litigants.  All litigators, myself included, have an interest in maintaining lawsuits, but neighbors have to be neighbors long after the attorneys deliver their final bill for legal services.

 

Treatment of debt relief in a short sale.

This is a big deal.

http://www.car.org/newsstand/newsreleases/2013releases/ftbclarification

IRS and California Franchise Tax Board declare California distressed home sellers not liable for federal or state income tax on short sales.

It is not clear whether all debt secured by a residence will be treated the same, since some secured debt is a recourse obligation, but this decision provides some comfort for people dealing with the emotional upheaval of overwhelming debt and the loss of a home.

McGeorge law school to cut enrollment by 40 percent, lays off 9 staff members

Click for ABA Journal article.

In an age of outrageously high tuition and disappointingly low employment numbers, McGeorge Law School in Sacramento is facing reality by cutting its student body by 40%. This can only be a first step to redefining the delivery of a legal education.

Can a mediator with an opinion be a neutral? Yes!

Click for article.

Ken Strongman, one of my favorite mediators, comments on the role of a mediator as a neutral and as a source of valuable evaluative information critical to any mediated settlement.

Second Bite at the Apple: How Unregistered Domestic Partners and Other Cotenants Can Still Avoid Property Tax Reassessment | CEB Blog – Your Partner In Practice

Second Bite at the Apple: How Unregistered Domestic Partners and Other Cotenants Can Still Avoid Property Tax Reassessment | CEB Blog.

New statute on how to avoid reassessment on death of a co-tenant.  Qualifying for the exclusion is complicated but the rewards can be significant.

 

The U.S. Postal Service– A Nickel? Really?

Yesterday, the mail carrier for the building where I work stopped by my office regarding a mailing with 95 cents postage due.  It was a CD of documents from a copy service that already had over $1 in postage.  I handed a dollar bill to the mail carrier and he said that he would owe me the nickel.

The envelope with the CD was very light, weighing less than two ounces, but the envelope was nearly square, which resulted in total postage of just over $2.

Question 1- is it the best use of the mail carrier’s time to make a special trip to collect 95 cents to impose the surcharge for square envelopes or should he just have delivered the envelope?  You could say that because I had a dollar bill in my wallet, it was a big win for the postal service even though the value of the mail carrier’s time spent traveling from the mailboxes in the garage to my office and back was greater than the dollar recovered.

Today’s mail contained an U.S. Postal Service envelope, like the one used for stamps, with a nickel taped inside.  The envelope probably cost more than a nickel.

Question 2- How has the United States Postal Service stayed in business as long as it has?