Monthly Archives: January 2013

Windsor Pacific, LLC v. Samwood Co., Inc.

B233514.DOC.

Prescriptive easement cases are often entertaining.  In Windsor Pacific, LLC v. Samwood Co., Inc., the plaintiff received from a neighbor written permission to use an access road over the neighbor’s property and property owned by a third party.  The neighbor had an option to purchase the property owned by the third party.

The plaintiff sued to claim an adverse and permanent right to continue to use the access road.  Consent, however, is a defense to any adverse use and the trial court agreed.  On appeal, the plaintiff claimed that the third party never granted permission to use the access road, making that part of the use adverse.

The court of appeal affirmed the decision of the trial court.  The plaintiff believed that its use of the entire access road was permissive when it entered into the written agreement with the neighbor.

The opinion confirms that the plaintiff was equitably estopped to claim an adverse use, regardless of whether or not the neighbor had the authority to grant permission on behalf of the third party.  The fundamental conclusion, however, is that courts are reluctant to grant a permanent interest in real property to a party that does not own it.

 

California Appeals Court Establishes Bright-Line Rule for Disclosure of ADR Affiliation

Second District Establishes Bright-Line Rule for Disclosure of ADR Affiliation.

An attorney who joined an ADR firm while representing a party in an arbitration conducted by the same firm needed to disclose to all parties in the arbitration.  Failure to do so resulted in the vacation of a favorable award after a nine-day arbitration hearing.

When evaluating potential conflicts of interest, there may be situations where disclosure is not technically required.  Disclose anyway.  This attorney will face a malpractice claim from a disgruntled client who incurred sizable costs and fees to prepare for and to participate in a lengthy arbitration hearing, will have to incur them again, and may not get the same result the second time around.

Link

A handling fee for a refund anticipation loan was a disguised finance charge, subject to the Truth-In-Lending Act.  Consumers need to be wary of these predatory loans.

 http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202585067603&People_v_JTH_Tax_Inc