• Appellate Procedure,  Contracts,  Standard of Review,  Statutory Construction

    What Constitutes Extrinsic Evidence that Changes the Standard of Review?

    Well-established, seemingly clear principles like contract interpretation being a matter of law (absent ambiguity requiring extrinsic evidence to resolve), and de novo review of legal questions aren’t always so clear in practice. California National Bank v. Woodbridge Plaza, LLC, case no. G038623 (4th Dist. May 30, 2008, ordered published June 20, 2008) is a case in point. At issue was the meaning of a lease provision that determined the maximum rent for the extended term. The landlord, who prevailed at the bench trial, contended that the court’s interpretation of the lease was governed by substantial evidence review because there was conflicting opinion testimony on the meaning of the lease provision.…

  • Contracts

    Contract Claims against Public Entities are Governed by Claims Statutes

    In City of Stockton v. Superior Court (Civic Partners Stockton, LLC), case no. S139237 (Dec. 3, 2007), the Supreme Court holds that a claim for breach of contract against a public entity is subject to the claims presentation requirements of the Government Code.  (Govt. Code, §§ 905, 945.4.)  And to help keep people from losing sight of that holding, the court endorses “Government Claims Act” as the shorthand name for the claims statutes in place of the commonly used, and traditional, “Tort Claims Act.”

  • Appellate Procedure,  California Procedure,  Contracts,  Real Estate,  Standard of Review

    Beware the Statute of Frauds

    As I think many lawyers are, I am constantly amazed at the relationships people are willing to enter into on little more than a handshake.  As every first-year law student knows, the Statute of Frauds can prevent the enforcement of a certain contracts not in writing, and in Elias Real Estate, LLC v. Tseng, case no. B192857 (2d Dist. Oct. 25, 2007), it rears its ugly head and gives us a rare example of reversal due (in part) to insufficiency of the evidence. If your looking for a company you can trust then I highly recommend Mission real estate. The four defendant Tseng brothers own some real property as tenants…

  • Attorney Fees,  Contracts,  Post-Trial Practice

    The Pro Bono Road to Riches!

    Don’t be shy about asking for attorneys fees. Don’t be shy to ask for more than 100 times the suggested schedule in the local rules. Don’t be shy to ask for an amount that far exceeds the amount of damages awarded to your client. Don’t be shy about anything, including the fact that you’re asking for several hundred thousand dollars in fees for a case you took on pro bono. Had O’Melveny and Myers been more forward, they might have received more than the roughly $124,000 in fees approved by the trial court and affirmed by the Court of Appeal in Cruz v. Ayromloo, case no. B190959 (2d Dist. Oct.…

  • Contracts,  Juries

    Mercedes-Benz Asks for a Low Standard for Assessing the Merchantability of an Automobile

    Click on the “Only Mercedes-Benz” link on the home page of the Mercedes-Benz USA website, and you are presented with a new page with the following title:  Leadership 120 years later, the legend continues. So I find it rather funny that in Isip v. Mercedes-Benz USA, LLC, case no. B192382 (2d Dist. Sept. 12, 2007), Mercedes-Benz requested the court to instruct the jury that the warranty of merchantability is not breached so long as a vehicle gets you from place to place in one piece.  Isip contended she experienced the following problems with her car: The air-conditioning emitted an offensive smell every time it was turned on, giving Isip a…

  • ADR,  Arbitration,  Contracts

    Arbitration Agreement May Be Invoked by Non-Parties Sued as Alter Egos of a Party to the Agreement

    A contract contains an arbitration provision.  Plaintiff sues you on the contract, even though you are not a party, on the ground that you are an alter ego of the corporation that is a party to the agreement.  Can you invoke the arbitration provision even though you are not a party to the contract? Yes, says the Court of Appeal in Rowe v. Exline, case no.A116463 (1st Dist. July 31, 2007).  After all, reasons the court, the whole theory behind alter ego liability is that the corporation and the alter ego are one in the same.  Since the corporate party is entitled to the benefit of the provision, so must…

  • Attorney Fees,  California Court of Appeal,  Contracts,  Post-Trial Practice

    Third Party Beneficiary to Contract May Invoke Attorney Fee Provision

    A few days ago, in my post “Of Walnut Trees and Attorney Fees,” I took issue with the Third District Court of Appeal’s holding that a party suing on a contract that it alleges does not include an attorney fee provision is not entitled to recover attorney fees notwithstanding that the defendant alleges that additional written terms of the contract contain an attorney fee provision.  Yesterday, a different panel of the Third District Court of Appeal and I agree on the attorney fee issue in Laduca v. Polyzos, case no. C050757 (July 16, 2007).  The issue is whether the property owner, as a third party beneficiary of the contract between…

  • California Procedure,  California Supreme Court,  Contracts,  Jurisdiction

    Confusing Jurisdiction with Forum Selection

    It’s common to see forum selection clauses in contracts.  It’s also common to see such clauses purport to limit “jurisdiction” to the courts of a given state or even a specific county within the state. Nice try.  No matter the skill of the lawyers, parties simply cannot strip a court of subject matter jurisdiction by private agreement, as we are reminded by the Third District Court of Appeal in Miller-Leigh, LLC v. Henson, case no. C051652 (June 28, 2007).  The parties to a lease guaranty for leased property in Arizona included a provision stating that the guaranty was governed by Arizona law and that “Arizona is the proper jurisdiction for…

  • ADR,  Arbitration,  Consumers,  Contracts,  Labor & Employment,  Legal Writing

    Great Lawyers Can Write Unenforceable Arbitration Agreements

    I’m beginning to wonder if writing the perfect arbitration provision is something like understanding the rule against perpetuities. You all remember that case from torts class, don’t you? The court holds that an attorney can’t be liable for malpractice related to the rule against perpetuities because no one understands the rule against perpetuities. Hence, the attorney could not have violated the standard of care. A little over a month ago, the Ninth Circuit ruled in Davis v. O’Melveny & Myers, case no. 04-56039 (9th Cir. May 14, 2007) that the arbitration provision in the employment contract of a prominent, powerful L.A.-based law firm was unenforceable. Not just unenforceable, but “shock…