Wrongful Foreclosure Is Difficult to Prove

In the recent decision in Citrus El Dorado, LLC v. Chicago Title Company, the California Court of Appeal held that while a beneficiary (lender) or trustee (bank or title company) under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the trustor (borrower) for wrongful foreclosure, a trustee has no duty to verify that the beneficiary received a valid assignment of the loan or to verify the authority of the person who signed a substitution of trustee.

In the Citrus El Doradocase, acommercial developer lost a parcel of real property in a trustee’s sale following a nonjudicial foreclosure. It sued Chicago Title Company because it acted as the trustee in conducting the sale. 

The Appellate Court concluded that the trustee in such a sale is subject to tort liability onlyfor the violation of duties established by the deed of trust and governing statutes, unless the trustee has effectively taken on a different or modified duty by its actions. 

According to Citrus’s complaint, it purchased the property—an unimproved 9.25-acre parcel in La Quinta, California—with the intention of developing it into a residential housing tract. Citrus entered into a Construction Loan Agreement with First Heritage Bank to fund the construction, and First Heritage was to disburse to Citrus a total of $13,394,000 in a series of incremental draws as construction of the development progressed, a standard provision. The loan was secured by a deed of trust on the property. 

After Citrus received some, but not all, of the loan funds, First Heritage failed and was placed into a Federal Deposit Insurance Corporation (FDIC) receivership. The FDIC funded several more draw requests by Citrus. Then the FDIC notified Citrus that the loan had been assigned to Stearns Bank (Stearns) and that disbursements to Citrus would be handled by Stearns. But when Citrus submitted a draw request to Stearns, it was denied, even though there was an unfunded balance of at least $609,000 in the budgeted loan funds for Citrus. 

Stearns then sent Citrus a Notice of Event of Default and Demand for Immediate Payment. The notice stated that payments required under the loan had not been made, constituting an immediate Event of Default with no rights to cure. The notice gave Citrus several weeks to remit the total payoff balance of over $13 million, including a principal balance of approximately $12.7 million. 

Chicago Title recorded a Substitution of Trustee, substituting Chicago Title as the new trustee under the deed of trust. The Substitution identified FNBN Rescon I, LLC (Rescon) as the present Beneficiary of the deed of trust, and it was executed by Stearns as Rescon’s exclusive servicing agent.

Chicago Title then recorded a Notice of Default and Election to Sell that stated there remained an unpaid principal balance on the loan of approximately $12.7 million, with a total balance due of over $20 million. 

Then Chicago Title issued a Notice of Trustee’s Sale, stating that the property would be sold at public auction on March 3, 2015. A Trustee’s Deed Upon Sale was recorded on March 6, 2015, and it indicated the public auction took place on March 5, 2015, and that Rescon was the highest bidder with a credit bid of $7.2 million. 

Citrus sued Chicago Title for wrongful foreclosure; wrongful disseisin and ouster; and conspiracy. Citrus’s wrongful foreclosure cause of action (like its other two causes of action) arose from allegations that Chicago Title: 

(1) was negligent in failing to verify that Rescon received a valid assignment of the loan; 

(2) was negligent in failing to verify the authority of the person who signed the substitution of trustee form; and 

(3) conducted the trustee’s sale improperly in various respects, including by selling the property by way of a private sale purportedly to Rescon, rather than by public auction as required by California Civil Codesection 2924g, and by accepting a purported credit bid that in fact amounted to giving the property to Rescon “literally . . . for free.” 

The Court of Appeal rejected the first two contentions because Chicago Title had no duty to make the inquiries Citrus asserted it should have made. The third contention failed to state a claim because it was not adequately supported by the facts. 

Wrongful foreclosure is a common law tort claim, and the elements of a cause of action are: 

(1) The trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; 

(2) the party attacking the sale (usually but not always the trustor, who is the borrower or mortgagor) was prejudiced or harmed; and 

(3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.

The third element is the most difficult for the borrower to establish because it requires a sufficient amount of money the borrower normally does not have, and it is a standard defense argument by the lender that is often effective in having the case dismissed.

A beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the borrower for wrongful foreclosure. Nevertheless, the trustee of a deed of trust is not a true trustee with fiduciary obligations, but acts merely as an agent for the borrower-trustor and lender-beneficiary. 

The trustee’s common agency for both the borrower and lender is a passive one, for the limited purpose of conducting a sale in the event of the borrower’s default or reconveying the property upon satisfaction of the debt. 

The rights and powers of trustees in nonjudicial foreclosure proceedings are strictly limited and defined by the contract of the parties and the statutes. The scope and nature of the trustee’s duties are exclusively defined by the deed of trust and the governing statutes. No other common law duties exist. The trustee’s only duties are: (1) upon default to undertake the steps necessary to foreclose the deed of trust; or (2) upon satisfaction of the secured debt to reconvey the deed of trust.

The trustee generally has no duty to take any action except on the express instruction of the parties or as expressly provided in the deed of trust and the applicable statutes.  

Applying these principles, the Appellate Court rejected Citrus’s arguments that Chicago Title had a duty to verify that the beneficiary received a valid assignment of the loan or to verify the authority of the person who signed the substitution of trustee. Such an inquiry was beyond the scope of the trustee’s duties as defined by the deed of trust and the applicable statutes, and there was no appropriate basis for imposing tort liability on Chicago Title for failing to take actions that were beyond the scope of its duties. 

To successfully challenge a foreclosure sale based on a procedural irregularity, the plaintiff must show that there was a failure to comply with the procedural requirements for the foreclosure sale, and that the irregularity prejudiced the plaintiff. 

Citrus alleged that the trustee’s sale of the property was noticed for March 3, 2015, but the property was not sold until March 5, 2015. Citrus further alleged that the property was, according to the trustee’s deed, sold to Rescon for a $7.2 million credit bid. 

But those facts, without more, did not support Citrus’s assertions that Chicago Title failed to properly declare the date, time, and place for the sale; that the sale was made by private sale, rather than public auction; or that the purported credit bid was essentially a fraud and in fact Chicago Title literally gave the property away to Rescon for free. 

Citrus needed facts showing that the postponement of the trustee’s sale was not performed in accordance with statutory requirements. It presented no facts showing that the sale was not conducted as a public auction, and it presented no facts showing that the credit bid made by Rescon was fraudulent or in any other way improper. 

Moreover, Citrus presented no facts demonstrating any prejudice flowing from the purported defects in the notice of default, or demonstrating that the defect impaired Citrus’s ability to protect its interest in the property.  Although Citrus complained it was never able to engage in any meaningful discussion with the lender concerning the notice of default, there were no facts that this failure to communicate was a result of any inaccuracies in the contact information in the notice of default. 

Although Citrus alleged that the notice of default stated a wrongfully inflated redemption figure, Citrus did not establish that it intended at any point to exercise its redemption rights, regardless of the amount. 

LESSONS:

1.         Proving wrongful foreclosure is difficult because the foreclosing trustee is typically compliant with the statutory requirements.

2.         The borrower must show that there was a failure to comply with the procedural requirements for the foreclosure sale, and that the irregularity prejudiced the plaintiff.

3.         Facts demonstrating at most mere technical violations of the foreclosure process, do not give rise to a tort claim against the foreclosing trustee.

A Valuable Exception to the Statute of Frauds

The California Statute of Frauds (Civil Code § 1624) can be a conclusive defense to a breach of oral contract claim because it can bar the claim regardless of its validity and support by evidence.  If the subject contract fails within the Statute, the agreement must be in writing and executed by the party to be charged or it is invalid, unless there is an exception.

In the recent decision of Zakk v. Vin Diesel, the actor's argument that the Statute barred the claim by producer George Zakk was rejected by the Appellate Court, in a decision that clarifies the application of the Statute to an agreement that by its terms is not to be performed within a year from the making thereof.

Zakk claimed he was entitled to be paid $275,000 as an executive producing fee, and receive an executive producer credit, for the sequel to the film entitled xXx,a film Zakk had worked on and developed.  Zakk sued Diesel, and his production company, for breach of an oral contract, and quantum meruit, among other causes of action. 

The trial court found that Zakk's claim for breach of an oral contract (and its derivative claims) was barred by the Statute, and the quantum meruit claim was barred by the statute of limitations.

Zakk ran Diesel's production company, One Race Films, from its inception, and he was responsible for developing projects and managing them to conclusion.  Zakk did not receive a salary, reimbursement for expenses, or any other compensation for his daily work. 

Instead, he claimed he had an oral and/or implied-in-fact agreement with Diesel and One Race Films which provided that for each motion picture in which (a) Diesel would star in and act in the capacity as producer in, and (b) Zakk helped develop and/or worked on while running the operations of One Race Films, including sequels based thereon, Zakk would, unless otherwise agreed, receive a fee that ranged from $250,000 to $275,000, and an executive producer or producer credit on screen and in promotional materials on a Most Favored Nation (MFN) basis with other executive producers or producers. 

Zakk's complaint alleged there was a considerable amount of precedent that evidences the oral and/or implied-in-fact agreement, and he listed six original films and one sequel for which he was paid and given executive producer or co-producer credit. 

The first film, Strays, was produced in 1997; the last original film listed, Find Me Guilty, was produced in 2006. The one sequel listed, Riddick (which was a sequel to the 2004 original film, The Chronicles of Riddick) was produced in 2013, and Zakk received an executive producer fee and credit for the sequel even though his relationship with Diesel and One Race had terminated in 2007. 

With regard to the film xXx, which was produced in 2002, the complaint alleged Zakk worked on and helped develop xXx. Accordingly, with respect to xXx and any sequel of xXx that would be starring and produced by Diesel, Zakkk alleged that One Race Films, and/or Revolution Studios (the production company) agreed to provide Zakk with an Executive Producer credit and $275,000 executive producing fee in exchange for his services.

Zakk alleged that by virtue of the services that Zakk provided in connection with xXx (i.e., working on the picture and helping to develop it), Zakk fully performed all of his obligations under the oral or implied-in-fact agreement that Zakk had with Diesel and One Race Films, thereby entitling Zakk to an Executive Producer credit and $275,000 producing fee.

Zakk alleged a cause of action for quantum meruit contending that defendants requested that Zakk perform services for their benefit in connection with the xXx film franchise and promised to pay Zakk the reasonable value of those services (which is alleged to be no less than $2 million), and that Zakk performed those services. 

Oral contracts that by there terms are not to be performed within one year fall within the Statute, but the promissee’s (in this case Zakk) full performance of all of his obligations under the contract takes the contract out of the Statute, and no further showing of estoppel is required.  In other words, Zakk’s allegation that he fully performed his obligations under the alleged oral contract was enough to avoid the Statute.

To the extent cases hold that avoidance of the Statute requires the promisee to satisfy the elements of estoppel (i.e., showing extraordinary services by the promisee or unjust enrichment by the promisor), they do not apply to the category of contracts not to be performed within a year. Where the contract is bilateral but has been fully performed by one party, the remaining promise is taken out of the Statute, and the party who performed may enforce it against the other.

Some cases required that the plaintiff must show more than full performance in order to avoid the Statute, and they involved oral contracts to make a will (or to devise property in a will) or contracts not to be performed during the lifetime of the promisor. Where an oral agreement to make or not to revoke a will is alleged after promisor is deceased and unable to testify, there is an opportunity for the fabrication of testimony concerning the existence of the agreement. Sound policy requires some form of written evidence that such an agreement actually exists.  The concern about fabrication of testimony is significantly lessened where all parties to the alleged contract are able to testify as to its existence or nonexistence, such as in the Zakk v. Diesel case. 

The statute of limitations on a cause of action for quantum meruit for personal services usually begins to run when those services or the relationship between the parties terminate, but that is not always the case. Where services are provided with the understanding that payment for those services will be made at some time after the termination of those services or upon some contingency, the statute of limitations does not begin to run until that time arrives or contingency occurs.  The statute of limitations does not begin to run against a claim until it matured and could be enforced, regardless of whether the time fixed was reasonable or unreasonable. 

Zakk alleged that defendants agreed to pay him the reasonable value of the services he performed “when the xXx Sequel was released.” He also alleged that the sequel was released “on or about January 20, 2017.” Therefore, the two-year statute of limitations on his quantum meruit cause of action did not begin to run until January 20, 2017, and the trial court erred in finding that his claim, filed on March 17, 2017, was time-barred.

LESSONS:

1.         Always get a contract in writing, and if you can't, keep detailed records of performance of the agreement.

2.         The statute of frauds is a powerful defense, but the promissee's performance of an oral agreement may be sufficient to avoid the bar of the statute of frauds, depending on the nature of the oral agreement and the evidence.

3.         The prior conduct of the parties may be treated as precedents, and can be valuable evidence supporting or defeating an oral contract claim.

4.         Where money is concerned, reliance on the promissor's good faith may be misplaced.

Partnership Decisions Require Majority Agreement

In the recent case of Jarvis v. Jarvis Partnership, Jarvis Properties was a limited partnership that owned a two parcels of land. Its two general partners, brothers Todd Jarvis and James Jarvis, each owned a 50 percent interest in the partnership, which is less than the majority consent required to act on behalf of the Partnership under California Corporations Code, § 15904.06(a). The general partners could not agree on what to do about the parcels, and their partnership agreement did not address the question of what occurs in the event of a decision-making deadlock. Therefore, they turned to the courts. 

James Jarvis filed actions for partition by sale of the parcels, naming Todd Jarvis and Jarvis Properties as defendants.Todd hired a lawyer to represent him in the partition actions, and he also hired a separate lawyer, William Roscoe, III, to represent the Partnership. 

James objected to having Roscoe represent the Partnership, and he filed a motion to disqualify Roscoe on the ground that Roscoe was not authorized to act by the requisite majority of the general partners. James was concerned that Roscoe was not acting in the best interests of the Partnership and would run up unnecessary litigation costs and deplete the partnership’s limited assets, to the detriment of the Partnership. 

James filed a motion to disqualify Roscoe from representing the Partnership because Roscoe lacked authority from a majority of the general partners to represent the Partnership. James stated that Todd selected Roscoe to represent the Partnership over his express objection, and that Roscoe had taken the position that his representation of the Partnership is to be directed solely by one general partner (Todd), and in direct contravention of the direction of the other equal general partner (James). 

Citing Corporations Code section 15904.06(a), James argued that because there was more than one general partner, Roscoe needed the authority of a majority of the general partners.

Under the California Uniform Limited Partnership Act of 2008 (ULPA), a limited partnership is an entity distinct from its partners.  A limited partnership has the powers to do all things necessary or convenient to carry on its activities, including the power to sue, be sued, and defend in its own name and to maintain an action against a partner for harm caused to the limited partnership by a breach of the partnership agreement or violation of a duty to the partnership.

Lack of clarity over who is authorized to oversee the engagement of the attorney for a partnership places the lawyer in a position where he or she cannot follow one partner’s instruction without violating the other partner’s instruction. It is not a conflict of interest, because the lawyer has only one client, the partnership. 

It is, instead, a conflict of authority within the partnership over who oversees and instructs the partnership’s lawyer. The lawyer’s duty of loyalty requires the lawyer to act at a client’s direction. A lawyer cannot act without the client’s authorization. Nor can the lawyer take over the decision making for a client absent authority to do so. 

The partnership agreement governs relations among the partners and between the partners and the partnership, and if the partnership agreement is silent, the ULPA governs such relations.  The motion to disqualify was based on section 15904.06(a), which is part of the ULPA. It provides that each general partner has equal rights in the management and conduct of the limited partnership’s activities. Except as expressly provided in this chapter, any matter relating to the activities of the limited partnership may be exclusively decided by the general partner or, if there is more than one general partner, by a majority of the general partners. 

The Appellate Court understood the term “majority” to mean more than 50 percent. Neither Todd nor James alone constituted a majority of the general partners sufficient to decide matters relating to the Partnership, including the selection of counsel and the conduct of the litigation. Thus, neither the partnership agreement nor the applicable UPLA statutes resolved the issue of whether Roscoe’s representation of the Partnership was authorized or lawful. 

The California Corporations Code provides a mechanism for breaking corporate deadlocks. When a corporation “has an even number of directors who are equally divided and cannot agree” on the management of corporate affairs so that the corporation’s “business can no longer be conducted to advantage” or there is “a danger that its property or business will be impaired or lost,” section 308(a), authorizes a court to appoint a “provisional director” to break the deadlock, regardless of the terms of the articles or the bylaws and whether or not an action for involuntary winding up or dissolution of the corporation is pending. An action for such appointment may be brought by any director or by the holders of not less than one third of the voting power in the corporation. The provisional director “acts as a ‘tiebreaker’ when a deadlock exists.

There are no comparable provisions in the ULPA that authorizes a court to appoint a provisional general partner in the case of a deadlocked limited partnership. 

In the Appellate Court's view, James raised legitimate points regarding Roscoe’s duty of loyalty, not as between multiple clients, but as to his representation of the Partnership. Since Todd selected Roscoe, was paying Roscoe, and was directing the litigation, there is the appearance that Roscoe may advance Todd’s interests over James’s interests, which may not necessarily be in the best interests of the Partnership.

The Appellate Court concluded the trial court did not err when it granted the motion to disqualify Roscoe as the attorney under the circumstances in that case.  

LESSONS:

1.  Always have a written partnership or co-ownership agreement when two or more persons own real property.

2.  The agreement should include terms regarding what occurs in the event of a decision-making deadlock by the owners/partners.

Elements of Prescriptive Easement

In the recent case of Ditzian v. Unger, the California Court of Appeal reviewed the trial court's granting of a prescriptive easement allowing Unger and his invitees (including Airbnb guests) to use a path ("Path") that runs along the parties' property line, and then crosses the land of Unger and another neighbor to access sand dunes in MacKerricher State Park in Mendocino County.  Unger erected a fence that blocked Ditzian's use of the Path to access the dunes, and Ditzian filed the lawsuit requesting a prescriptive easement to use the Path. The trial court’s judgment awarding the easement was affirmed by the Appellate Court for reasons that are applicable to many property boundary disputes.

Ditzian argued he had acquired a prescriptive easement through “open, notorious, continuous, and adverse” use of the path for “an uninterrupted period of five years” by Ditzian and the predecessor owners of Ditzian's property. 

Unger admitted the prior owners of the Ditzian property had accessed the state park dunes by using the Path.A son of the predecessor owners of Ditzian's land testified that when he visited his parents, he used the Path almost every day. Another prior owner testified that when she lived on the property (and during previous visits to the property), she used the Path several times a week, until Unger put up a fence. Previously, she had encountered no obstacles and had never been told she could not walk on the Path, either the part crossing Unger's land or the part crossing the other neighbor's parcel. 

Ditzian began hosting vacation renters at his property through Airbnb, and by the time of trial, 146 separate Airbnb reservations had been made. 

The trial court ruled that Ditzian had made the showing required to establish a prescriptive easement on the Path. Among other things, the court credited the testimony of the prior owner's son that he and his parents regularly traversed the Path dating as far back as 1998. Reflecting on a site visit to the property, the trial court observed that hiking out to the dunes is the greatest highlight of living on or visiting the property. Enjoyment of that natural resource is presumably why the parties bought the property in the first place, and it would be more startling and unexpected if no one ever bothered to hike out to the dunes on a regular basis. 

The court also observed the Path was “very evident” and “well-trodden,” and it was “obvious” the Path had long been used to access the dunes. The trial court rejected the contentions of Unger that the Airbnb rentals substantially increased the burden of the easement, or that the doctrine of unclean hands justified denial of the requested easement. 

The trial court entered judgment in favor of Ditzian, granting him “an easement along the pathway which originates on their land and traverses that of defendant along the boundary line between the two properties”, and the judgment specified that the easement extended to Ditzian, his personal invitees, and business invitees, but only while such business invitees are residing on the property.

Unger argued Ditzian should not have been granted an easement permitting the Airbnb guests to cross his land because the trial court erred in interpreting evidence of the Ditzian's own ‘personal’ use of the Path as proof establishing prescriptive rights for his paying guests. However, Unger had not demonstrated that allowing Airbnb guests to use the easement imposed a substantial increase or change of burden on Unger's land. The incremental increased burden was modest and consistent with the pattern formed by the adverse use by which the prescriptive easement was created.

Unger emphasized the potential for a large number of annualAirbnb visitors, but the court focused on whether the easement itself would have substantially increased use, and the issue was whether having other people residing on the property from time to time transformed the scope of the easement and the burden it imposed. 

The trial court did not abuse its discretion in declining to award Ditzian the easement on the basis of the unclean hands doctrine. The unclean hands rule does not call for denial of relief to a plaintiff guilty of any past improper conduct; it is only misconduct in the particular transaction or connected with the subject matter of the litigation that is a defense. The bar applies only if the inequitable conduct occurred in a transaction directly related to the matter before the court and affects the equitable relationship between the litigants. Because Ditzian's failure to obtain a permit before hosting Airbnb guests is not directly connected with the prescriptive easement claim, the trial court was upheld in rejecting the unclean hands defense. 

Finally, Unger argued the use of the Path was not adverse in light of the testimony that Ditzian's predecessors were granted permission to use a differentpath across the land. There is no authority that permission to use one path constitutes permission to use a different path, and Unger cited no evidence Ditzian was given permission to use the Path.Unger cited no evidence that hegave Ditzian or the previous owners permission to cross his property using the Path, or on any path. Moreover, Ditzian were not required to present evidence that he actually communicated his easement claim to Unger. 

Continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence, and in the absence of evidence of permissive use, a prescriptive easement may be granted. In other words, continuous use over a long period of time constitutes communication of the claim of right.

LESSONS:

1.         Owners of land in those circumstances that suggest ambiguity regarding the property line or use of property, regardless of the structures on the land such as fences or hedges, should consider hiring a surveyor to determine the legal boundaries.

2.         The essential element is "adverse use", and permission to use the disputed land can defeat a prescriptive easement claim.  It may be a better practice to expressly allow permission to use the disputed land in a written document termed a license, as such permission and license can then be withdrawn, and no prescriptive easement right may arise.

3.         Evidence of continuous use of a portion of land over a long period of time may constitute communication of a claim of right to use the land, and if the land's owner objects, he has a 5 year period before the use may ripen into a prescriptive easement.

4.         After the prescriptive easement was created, no barrier could be erected to prevent use of the easement by the claimant, or his invitees, including Airbnb guests.

5.         This case is another illustration of the importance of time in deciding disputed claims, and Unger should have inquired as to the use of the Path when he purchased his land.   He may have been able to obtain a reduced purchase price because of the presumptive existence of the prescriptive easement over the Path.

Including Late Fees May Render Eviction Notice Defective

In the recent decision of Del Monte Properties v. Dolan, the Superior Court's Appellate

Division ruled that late fees in a notice of eviction were invalid liquidated damages, 

thereby rendering the notice defective, and causing the defendant Tenant to prevail at the unlawful 

detainer trial.

In Del Monte, the 3-day notice to pay rent or quit demanded rent in the correct amount of$600, as 

well as a late fee in the amount of $50, for a total of $650. 

The notice was based on a lease that contained a fairly common provision for charges for late 

payments and returned checks, as follows:

"6. Late charge; returned checks:  

              

  A. Tenant acknowledges either late payment of Rent or issuance of a  returned check 

may cause Landlord to incur costs and expenses, the exact amount of which are 

extremely difficult and impractical to determine. These costs may include, but are not 

limited to, processing, enforcement and accounting expenses, and late charges imposed 

on Landlord.  If any installment of Rent due from Tenant is not received by Landlord 

within 5 calendar days after the date due, or if a check is returned, Tenant shall pay to 

Landlord, respectively, an additional sum of $50.00 as a Late Charge and $25.00 as a 

NSF fee for the first returned check and $35.00 as a NSF fee for each additional returned check, 

either or both of which shall be deemed additional Rent.            

  

 B. Landlord and Tenant agree that these charges represent a fair and reasonable estimateof the costs Landlord may incur by reason of Tenant’s late or NSF payment. Any Late 

Charge or NSF fee due shall be paid with the current installment of Rent."       

At the unlawful detainer trial, witnesses testified about the late fee, and the court found infavor of the Landlord. It ordered the lease forfeited, awarded possession of the premises 

to the Landlord, awarded damages for “past-due rent” of $650, and holdover damages of $140, for a 

total judgment of $790.  

On appeal, the Tenant argued:

1. The 3-day notice cannot support a judgment for unlawful detainer because it contained a demand 

for an invalid late fee which is prohibited by California Civil Code §1671; and

2. The late fee cannot be justified as liquidated damages because the losses caused by latepayment of rent were not extremely difficult or impractical to determine, and Landlord 

failed to show that the amount of liquidated damages charged were the result of a 

reasonable endeavor to approximate those losses.                                        

In considering the first argument, the Appellate Court considered late fees as liquidated 

damages, and recognized that the proponent of a liquidated damages provision in a 

residential lease bears the burden of proving its validity under Civil Code §1671. 

While presumptively invalid, liquidated damages may be imposed when, from the 

nature of the case, it would be impracticable or extremely difficult to fix the actual 

damage caused by a breach. (Civil  Code §1671(d).) 

The parties may agree upon an amount that shall be presumed to be the amount of 

damage sustained by a breach. (Civil Code §1671(d).)        

However, Courts will look beyond the language of the contract to determine the actual  

circumstances of a liquidated damages clause.  The parties agreement to an invalid 

liquidated damages clause does not insulate it from attack under Civil Code §1671. 

The losses caused by the late payment of residential rent are limited to interest and 

administrative costs of collecting and accounting for the late rent. Landlord failed to 

prove that the actual losses caused by late payment of rent were extremely difficult or 

impracticable to determine. Moreover, an agreement of the parties to the term setting the amount is 

not enough. 

At trial, Landlord testified about the types of losses caused by late payment of rent, but 

it was little more than a reference to the language of the lease. Landlord did not 

articulate specific facts showing why the  circumstances of this case justify liquidated 

damages to compensate losses caused by late payment. 

Because Landlord failed to meet its burden to show that the losses caused by late 

payment of rent were extremely difficult or impracticable to determine, liquidated 

damages were not justified under Civil Code §1671.     

As a separate and independent basis for finding the eviction notice defective, Landlord 

failed to meet its burden to show that the late fee was the result of a reasonable endeavor 

to approximate actual losses caused by late payment of rent. 

To be valid under Civil  Code §1671, a liquidated damages clause must be the result of a reasonable 

endeavor to approximate actual losses caused by the breach that is being 

compensated. Setting the liquidated damages to a percentage of the contract price 

demonstrates a purpose other than compensating losses. Some analysis of actual losses is required 

prior to setting the amount. Post-hoc rationalization will be rejected. 

Landlord did not show the late fee passes the reasonable endeavor test. First, Landlord

admitted at trial that the $50 late fee was set at a percentage of the contract price. 

Second, Landlord admitted at trial that Landlord never attempted to calculate 

the amount of losses caused by the late payment of rent. If no effort was made to estimate the actual 

losses, then the resulting fee cannot approximate the losses. 

A 3-day notice that overstates the amount of rent owed does not support an unlawful 

detainer, and is fatal to an unlawful detainer complaint.  The notice upon which the complaint was 

based was defective because it included an invalid late fee, and it can not 

support a judgment for unlawful detainer.

Therefore, the Tenant won round one of the dispute because of the late fee of $50 in the 

3-day notice.

LESSONS:

1. A provision in a residential lease for charging late fees will be given careful 

consideration by the Court, and it may be prudent to limit the claim for damages in a 

3-day notice to the unpaid rent.

2. If a party insists on requesting late fees, it may be necessary to articulate specific facts showing 

why the circumstances of the case justify liquidated damages to compensate for losses caused by the 

late payment.

3. The Landlord should not lose sight of the main goal of an unlawful detainer action 

which is to restore possession to the Landlord, and including a demand for insignificant 

late fees in the 3-day notice is an unnecessary risk to the entire case.

4. A Tenant may be able to defeat the Landlord at trial if the 3-day notice was defective

by including a late fee claim that cannot be supported, but as the Landlord can re-file 

the action based upon a corrected notice, a Tenant may benefit more by raising the issue 

to make a settlement.

Become Arbitration Savvy

 Every time you are presented with a contract, the arbitration provision should be given careful attention so you will understand the nature of the dispute resolution method mandated by the contract.

Some of the documents that contain arbitration provisions, or do not, are summarized herein so the nature of such provisions are more familiar before the contracts are executed. Many of the documents are California Association of Realtor forms, as indicated by the reference to "C.A.R. Form."

California Residential Property Agreement (C.A.R. Form RPA-CA).  In this standard offer to purchase real property, agreeing to arbitration is an option, and its provisions must be specifically agreed to by initialing by both parties.  It provides that any dispute or claim in law or equity arising between the parties out of the agreement or any resulting transaction, shall be decided by neutral, binding arbitration.  The parties have a right to discovery.  It does not specify the arbitration provider, but it requires the arbitrator to be a retired judge or justice, or an attorney with at least 5 years of residential real estate law experience, unless the parties agree to a different arbitrator.

An unlawful detainer action or actions in small claims, probate, or bankruptcy courts,  are an exception to the provision.  Filing a lawsuit to preserve a statute of limitations, or to enable the recording of a notice of pendency of action (lis pendens), such as a complaint by a buyer for specific performance of the RPA-CA, are also exceptions to both the mediation and arbitration provisions.

Many other contracts in the real estate field require arbitration, and it is often not an option, unless it is stricken from the contract by mutual agreement.

The Southland Regional Association of Realtors (SRAR) provides a procedure for making arbitration requests, and the current filing fee is $500.  The hourly fee for the arbitrator is additional to the filing fee. The statute of limitation imposed by the SRAR is 180 days after the close of escrow, and it encourages the parties to first attempt to resolve the dispute by mediation.

California Exclusive Listing Agreement (C.A.R. Form RLA).  Arbitration is not included, and mediation is required to be attempted and accepted, or the right to recover attorney's fees may be barred.  It only provides an ADVISORY, that if the parties agree to resolve their disputes by arbitration, they can document their agreement by attaching and signing a separate Arbitration Agreement. (C.A.R. Form ARB)

Buyer Representation Agreement - Exclusive (C.A.R. Form BRE).   The provisions for mediation and advisory regarding arbitration are the same as the RLA.

Residential Lease or Month-to-Month Rental Agreement (C.A.R. Form LR).  Requires that mediation is attempted and accepted to preserve right to recover attorney's fees, except for an unlawful detainer action.  No reference to arbitration.

Commercial Lease Agreement (C.A.R. Form CL).  After mediation is attempted or fails to resolve the dispute, arbitration is an option, similar to the RPA-CA.

California Arbitration Agreement (C.A.R. Form ARB).   Provides that any dispute or claim in law or equity arising, or having arisen, between the parties out of the Purchase Agreement, Listing Agreement, Buyer Representation Agreement, or Other agreement, or any resulting transaction, that is not settled through mediation, shall be decided by neutral, binding arbitration.  The arbitrator shall be a retired judge or justice, or attorney with at least 5 years of transactional law experience, unless the parties agree otherwise.  No reference to who pays the arbitration fees.

Home Warranty Contracts.   The arbitration provision for one company confirms that the entry into the contract constitutes an agreement that all disputes involving the company, or that arise out of actions that the company took, or did not take, "shall be arbitrated", as long as the claim is in excess of the applicable small claims court jurisdictional amount, which is $10,000 or less in California.   

The provision confirms the buyer is:

  a.  giving up the right to a jury trial,

  b. giving up the right to participate in any class action (a legal action by multiple parties in a similar position),

  c.  giving up the right to a private attorney general action, 

  d.  giving up the right to participate in any other representative or consolidated action, and

  e.  giving up the right to participate in any class arbitration or consolidated arbitration proceeding.

Unless a claim is filed in small claims court, the home warranty contract requires final and binding arbitration held in the county of the covered property (or other location mutually agreed upon by the parties.  The arbitration must be conducted by the American Arbitration Association (AAA) under its rules for consumer disputes.  The company will pay the initial filing fee if the customer cannot afford to pay the fee, or will reimburse the customer, unless the arbitrator determines the claim is frivolous.  The contract requires the parties to agree that the contract and arbitration provision is governed by the Federal Arbitration Act.

A similar home warranty contract by a different company, confirms that any arbitration must take place on an "individual basis", and the parties agree that they are waiving any right to a jury trial.  It provides that the parties agree that the arbitrator lacks the power to consider claims for injunctive or declaratory relief, or to grant relief affecting anyone other than the individual claimant.  It provides that the arbitration is governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the AAA. It applies to all disputes and claims between the parties, including claims that arose prior to the purchase of the contract. The company will pay all AAA filing, administrative and arbitrator fees for any arbitration it initiates, and for any arbitration initiated for which the value of the claims is $75,000 or less, unless the arbitrator determines the claims are brought in "bad faith or for an improper purpose", in which case the AAA rules govern the payment of AAA fees.

A similar home warranty contract by a third company states that any arbitration must be conducted in the city nearest to the property covered by the contract having an AAA regional office.  Each party shall bear its own costs and expenses and equal share of the administrative and arbitrator's fees of arbitration. 

LESSONS:

1.         Determine whether arbitration is optional or mandatory, and if optional, consider not agreeing to arbitration to preserve right to file Superior Court action.

2.         Arbitration results in waiver of jury trial, appeal, and injunctive relief.

3.         Arbitration may be required with a specified provider, such as the AAA, and its rules and the Federal Arbitration Act may govern the proceeding.

4.         Arbitration fees and costs may be paid by one of the parties, such as a home warranty company, or may be shared by the parties, subject to the arbitrator's findings in the action.

5.         Arbitration is often not required for small court claims for $10,000 or less, or for unlawful detainer, in order to preserve a statute of limitations or to record a notice of pendency of action.

California's Fraudulent Transfer Act Applies to Premarital Agreements

In the recent case of Sturm v. Moyer, the California Court of Appeal resolved a question of first impression: Assuming fraudulent intent, can the Uniform Voidable Transactions Act (Civ. Code, § 3439 et seq., formerly known as the Uniform Fraudulent Transfer Act ("Act")) apply to a premarital agreement in which the prospective spouses agreed that upon marriage, each spouse’s earnings, income, and other property acquired during marriage will be that spouse’s separate property? 

In deciding that the Act applies to a premarital agreement, the Court of Appeal reviewed the relevant portions of the Act, and disclosed that it had not found any case from any court in any community property jurisdiction that had addressed this issue. 

Sturm had obtained a $600,000 judgment against Moyer, and he conducted several judgment debtor examinations of Moyer, during which Moyer claimed to have no assets, and claimed that he did not intend to work ever again so he would not have to pay any portion of the judgment.  During a judgment debtor examination, Sturm discovered that Moyer had married Jessica Schell after the judgment, and that they had entered into a premarital agreement. 

The premarital agreement provided that each party’s earnings and income, and any property acquired during the marriage by each spouse, would be that spouse’s separate property; each party acknowledged that these earnings, income, and property otherwise would be community property.  Sturm argued that Moyer was trying to shield Schell's assets and earnings from the judgment.

Sturm filed a lawsuit against defendants Moyer and Schell, asserting a single cause of action under the Act to set aside the alleged transfer of Moyer’s community property interest in Schell’s earnings and income, and attempt to have Sturm's earnings and income and assets subject to the Sturm judgment.

Sturm alleged that the Moyer-Schell premarital agreement effected a transfer of Moyer’s interest in community property (i.e., Schell’s earnings and income), and that the actual intent of this transfer was to hinder, delay, or defraud Moyer’s creditors, including Sturm. 

At the time of the events at issue in this lawsuit, the Act provided that a transfer made or obligation incurred by a debtor is "fraudulent" as to a creditor, if the debtor made the transfer or incurred the obligation with actual intent to hinder, delay, or defraud any creditor of the debtor.The current version of the Act replaces “fraudulent” with “voidable.” 

Under California law, all property (with some statutory exceptions) acquired by a married person while domiciled in California is community property (Fam. Code, § 760), and each spouse’s respective interests in community property “are present, existing, and equal” during the marriage (Fam. Code, § 751). However, the Family Code allows an agreement entered into during or beforethe marriage to change the character of the property acquired during marriage from community property to separate property. 

Such an agreement may be made during the marriage under Family Code section 850, and is termed a post-nuptial agreement. Married persons may by agreement or transfer, with or without consideration, do any of the following: 

            (a) Transmute community property to separate property of either spouse. 

            (b) Transmute separate property of either spouse to community property. 

            (c) Transmute separate property of one spouse to separate property of the other spouse.  

A transmutation during marriage is subject to the laws governing fraudulent transfers. 

The characterization of property as separate or community is important when it comes to liability for debts incurred by either spouse, including debts incurred by a spouse before the marriage. Family Code section 910 provides that the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property, and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.

Although a married couple’s community property is liable for the premarital debts of either spouse, a portion of that community property -- the non-debtor-spouse’s earnings and income -- is shielded from liability for that premarital debt to the extent that those earnings and income are held in an account to which the debtor-spouse does not have access and are not commingled. 

Resolution of the issue of whether the Act applies to premarital agreements turns on two key questions.  

First, does such an agreement effect a “transfer” under the Act?  A "transfer” under the Act has a broad meaning. It includes every mode, direct or indirect, absolute or conditional, of disposing of or parting with an asset or an interest in an asset. Under this definition, there is no doubt that an agreement made during marriage in which a debtor-spouse agrees that the non-debtor-spouse’s future earnings, income, or assets would be the non-debtor-spouse’s separate property constitutes a transfer.  This question is one of law to be decided by the court.

Second, was the agreement intended to “hinder, delay, or defraud any creditor” of the debtor-spouse? This question is one of fact to be decided based on evidence at trial. 

But what if the agreement is made in a premarital agreement?  Because the parties are not married when the agreement is entered into, the debtor-spouse has no present and existing interest in the community property represented by the non-debtor-spouse’s future earnings, income, and assets. Thus, no transfer takes place because, by the premarital agreement, the spouses altered the applicability of the community property laws such that neither spouse obtains any interest in community property upon marriage. 

On the other hand, the premarital agreement does not become effective until marriage, at which point two things happen -- (1) each spouse obtains a present interest in community property by operation of law and then, (2) by the premarital agreement, each spouse transfers to the other his or her community interest in the other’s earnings, income, or other property.  So the premarital agreement only triggers the transfer of property during the marriage.

Although not conclusive, the court of appeal found that the legislative history of the Act and the relevant provisions of the Family Code, suggest that the Act applies to premarital agreements. On the whole, public policy considerations favor the interpretation asserted by Sturm.

The decision that the Act can apply to a premarital agreement does not mean that it necessarily will apply to invalidate an agreement. Whether the Act applies in any case depends upon whether there was actual or constructive fraud under Civil Code section 3439.04. That issue is a factual one, and is decided by the evidence at trial. 

LESSONS:

1.         The Uniform Voidable Transactions Act is a powerful tool to protect creditors in obtaining recovery of the debt owed, and even a premarital agreement may be subject to its remedies.

2.         Premarital and post-nuptial agreements can be useful instruments to determine earnings, income and assets during marriage, and confirm if they are separate or community property.