On July 7, 2011 Governor Brown approved Senate Bill 221. This Bill increases the small claims court jurisdiction to $10,000, except as specified in the Bill.
SB 221 does not state expressly when it will become effective. Currently, the jurisdictional limit for small claims matters brought by natural persons (not corporations or similar entities) is $7,500 and $5,000 for entities. Other limitations on the number and type of matters that may be filed exist, which should be considered by reviewing applicable law. County court websites are a good place to start, as is your local law library.
Small claims court is generally a good venue to have disputes resolved without resort to more expensive and time consuming litigation frequently inherent in general civil actions. This Bill may help sole-proprietorships who can sue as a natural person and other individuals, to have a greater range of disputes resolved in small claims court.
As always, it is advisable to contact an attorney to discuss how any law may apply to any particular situation or business issue/contract.
Wednesday, November 30, 2011
Thursday, September 15, 2011
One Year Anniversary for Bustarde Law!
On September 13, 2010 Bustarde Law opened its doors. I want to thank my clients and colleagues for their support of my practice. It has allowed me to help people reach their legal/business goals. I look forward to many more years of helping individuals and small businesses.
Please call or email me to discuss your legal matter. I focus my practice on small/medium sized business transactions and disputes, contracts/transactional issues, and real property matters, like landlord tenant/unlawful detainers (evictions) and property purchase issues.
With best regards,
- Darwin
Please call or email me to discuss your legal matter. I focus my practice on small/medium sized business transactions and disputes, contracts/transactional issues, and real property matters, like landlord tenant/unlawful detainers (evictions) and property purchase issues.
With best regards,
- Darwin
Friday, July 29, 2011
Indemnification clauses, what type do you have?
Indemnification clauses in contracts are common. An indemnification clause basically requires one party to indemnify another, i.e. to pay for a loss suffered by another pursuant to some event or condition. There are three basic types of indemnification clauses, which were conveniently described in McCrary Construction Co. v. Metal Deck Specialists, 133 Cal. App. 4th 1528:
"Some California cases have interpreted express indemnity provisions by reference to a classification system described in MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal. App. 3d 413 [105 Cal. Rptr. 725] [***14] (MacDonald & Kruse). According to MacDonald & Kruse, the first type of indemnity provision (type I) “provides ‘expressly and unequivocally’ that the indemnitor is to indemnify the indemnitee for, among other things, the negligence of the indemnitee,” and the indemnitee is indemnified whether its liability arises from its sole or concurrent negligence. (Id. at p. 419.) Under the second type of indemnity clause, the indemnitee would be indemnified for his or her own passive negligence but not for active negligence.
[...]
The third type of indemnity clause “is that which provides that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities caused by the indemnitor, but which does not provide that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities that were caused by other than the indemnitor. Under this type of provision, any negligence on the part of the indemnitee, either active or passive, will bar indemnification against the indemnitor irrespective of whether the indemnitor may also have been a cause of the indemnitee's liability.” (MacDonald & Kruse, at p. 420.)"
Generally speaking if you are the potential indemnitee, the party to whom payment would be made, you want a Type I provision if allowed. Certain types of contracts or relationships preclude the availability of Type I provisions, you should speak to a properly licensed attorney or perform your own original research to determine what limitations there may be.
Conversely, if you are the person who would have to pay up, then you would want to limit the instances when you would have to do so by having a Type II or III, or no indemnity provision at all.
If you find yourself needing to interpret, draft or negotiate over an indemnity provision you should consult with an attorney or perform your own original research. Otherwise, you might be stuck with an indemnification provision that does not have the effect that you thought. Read this post by clicking here about a situation where a party believed it had a Type I provision but a court found otherwise.
"Some California cases have interpreted express indemnity provisions by reference to a classification system described in MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal. App. 3d 413 [105 Cal. Rptr. 725] [***14] (MacDonald & Kruse). According to MacDonald & Kruse, the first type of indemnity provision (type I) “provides ‘expressly and unequivocally’ that the indemnitor is to indemnify the indemnitee for, among other things, the negligence of the indemnitee,” and the indemnitee is indemnified whether its liability arises from its sole or concurrent negligence. (Id. at p. 419.) Under the second type of indemnity clause, the indemnitee would be indemnified for his or her own passive negligence but not for active negligence.
[...]
The third type of indemnity clause “is that which provides that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities caused by the indemnitor, but which does not provide that the indemnitor is to indemnify the indemnitee for the indemnitee's liabilities that were caused by other than the indemnitor. Under this type of provision, any negligence on the part of the indemnitee, either active or passive, will bar indemnification against the indemnitor irrespective of whether the indemnitor may also have been a cause of the indemnitee's liability.” (MacDonald & Kruse, at p. 420.)"
Generally speaking if you are the potential indemnitee, the party to whom payment would be made, you want a Type I provision if allowed. Certain types of contracts or relationships preclude the availability of Type I provisions, you should speak to a properly licensed attorney or perform your own original research to determine what limitations there may be.
Conversely, if you are the person who would have to pay up, then you would want to limit the instances when you would have to do so by having a Type II or III, or no indemnity provision at all.
If you find yourself needing to interpret, draft or negotiate over an indemnity provision you should consult with an attorney or perform your own original research. Otherwise, you might be stuck with an indemnification provision that does not have the effect that you thought. Read this post by clicking here about a situation where a party believed it had a Type I provision but a court found otherwise.
Thursday, July 28, 2011
Suing a public agency requires submission of a pre-lawsuit claim.
The Government Claims Act (previously the Tort Claims Act) requires that claims for money damages against local public agencies shall be presented to the public agency before a lawsuit is filed. There are exceptions to this rule and certain types of claims, and claims against certain types of agencies have their own specific claim procedures. (Government Code section 900 et seq.) For example, claims based on federal law are likely excluded from the claim prerequisite.
The purpose of the claims procedure is to allow public agencies an opportunity to analyze and resolve claims before resort to litigation. If the public agency rejects the claim the public agency will likely notify the claimant of that fact and the claimant will then have the choice whether to proceed and file a formal lawsuit.
If a pre-lawsuit claim is not presented when required then a subsequent lawsuit may be tossed by the court for failure to comply with the claim procedures.
The primary lesson here is to be diligent about your rights and remedies. Contact a properly licensed attorney to discuss your legal matters and take advantage of available legal resources like your local law library to educate yourself regarding your matter. Click here for San Diego County Law Library's website.
The purpose of the claims procedure is to allow public agencies an opportunity to analyze and resolve claims before resort to litigation. If the public agency rejects the claim the public agency will likely notify the claimant of that fact and the claimant will then have the choice whether to proceed and file a formal lawsuit.
If a pre-lawsuit claim is not presented when required then a subsequent lawsuit may be tossed by the court for failure to comply with the claim procedures.
The primary lesson here is to be diligent about your rights and remedies. Contact a properly licensed attorney to discuss your legal matters and take advantage of available legal resources like your local law library to educate yourself regarding your matter. Click here for San Diego County Law Library's website.
Thursday, June 23, 2011
Bustarde Law Now Accepts Credit Cards
I am pleased to announce that we now accept Visa, MasterCard and Discover for payments on invoices. Adding these alternative methods of payment will allow Bustarde Law to help more individuals and small businesses. Feel free to contact my office for a free initial consultation. Thank you.
Monday, June 6, 2011
Know your rights! A Claim for Breach of Contract or Restitution Can Survive a Court Ordered Eviction
This past May the Fourth District Court of Appeal was presented with a case where a commercial tenant was properly evicted by a landlord but still could validly claim that the landlord breached a lease agreement in doing so. (Munoz v. MacMillan DJDAR 6902, filed May 13, 2011) The landlord brought an unlawful detainer action against the tenant. The landlord won at the trial court level and obtained a valid writ of possession (order to evict) and did evict the tenant. The tenant appealed the underlying judgment and won.
The tenant then brought an action for breach of contract against the landlord. The landlord defended against the claim by asserting that: "Plaintiff has no valid claim or cause of action as there was no impermissible eviction of Plaintiff and no breach of contract as Plaintiff’s tenancy terminated pursuant to a valid court order and as Defendant at all times proceeded lawfully to court judgment."
In other words, the landlord argued that since the eviction was lawful and did not amount to self-help that the tenant was precluded from holding landlord liable for the eviction. Current law provides: "A landlord evicting a tenant pursuant to a writ of possession cannot be held liable 'for damages under the principles governing actions for forcible entry and detainer,' even if the writ of possession is subsequently deemed invalid because there was no judgment in the unlawful detainer action granting landlord a right to possession".
However, the Fourth District held that even though the tenant could not hold the landlord liable for a wrongful eviction claim, the tenant could still validly allege that the eviction was a breach of contract/lease, the Appellate Court further held that the tenant could also seek recovery under the doctrine of restitution.
The lesson to be learned is that a judgment in an unlawful detainer action is not necessarily the end of the matter. If you are a landlord evicting a tenant you should inform yourself of your rights and liabilities so that you are not surprised with a later lawsuit following the eviction of a tenant. Conversely, if you are a tenant you may have more rights than you think; even if you believe an eviction was proper.
Bustarde Law can consult with you regarding your lease and applicable law and inform you of your rights.
The landlord did not engage in improper self-help and evicted the tenant under a properly issued writ of possession (order to evict).
The tenant then brought an action for breach of contract against the landlord. The landlord defended against the claim by asserting that: "Plaintiff has no valid claim or cause of action as there was no impermissible eviction of Plaintiff and no breach of contract as Plaintiff’s tenancy terminated pursuant to a valid court order and as Defendant at all times proceeded lawfully to court judgment."
In other words, the landlord argued that since the eviction was lawful and did not amount to self-help that the tenant was precluded from holding landlord liable for the eviction. Current law provides: "A landlord evicting a tenant pursuant to a writ of possession cannot be held liable 'for damages under the principles governing actions for forcible entry and detainer,' even if the writ of possession is subsequently deemed invalid because there was no judgment in the unlawful detainer action granting landlord a right to possession".
However, the Fourth District held that even though the tenant could not hold the landlord liable for a wrongful eviction claim, the tenant could still validly allege that the eviction was a breach of contract/lease, the Appellate Court further held that the tenant could also seek recovery under the doctrine of restitution.
The lesson to be learned is that a judgment in an unlawful detainer action is not necessarily the end of the matter. If you are a landlord evicting a tenant you should inform yourself of your rights and liabilities so that you are not surprised with a later lawsuit following the eviction of a tenant. Conversely, if you are a tenant you may have more rights than you think; even if you believe an eviction was proper.
Bustarde Law can consult with you regarding your lease and applicable law and inform you of your rights.
The landlord did not engage in improper self-help and evicted the tenant under a properly issued writ of possession (order to evict).
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