Tort Claims Against an Alter Ego May Be Considered an Action “On a Contract” for the Purposes of an Attorneys’ Fees Award under California Civil Code section 1717

By: Tony Carucci California Civil Code section 1717 entitles the prevailing party to attorneys’ fees “n any action on a contract,” where the contract provides for an award of attorneys’ fees to the prevailing party, regardless of whether the prevailing … Continue reading

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Does a Broker Forfeit His or Her Commission for Technical Non-Compliance with Department of Real Estate Statutory Requirements?

By: Kevin J. Parker In a recent Arizona Court of Appeals case, CK Revocable Trust v. My Home Group Real Estate LLC, 2020 WL 4306183 (7/28/2020), the Court of Appeals addressed the distinction between “substantive” and “technical” statutory requirements for … Continue reading

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Arizona Governor Ducey’s Executive Order on Residential Eviction Actions

By:  Bob Henry As part of the State of Arizona’s response to the current public health crisis, on March 24, 2020, Arizona Governor Ducey issued Executive Order 2020-14, titled “Postponement of Eviction Actions.” A copy of the Executive Order is … Continue reading

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Airbnb Declares End to Party!

By Patrick Paul As municipalities around the country evaluate changes to their respective codes in an effort to exert greater control over bad actors in the vacation rental market, Airbnb announced on November 2nd that it is banning party houses.  … Continue reading

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Short-Term Rental Legislation & Litigation On the Way!

The advent of the shared economy in the real estate context has provided homeowners and investors alike with expanded opportunities to generate revenue from the use of their real estate. Airbnb and VRBO are two of the most popular companies … Continue reading

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CCP 998 Does Not Confer an Independent Right to Attorneys’ Fees

By: Tony Carucci A so-called “offer to compromise” under California Code of Civil Procedure section 998 can reverse the parties’ entitlement to costs after the date of the offer, depending on the outcome of the litigation. Cal. Code Civ. Proc. … Continue reading

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That’s Common Knowledge! Failure to Designate an Expert Witness in a Professional Negligence Case is Not Fatal Where “Common Knowledge” Exception Applies

By:  Lyndsey Torp In reversing summary judgment for defendants, the California Fourth District Court of Appeal recently held that homeowners suing their real estate broker for negligence did not need an expert witness to establish the elements of their causes … Continue reading

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What If Your CCP 998 Offer is Silent on Costs?

By: Tony Carucci In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a party … Continue reading

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Ten Years After Colorado’s Adverse Possession Amendment: a brief look backwards and forwards

In response to national outrage over an infamous adverse possession case in Boulder, Colorado, in which a lawyer and a judge intentionally took their neighbors’ undeveloped land through adverse possession, the Colorado legislature amended the state’s adverse possession statute (C.R.S. … Continue reading

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California Supreme Court Clarifies Deadline to File Anti-SLAPP Motions in Light of Amended Pleadings

By: Tony Carucci California’s “anti-SLAPP” (“SLAPP” is an acronym for strategic lawsuit against public participation) statute—codified at California Code of Civil Procedure section 425.16 et seq.—is the primary vehicle for defending against any action involving petitioning or free speech. The … Continue reading

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Withdrawal of an Admission in California May Shift Costs—Including Attorneys’ Fees—Incurred in Connection with the Withdrawal

By: Tony Carucci Under California Code of Civil Procedure section 2033.300, a court may permit a party to withdraw an admission made in response to a request for admission upon noticed motion. The court may only do so, however, “if … Continue reading

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California Mediation Confidentiality May Apply to Third Party “Participants” Retained to Provide Analysis

By: Tony Carucci California Evidence Code section 1119 governs the general admissibility of oral and written communications generated during the mediation process. Section 1119(a) provides that “o evidence of anything said or any admission made for the purpose of, in … Continue reading

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California Supreme Court Hands Victory to Private Property Owners Over Public Use

By:  Sean M. Sherlock In 1970 the California Supreme Court held that, under certain circumstances, private property owners impliedly dedicate their property to the public if they permit the public to use it. Gion v. City of Santa Cruz (1970) … Continue reading

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Does Your 998 Offer to Compromise Include Attorneys’ Fees and Costs?

By: Anthony J. Carucci In California, the “prevailing party” in litigation is generally entitled to recover its costs as a matter of law. See Cal. Code Civ. Proc. § 1032. But under California Code of Civil Procedure section 998, a … Continue reading

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Avoiding Lender Liability for Credit-Related Actions in California

By: Anthony J. Carucci Aside from general statutory prohibitions on lender discrimination, there are certain circumstances under California law in which lenders may be held liable for credit-related actions, such as negotiating or denying credit. See generally 11 Cal. Real … Continue reading

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Applying New California Rules to Your Real Estate Litigation Practice

By: Lyndsey Torp Several new California procedural rules went into effect on January 1, 2016. While we are several months into the new year, litigators may need a reminder of these new rules.  The list below summarizes several of the … Continue reading

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Property Taxes: A Shopping Center May Not Always be a Shopping Center

By:  Rick Herold, Craig McPike & Ben Reeves In the world of real property taxes, Valuation + Classification = Assessed Valuation.  Sounds simple, right?  The County Assessor determines the first factor, valuation (subject to certain guidelines under applicable Arizona law).  … Continue reading

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Homebuilders Welcome Recent Court Decisions

By:  Patrick Paul Arizona homebuilders will welcome with open arms two recent legal rulings of substantial impact to their industry. In the first decision, on July 28, 2015, in Sullivan v. Pulte Home Corp., No. 1 CA-CV 14-0199, the Arizona … Continue reading

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Arizona Court Clarifies Premise Liability

By:  Kevin J. Parker In a recent Arizona Court of Appeals case, the court clarified the rules for liability of a property owner to a person injured on the premises. In Lee v. M & H Enterprises, Inc. and Wal-Mart … Continue reading

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Federal Courts to Apply More Protective State Law when Analyzing Validity of Pre-dispute Jury Trial Waivers in Diversity Jurisdiction Cases

By Anthony J. Carucci The Ninth Circuit Court of Appeals recently held that federal courts sitting in diversity jurisdiction must apply the underlying state law to determine the validity of pre-dispute jury trial waivers where the state law is more … Continue reading

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California Case Requires Arbitration Despite Lack of Actual Controversy

  By:  Lyndsey A. Torp and Sean M. Sherlock For parties to litigate a contract dispute in a court of law, the parties’ disagreement must have ripened into an actual controversy presenting more than a mere academic difference of opinion.  … Continue reading

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Easements Made Easier: Building Pipelines with the Power of Eminent Domain Under the Natural Gas Act

By: Richard H. Herold Any person or entity seeking to construct a natural gas pipeline and successful in obtaining a certificate of convenience and necessity from the Federal Energy Regulatory Commission may exercise the power of eminent domain to obtain easements across … Continue reading

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Real estate salesperson succeeds in mission to collect commission

By: Erica Stutman A.R.S. § 32-2152 allows a real estate broker or salesperson to file a court action to collect earned compensation if he was a “qualified licensed broker or salesperson at the time the claim arose.”  In Focus Point … Continue reading

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The Registrar is Changing the Game for Complaints Against Arizona Contractors

By Rick Erickson http://www.swlaw.com/attorneys/rick_erickson Sweeping changes at the Registrar of Contractors have the construction and real estate industries concerned and curious.  The Registrar recently received some poor performance reports by the Auditor General and State Ombudsmen.  As a result, the … Continue reading

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Commercial Real Estate Broker Liens

Arizona, by statute, allows a commercial real estate broker in certain limited circumstances to record a lien against the owner’s real property which is the subject of the commission agreement, in order to protect the broker’s entitlement to their commission.  … Continue reading

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Arizona Residential Mortgage Brokers: Potential Additional Liability Exposure on the Horizon

by Bob Henry Arizona Senate Bill 1026, introduced by Senator Ableser, proposes some significant changes to the law governing Arizona’s residential mortgage brokers that could expand their potential liability arising out of their day-to-day business dealings. The bill proposes amendments … Continue reading

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Bidding on State Land Trust Leases: Even the Top Revenue-Generating Bids Must be Balanced Against Qualitative “Best Use” Factors Designed to Protect the Land

By:  Richard H. Herold The Court of Appeals recently held that that the Commissioner of the State Land Trust Department properly balanced Wildearth Guardians, Inc.’s higher revenue-generating bid against “best use” qualitative factors set forth in the Arizona Administrative Code.  … Continue reading

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Suing a Licensed Real Estate Professional May Require You to Complete and Turn In Your Homework.

By: Cory L. Braddock A lawyer must have a good faith belief, after reasonable inquiry, that a lawsuit he files is grounded in fact and warranted by existing law.  Ariz. R. Civ. P. 11.  In other words, lawyers violate Arizona’s … Continue reading

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Arizona’s Anti-deficiency Statute, A.R.S. 33-814(G), Cannot be Prospectively Waived Says the Court of Appeals

By:  Ben Reeves In Parkway Bank & Trust Co. v. Zivkovic, 662 Ariz. Adv. Rep. 26 (Ct. App. 2013), the Arizona Court of Appeals held that provisions in loan documents purporting to waive the applicability of A.R.S. § 33-814(G) violate Arizona … Continue reading

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Sign those Real Estate Agreements!

By: Bobby Kethcart The Statute of Frauds is a BIG deal in real estate transactions and litigation. (This is our second post about it already…) We know it requires (most) agreements related to real estate to be in writing—agreements for … Continue reading

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Broker Beware?

By: Erica Stutman While oral contracts are often enforceable, certain categories of contracts must be documented in a signed writing or an action for breach of the contract will be barred by the statute of frauds.  See A.R.S. 44-101 for … Continue reading

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