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Litigation

A controversy before a court or a “lawsuit” is commonly referred to as “litigation”. If it is not settled by agreement between the parties it would eventually be heard and decided by a judge or jury in a court. Litigation is one way that people and companies resolve disputes arising out of an infinite variety of factual circumstances.

A California Partnership Ceases To Exist Without Two Or More Partners

Wednesday, August 10, 2011
By James Ficenec
A California Partnership Ceases To Exist Without Two Or More Partners

Occasionally a court decision seems so obvious that it is difficult to understand why the issue was disputed.  In Corrales v. Corrales, the California Court of Appeal held that a partnership cannot exist without  two or more partners.  This common sense conclusion has an important effect on the rights of former partners. Under the... »

Licensed Contractor’s Use Of Incorrect Fictitious Business Name Did Not Bar Claim For Payment

Monday, June 27, 2011
By James Ficenec
Licensed Contractor’s Use Of Incorrect Fictitious Business Name Did Not Bar Claim For Payment

California law precludes actions by unlicensed contractors to recover payment for services as a contractor.  In Ball v. Steadfast-BLK, the California Court of Appeal ruled that the law did not prevent recovery by contractor who, while licensed as a sole proprietor, entered into a contract under an unregistered false business name. Mr. Ball was... »

A Defendant May Recover Its Attorneys’ Fees Incurred Defending Frivolous Civil Rights Claims

Sunday, June 26, 2011
By James Ficenec
A Defendant May Recover Its Attorneys’ Fees Incurred Defending Frivolous Civil Rights Claims

Federal law generally permits a plaintiff who successfully pursues a civil rights claim to recover his or her attorneys’ fees.  A successful defendant, however, is typically only entitled to recover its attorneys’ fees if the complainant claims are determined to be absurd.  In this context, “frivolous” means without legal or factual basis.  A claim... »

Arbitration Clause In Trust Document Not Enforceable Against Beneficiaries

Sunday, May 15, 2011
By James Ficenec
Arbitration Clause In Trust Document Not Enforceable Against Beneficiaries

Beneficiaries cannot be bound by an arbitration clause in testamentary trust documents. In Diaz v. Bukey, the California Court of Appeal affirmed a probate court ruling that denied a trustee’s motion to require a beneficiary to arbitrate a petition to remove the trustee. The trustee’s motion was premised »

Residential Borrower May Enforce Lender’s Promise to Negotiate Loan Modification

Thursday, February 24, 2011
By James Ficenec
Residential Borrower May Enforce Lender’s Promise to Negotiate Loan Modification

A residential borrower who relies on a lender’s promise to negotiate a loan modification may have a claim against the lender if the lender breaches that promise.  In a recent case before the California Court of Appeal, Aceves v. U.S. Bank, the plaintiff homeowner alleged that she filed a petition in bankruptcy to avoid... »

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