ROBERT I. LEVY

Attorney & Counselor at Law - A Professional Corporation

(510) 465-0025

Real Estate and Business FAQs

WHAT CAN I DO IF I HAVE BEEN SUED IN A MERITLESS OR BASELESS LAWSUIT?

General Information

A question I hear often enough is “What can I do if I get sued in a lawsuit where the claims against me are meritless or baseless?” This happens because either the facts alleged in the lawsuit against you are untrue or the claims themselves are legally invalid.

Unfortunately, as a general rule, even if someone sues you in a meritless case, you have to defend the lawsuit. There are, however, a number of different ways to deal with a meritless lawsuit to expedite ending the case or revealing to the Court the defects in the case.

First, in a case where the claims are legally invalid, you can attack the Complaint early on using different tools such as demurrers, motions to strike, and motion for judgment on the pleadings, to name a few.

And in those instances where the factual claims are just completely invalid, lies, or mistruths, the best thing to do is to gather evidence to demonstrate that the facts alleged in the lawsuit are untrue and then your attorney can do their best to try to dispose of the case with a dispositive (case-ending) motion such as a motion for summary judgment, or to simply convince the attorney for the plaintiff to just dismiss the case.

Unfortunately, these types of issues come up much more often than they should. I often represent defendant-clients in the Bay Area, California, in an effort to dispose of these types of meritless claims. If you have questions, or need representation by a California litigation attorney involving these types of baseless or meritless claims, please feel free to contact me to arrange for a consultation at (510) 465-0025.

RIGHT TO AN ACCOUNTING IN PARTITION ACTIONS

General Information, Real Estate Law

A partition action is a lawsuit between co-owners of real property, where the plaintiff is attempting to have the Court force the sale of property which they own with another owner or owners. Partition actions are not, however, limited to obtaining the court’s Order to sell the property jointly owned. The Court has other equitable powers in a partition action including the court’s ability to conduct an accounting if there is an imbalance in who received rents on the property or an imbalance in payments made by the co-owners towards maintenance of the property.

What this means is that the Court can require an accounting to be done between the parties before deciding what to do with the proceeds from the sale of the subject property. If the Court determines that one of the owners has received more than his/her share of the rents, the Court can Order that owner to first repay the amounts he/she received in rents in excess of the other co-owners, before they can receive their percentage share from the proceeds from the sale.

Similarly, if one of the owners has paid more than their share of the costs in maintaining the property, as compared to the other owner or owners, the Court has the power to Order that the owner that has paid less than the other owner(s), reimburse the other owner(s) so the amounts that each have spent on maintaining the property are properly proportionate.

To conduct the accounting, the Court would order the property be sold and then after determining the amount of net proceeds available from the sale, would issue an Order on how those proceeds would be distributed after taking into account whether one of the owners needs to be reimbursed for their share of rents that they never received or for their overpayment for property expenses. After those funds are redistributed, the Court would then Order all of the proceeds to be proportionately distributed.

I regularly represent clients in Oakland, California and in the East Bay, California, in partition actions. If you have questions, or need representation by a California real estate attorney involving a partition action or a dispute between co-owners of real property, please feel free to contact me to arrange for a consultation at (510) 465-0025.

 

WHAT IS THE STATUTE OF FRAUDS AND ARE ORAL OR VERBAL AGREEMENTS ENFORCEABLE?

Business Law

So much of what we do in life and in business is done verbally. And it is not uncommon, and often typical, to enter a handshake deal, where you have agreed to enter agreements verbally or orally. This begs the question as to whether or not oral agreements are enforceable in California. The simple answer is yes. However, certain types of agreements need to be in writing to be enforceable.

In California, there is something referred to as the statute of frauds which says that certain types of agreements need to be in writing. One example of a type of agreement that is covered by the statute of frauds are agreements that require more than a year to be performed. However, even when the statute of frauds might apply to an agreement, requiring the agreement to be in writing, the statute of frauds has many exceptions. Therefore, even if an agreement is oral, and the statute of frauds would otherwise apply to that agreement requiring it to be in writing, an exception may apply, making it permissible that the contract is an oral contract.

It is always best to get a contract in writing. It eliminates the possibility that the other party to the agreement might deny the existence of the agreement, and it avoids disputes regarding what the terms of the agreement might be. If you must enter an agreement verbally, you should, at a minimum, confirm in writing the basic terms of the agreement. Often a simple email can overcome the limitations of the statute of frauds, and can avoid later disputes as to whether there was an agreement, or what the terms of the agreement might be.

I regularly represent clients in East Bay, California in contract disputes involving oral or verbal agreements, as well as disputes involving written agreements. If you have questions, or need representation by a California contract attorney involving a contract dispute or issue, please feel free to contact me to arrange for a consultation at (510) 465-0025.

WHAT CAN I DO WHEN I HAVE GIVEN TITLE TO A PROPERTY TO SOMEBODY I TRUSTED WHO LATER REFUSES TO GIVE TITLE BACK?

General Information, Real Estate Law

Sometimes the true owner of a property finds it necessary to obtain or transfer title to real property to a third party, usually somebody they trust, for a variety of reasons, the most prominent being, as a necessity to obtain financing to purchase the property.

Occasionally, the trusted person later refuses, for whatever reason, to properly return title to the property to the true owner. In this case, there are remedies available to the true owner of the property.

The true owner of the property can file a lawsuit to recover title to the property from the third party. This type of action is similar to, but slightly different from, a quiet title action. This type of action is actually an action for equitable relief, where the true owner is trying to obtain a court order declaring that all right, title, and interest in the property belongs to the plaintiff (the true owner).

If the true owner is concerned that the person holding title to the property might sell or place a lien against the property, it is important to get a lawsuit filed right away, and then the true owner can record something against the property known as a lis pendens (or notice of pendency of action), which in most instances will prevent the person holding title to the property from selling or placing a lien against the property.

I regularly represent clients in the Bay Area, California in these types of equitable actions. If you have questions, or need representation by a California real estate attorney involving a title dispute, please feel free to contact me to arrange for a consultation at (510) 465-0025.

 

 

IF I AM A SUBCONTRACTOR ON A PUBLIC WORKS CONTRACT AND NOT BEING PAID, WHAT CAN I DO TO GET PAID?

Real Estate Law

Subcontractors (and general contractors as well) sometimes find it very difficult to get paid on public works projects. It is not uncommon for many many months to go by after a subcontractor has completed work on a public works project, before the subcontractor gets paid. And when the subcontractor does get paid, it is not uncommon for there to be disputes as to whether work billed as extra work was within the scope of the original subcontract or whether it was indeed extra work to which the subcontractor is entitled to be paid.

If you are a subcontractor on a public works contract and you are not being paid, it is very important that you consult with an attorney and develop a strategy on how to deal with it. There are a myriad of issues relating to enforcing your rights against a senior sub, the general contractor, or the public entity. For example, even though public works construction contracts routinely have provisions that the subcontractor is only to be paid after the general is paid for that work, those types of provisions are generally unenforceable as contrary to public policy. Additionally, if you do not properly prepare and serve a preliminary notice and timely serve a stop notice, your stop notice rights will be waived.

Cash flow for subcontractors tend to be very tight in comparison to the general contractors. Therefore, timely payment can be much more critical and failure to get paid within a reasonable amount of time can be disastrous for a subcontractor. I understand both the need to get paid, and the legal procedures in order to help you get paid. I regularly represent subcontractors relating to payment disputes with senior subs and general contractors. If you believe that you would benefit from a consultation or representation, please feel free to contact me to arrange for a consultation at (510) 465-0025.

What Is the Likely Outcome of a California Partition Action

General Information, Real Estate Law

A partition action is a lawsuit that a owner of property files against the other owners of the same property to compel the sale of the property.  To commence a partition action, the lawsuit (or complaint) is filed.  Then all owners of the properties are served with the lawsuit.

The process can end shortly after that point if the defendant obtains sound legal advise.  There are not many defenses to a partition action, particularly if the property involved contains a single structure such as a house.  With that being the case, it is in the best interests of all of the parties, plaintiff and defendants alike, to resolve the case by either selling the property or where one of the defendants buys-out the plaintiff’s interest in the property.

If the defendant is receiving good advise, an immediate opportunity to settle the case should be present.  Defendants, however, do not always get good advise and do not always make reasonable and rational decisions.  But even those cases, after some time, do get resolved with a buyout or a sale of the property.

I regularly represent plaintiffs and defendants in California partition actions in the East Bay Area.  If you believe that you would benefit from a partition action or have been named as a defendant in a partition action, please feel free to contact me to arrange for a consultation at (510) 465-0025.