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How To Prevent A Fee Simple Absolute From Becoming A Prescriptive Easement

And Other Nonsensical Real Estate Terms

If you own property that is occasionally used by others, then you might want to consider this code section and this case.  In order to avoid granting someone an easement over your property, you as the owner need to post a sign that reads:  "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code."  A "No trespassing" sign doesn't cut it.  If someone other than the owner posts the sign, that action doesn't work, either.

It has to be posted by the owner and the sign has to read exactly as required by the code.

According to the case, the statute was initially enacted to benefit shopping centers (it was 1965, and they didn't call them malls yet).  The idea was to eliminate the old method of preventing a prescriptive easement by interrupting the use of the easement.  Apparently, shopping centers would shut down for a day so no one using the shopping center could claim an easement to pass over it.  Posting the sign allowed the shopping centers to remain open and keep the economy strong.

Long and short?  If you own property and allow someone else to use it with your permission, you might want to consider investing in a sign and following the requirements of the code.  Otherwise, you might find out that you no longer own a fee simple absolute.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, March 29, 2006 at 21:39. Comments Closed (0) |

It's Not Nice To Fool The Attorney General (Or The Court Of Appeal) With Prop 65 Settlements

If you do, you just might end up with your name in an opinion like this one.  It's not a pretty sight.  Here are some of the gems from the opinion about the value of the Proposition 65 settlement in the matter of Consumer Defense Group v. Rental Housing Industry Members:

"...[I]nstead of $540,000, this legal work merited an award closer to a dollar ninety-eight."

"But when litigation is as easy as shooting the side of a barn, drawing circles around the bullet holes and then claiming you hit the bull's eye ... only the most minimal attorneys fees are conscionable."

"At oral argument, Anthony G. Graham proudly proclaimed that he was a 'bounty hunter.  The statute was created for me.'  We will have more to say about exactly who Proposition 65 was created for later, but it wasn't bounty hunters."  First clue:  the Court believes it was created to protect the general public.

"We are not the first to use the allusion to extortion to describe this litigation." 

And that's just the light stuff.  Presiding Justice David Sills has some strong opinions about what he calls the "shakedown litigation" of Proposition 65, and lets the Plaintiff have it with both barrels.  To add insult to injury, he dismisses the two related cases in Footnote 23, the final footnote in the opinion.  Not many cases get dismissed after an appeal, and even less by way of a footnote.  Justice Sill's parting shot in the footnote?  "... we leave the parties in pari delicto."

I'm surprised he didn't also award attorneys fees to the Attorney General, who objected to the settlements and filed this appeal. 

The problem started when the Consumer Defense Group sent a batch of Notices of Intent to Sue to various apartment owners around the state, and then entered into settlements designed to provide the maximum protection from future Prop 65 litigation.  The real problem came, however, when CDG and the law firm accepted some $540,000 in attorneys fees to provide the protection.  The Court accused CDG and Mr. Graham of falsification of time records and of not actually undertaking the required investigations that led to the lawsuits.  Ouch.

The undoing of the lawsuits, however, was the Notice of Intent to Sue.  It was so vague that in the Court's opinion, it could apply to every building in the state.  If you occasionally read opinions and want to know what upsets appellate justices, this one is in the must-read category, if not also for the more casual style of writing that's coming out of this District.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, March 28, 2006 at 16:18. Comments Closed (0) |

Tunnelling For Dollars Won't Alleviate Traffic Anytime Soon

Orange County at least once went bankrupt, and Leno accused us of seeking "brunch aid" from the federal government since this county is one of the most affluent in the country.  Well, it appears that scrapping for money isn't over yet.

Several municipal water districts here and in Riverside County have formed the Riverside Orange Corridor Authority to study the idea of constructing a tunnel between Riverside County and Orange County under the Santa Ana Mountains.  Right now, there are really only two ways in and out of Orange County from Riverside County.  State Highways 91 and 74.  The latter is a narrow, winding, two-lane road frequented by motorcyclists for its "twisties" - sharp turns in the mountains.  The former is commonly known as a parking lot during rush hour.

The tunnel has long been a pipe dream, but last year it got $16 million dollars closer.  That's how much it takes to study whether the tunnel is a good idea.  Well, they can just write that check to me.  I'll be happy to tell them it's a good idea, and just for free, I'd add in the advice that a better expenditure of the money would be to start digging rather than have sixteen guys with orange vests leaning on shovels and six trucks with lights flashing to "think about" working. 

Realistically, though, I suspect the money will be well-spent trying to determine where to build the tunnel, which cities will be the entry/exit point, and what else will run through the tunnel, such as telephone, water, electricity, trains and presumably cars and trucks to lessen the burden on our already overburdened freeways.

Whether you think it's a good idea or not, we're one step closer to a tunnel that will likely be a $25 billion, 25-year event.  The parking lot will stay that way for a long time to come.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, March 27, 2006 at 18:05. Comments Closed (0) |

Headlines That Don't Make Sense Until You Read The Post: Out, Out Damned Spot, But I Can Still Do 185

You spend $128,000 to buy a Maserati GrandSport, and beyond the fact that it's fast, you figure that it's probably pretty well put together.  Apparently, Christopher Cefora of Manhattan, New York disagrees.  He was a bit distressed with some defects in his car that Maserati, he claims, refused to repair.  According to Courthouse News, Mr. Cefora has problems with “a. Defective Paint b. Scratch on window c. Headlight Washer detached [and] d. Any and all other defects.”

Yep, you guessed it.  That refusal led to a lawsuit.  Now, Mr. Cefora wants his money back along with punitive damages.  In federal court.

I don't know about New York, but in California, he'd better keep making his car payments.  Our Lemon law probably wouldn't help him out.  Generally speaking, the defect has to relate to a safety problem.  Maybe the headlight washer would qualify.  Then again, maybe not.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, March 26, 2006 at 23:00. Comments Closed (0) |

Government Threatens To Prosecute Private Company Who Does A Better Job

What's wrong with this picture?  Consider this:  A meatpacking company in Kansas wants to test every cow it slaughters for Mad Cow Disease, but if it does, then the USDA has threatened to institute criminal prosecution proceedings.  That's right.  Go back and read that second sentence again.  A private company wants to do more than it's required to do to protect consumers, but the government won't let it.

According to Kansas meatpacker Creekstone Farms, its Japanese customers insist that every cow be tested for bovine spongiform encephalopathy, or BSE, which we know as Mad Cow Disease.  The company cites "a December 2005 poll by the Kyodo News Service[, which] found that more than half of Japanese consumers want U.S. beef to be tested for BSE."  The company also said, "Creekstone simply wants to satisfy its customers," according to its press release.  Somewhat surprisingly, the USDA has for two years refused to allow Creekstone access to the BSE test kits, claiming that it has exclusive authority to conduct testing.  The testing would add about 10 cents to each pound of beef sold, or $20.00 per cow.

To fight back, the company, Creekstone Farms Premium Beef, LLC filed suit in Washington, D.C. challenging the USDA's ban.   The USDA website has no immediate response to the lawsuit, but did post this press release about its visit to Japan asking the Japanese government to reopen its borders to American beef.  The USDA reports, "Japan reopened its market to U.S. beef on December 11, 2005 but halted U.S. beef imports on January 20, 2006 after receiving a shipment of U.S. beef that posed no food safety risk but did not meet the specifications of the U.S. export agreement with Japan."

Am I missing something here? 

Let's recap.  We know that Japan wants all of its imported beef tested for BSE.  All of it.  All the time.  Every single cow.  Since it's not, Japan banned US beef imports. 

In response to that ban, two things happened.  First, a US beef exporting company voluntarily offered to test for BSE, but the USDA won't permit it.  Not only will the government agency not permit the testing (which would also make beef safer for US consumers), but the USDA has also threatened to criminally prosecute the US company if it tries to test in order to comply with its customer's demands.

Second, and somewhat incongruously, the USDA has dispatched a team of negotiators to Japan to convince the Japanese government that importing US beef is safe.  The only clue we have about this apparent disconnect on the government's part is a thinly-stated position that the USDA has prepared a "thorough report" showing the safety of US beef.  Not even a claim that the Japanese have agreed in a treaty to allow the sporadic level of testing we have now. 

MIPTC votes to prosecute the USDA for its ___________ (you fill in the blank).



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, March 25, 2006 at 12:38. Comments Closed (1) |

Coast to Coast Internet Radio Covers The Gender Gap: Women In The Law

Is the gender gap in the legal profession widening?  According to statistics someone apparently researched, only about 17 percent of partners at major law firms nationwide are women.  That issue is the hot topic on this Coast to Coast show with my co-host Robert Ambrogi, a fellow Massachusetts attorney and Law.com blogger.  You'll hear our interview with lawyers across the country. 

Our guests include Attorney Lauren Stiller Rikleen, senior partner at Bowditch & Dewey and author of Ending the Gauntlet: Removing Barriers to Women’s Success in the Law.

Also on the show is New England School of Law Professor Ronald Chester, who has written extensively about the legal gender gap and is a faculty expert on women in law.  Professor Chester is the author of the award-winning Unequal Access: Women Lawyers in a Changing America, which traces the early history of the New England School of Law.  He’s also a faculty expert on women in law and has written many articles on the topic.

Our final guest is Attorney Mary Musette Stewart, President of the Central Florida Association of Women Lawyers, devoted to promoting the advancement of women in the legal profession.  Don't miss this important discussion.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, March 24, 2006 at 13:00. Comments Closed (0) |

How Many Writings Does It Take To Have A Written Agremeent?

When you place a written settlement on the record in front of the Court, is it an oral agreement or a written agreement?  What if the parties agree to later produce an actual, written agreement?  Add into the mix that the parties actually wrote an agreement and one party signed it, but the other refused. 

Think about one more fact:  the court reporter produced a written copy of the agreement on the record.  The agreement, however, couldn't be performed within a year, presumably invoking the statute of frauds.  That statute requires a writing for contracts involving, among other things, agreements that take longer than a year to perform. 

To confuse matters more, the party who was to be paid under the agreement (the Plaintiff) waited more than two years, but less than four, to sue after the other party stopped making payments (the Defendant).  Oh yes, the parties did not vest continuing jurisdiction in the court, and the Plaintiff voluntarily dismissed the original case.  By now, if you're a California attorney you've probably figured out why we have this problem. 

California lawyers know that we have a four-year statute of limitations for bringing suit on a written contract, and two years to sue on an oral contract.  The Defendant in our case argued that the Plaintiff couldn't collect because he waited beyond the time to sue because the contract was only oral.  The Plaintiff obviously argued otherwise.

How do you rule? 

This Appellate Court reasoned that the "concern addressed by the statute of frauds is not present."  There were two writings that set out the terms of the agreement, more than enough to allow enforcement.   



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, March 23, 2006 at 11:09. Comments Closed (0) |

Tactics Of Spam Emailers May Backfire Even If In Compliance With Can-Spam Act

Rarely do you see posts on MIPTC critical of electronic technology, but today's an exception.  You, like me, may regularly receive what some consider to be spam emails from National Constitution Center Conferences.  The company, located in Malvern, Pennsylvania, puts on a host of audio conferences on various legal topics.  Every day, I receive anywhere between two to five emails from the company.  Here's an example.

In a telephone conference this morning with one of the company's supervisors, Mike Brown, he claimed that the company's multitude of emails comply with the Can-Spam Act because they contain the company's address and telephone number, along with an Opt-out option.  While that may be technically true, the Opt-out screen is deceptively designed, in my opinion. 

When you click on the Opt-out button in the email, you're redirected to the company's Opt-out screen, and because you're already frustrated with being pummeled with numerous emails from the company, you quickly spot the Opt-out button and click.  Good, you think:  you're done. 

Not so fast.  If you take the time to read the script on the page next to the Opt-out button, you see that clicking on that button works only to remove your email address from further emails for that particular audio conference.  Each of the two to five emails I received are for different conferences. 

Ugggh.

So, I get on the telephone and fairly quickly get routed to a supervisor, in my case Mr. Brown, who very politely asks me to scroll down on the Opt-out page all the way to the bottom, below the fold.  Lo and behold, there's another Opt-out button, promising to remove your email address from all further emails.  Except, however, as Mr. Brown informs me, that request to the company is updated every weekend, so I can expect to receive another twenty or so emails from NCCC. 

Ugggh again.

After informing Mr. Brown of my opinion that the second, below-the-fold Opt-out button is deceptively placed, he agreed to immediately remove my email address from his company's system.  He did not, though, take me up on my advice to redesign the page to put both Opt-out buttons together and prominently display the difference between the two.  If you're not paying close enough attention, you may continue to receive emails like I did.  There are consequences to tactics like this one.

Like me, you may also choose to vote with your feet and not enroll in any of the company's legal audio conferences. 

3/23/06 Update:  Two emails received today.  Apparently, Mr. Brown has not removed my email address from the company's system.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, March 22, 2006 at 12:37. Comments Closed (0) |



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