Glass & Goldberg
Bringing California Law Into FocusSeptember 2010
Greetings!   
 
Marshall GoldbergThe purpose of this newsletter is to provide you, our clients and friends, with frequent updates of significant changes in California law and the Courts.  It is our hope that this will enable you to make the most informed decisions relating to your litigation and transactional matters.  We recognize you as being the reason for our continued success and know that you have a choice.  We are very appreciative to you for allowing us to serve you. 

As always, we invite your suggestions on how we can improve on our service to you and welcome submissions and/or suggestions on content matter for this e-newsletter.

Best regards,
Marshall Goldberg

Los Angeles Superior Court Suspends Furlough Days
 
Since our last newsletter, the Los Angeles Superior Court suspended indefinitely the monthly furlough day observance. The Court resumed a regular workday schedule, except for recognized, posted holidays, until further notice.  Although Governor Schwarzenegger reinstitued furloughs for state employees on July 28, 2010, Superior Courts throughout the state are not affected by the Governor's orders for the observance of furlough days by other state agencies. The court has also indefinitely delayed plans to lay-off an additional 500 employees.
New California Appellate Case:  Prejudgment Writs of Attachment
 
The obligation of a guarantor is considered to be a separate obligation from that of the primary obligor and is therefore wholly unsecured. Consequently, a Writ of Attachment may be granted for the entire contractbalance, without regard to the value of the equipment, if there is a waiver contained in the guarantee of the right to compel the creditor to first look to the collateral securing the primary obligation. Bank of America, N.A. v. Stonehaven Manor, LLC (Third District) 
New California Appellate Case: Absolute Right to Have Default Set Aside When Application Accompanied by Declaration of Attorney Fault Does Not Extend to Motions for Summary Judgment.  
 
The law mandating that default or dismissal be set aside upon timely motion accompanied by adequate declaration of attorney fault, does not apply to summary judgments under Code of Civil Procedure Sec. 473(b). A trial court did not abuse its discretion in denying a motion to set aside summary judgment in favor of defendant,where the judgment had been granted based on failure of plaintiff to file timely opposition,and the trial court justifiably concluded that plaintiff's attorney committed inexcusable neglect by failing to properly supervise his paralegal or to request extension of time once he realized that she had not left documents for his review and signature, and instead had taken them with her on vacation and was planning to attempt to file them electronically from a remote, out-of-state location. Henderson v. Pacific Gas and Electric Co. - filed August 5, 2010, Fifth District

New 9th Circuit Court Case: Mortgage Lender May be Liable for Negligence Because It Allegedly Falsified Borrower's Income and Over-Appraised Property.

In an environment where more and more borrowers are defaulting on real property secured loans, a district court in California has held that a mortgage lender may be held liable in negligence for allegedly falsifying the borrowers' income on their application and over-appraising the property securing the mortgage. Sullivan v. JP Morgan Chase Bank, NA, 2010 Westlaw 2643311 (E.D.Cal.)

New California Appellate Case: The Right of A Party To Seek Its Attorney's Fees When It Proves the Truth Of A Matter At Trial That Was Denied In Response To Its Request For Admission Does Not Extend To The Responding Party's Counsel
 
A costs of proof order under Code of Civil Procedure Sec. 2033.420--which provides that a party who unreasonably denies a request for admission may be required to pay the requesting party its reasonable expenses, including reasonable attorney's fees, incurred in proving the truth of the matter at trial--may not be directed to the denying party's counsel.The text of the statute is unambiguous, it provides for an award of costs of proof against "the party to whom the request [for admission] was directed"; it makes no provision for an award of costs of proof against the party's attorney. 
Estate of Manuel - filed August 10, 2010, Second District, Div. Three, Cite as B210701
 
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