Las vegas Archives - Morris Law Center

Moving to Strike Fees in a California Quiet Title Action

Issue: Can a defendant in a quiet title action in California properly move to strike a claim for attorney’s fees in a complaint before discovery?

Conclusion: Yes, a defendant in a quiet title action in California can move to strike a claim for attorney’s fees in a complaint before discovery if the claim is irrelevant, false, or an improper matter in any of the pleadings.

Rules and Application:  

In the absence of some special agreement, statutory provision, or exceptional circumstances, attorney’s fees are to be paid by the party employing the attorney. Cal. Civ. Proc. Code § 1021 (2019) [1]; Prentice v. N. Am. Title Guar. Corp., 59 Cal. 2d 618, 620, 30 Cal. Rptr. 821, 823, 381 P.2d 645, 647 (1963); Reid v. Valley Rests., Inc., 48 Cal. 2d 606, 610, 311 P.2d 473, 475 (1957).

Relevant portions of Cal. Civ. Proc. Code (“CCP”) § 435(b) states: “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .”

Following the above statute, CCP § 436 states:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

California courts have generally been hesitant to find implied waivers of attorney fees. In Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 671 (1982), the Supreme Court concluded that an agreement silent as to fees does not bar a motion pursuant to CCP § 1021.5. Rather, statutory attorney fees are properly awarded “unless expressly or by necessary implication excluded by the stipulation.” (32 Cal.3d at p. 678, italics added.) Absent “affirmative agreement of the parties to the contrary,” the trial court retains jurisdiction after the filing of a compromise agreement to consider a statutory fee motion. (Id. at p. 679; see also Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578 (1987)

Federal courts have been similarly loathe to infer fee waivers. In Wakefield v. Mathews, 852 F.2d 482, 484 (9th Cir. 1988), the court noted that, “Waiver of attorneys’ fees should not be presumed from a silent record.” It then held that while “general releases of all claims and costs” do not waive attorney fees (Ashley v. Atlantic Richfield Co., 794 F.2d 128, 140 (3d Cir. 1986), El Club Del Barrio v. United Community Corporations, 735 F.2d 98, 100 (3d Cir. 1984)), an express release which includes “‘costs or expenses of any nature whatsoever, known or unknown, fixed or contingent'” does. (Wakefield, supra, at p. 484.)

Additionally, Mabee v. Nurseryland Garden Centers, Inc., 88 Cal.App.3d 420 (1979), states “[Where] attorney fees are incurred in a prior action, or sought in a proceeding as damages — as for example in false imprisonment or malicious prosecution suits — or where recovery is sought in an action by an attorney against his client for an agreed or a reasonable fee, then the claim for attorney fees is part of the damage sought in the principal action. Only in such circumstances would the attorney fee be required to be pleaded and proven — as any other item of damages — at trial. No similar procedural and evidentiary base is required where ‘the attorney fee was not the cause of action but an incident to it.'” (Id. at p. 425, citing Huber v. Shedoudy (1919) 180 Cal. 311, 314.)

Following Mabee, California courts have consistently “distinguish[ed] between” attorney’s fees that are sought as “the allowance … to the prevailing party as an incident to the principal cause of action,” and those that are sought as “part of the cause of action.” (Mabee, 88 Cal.App.3d 420, 425, superseded by statute on another ground as stated in Santisas v. Goodin, 17 Cal.4th 602, 629.) When sought by the “prevailing party … as an incident to [the] judgment” (Mabee, at p. 425), attorney’s fees may be “properly awarded [as a form of cost] after entry of a . . . judgment” (Khavarian Enterprises, Inc. v. Commline, Inc., 216 Cal.App.4th 310, 327 (2013)). However, when “fees are part of the relief sought[, they] must be pleaded and proved at trial.” (Id.) As explained by our Supreme Court: “‘[W]here attorney fees are . . . sought in a proceeding as damages . . . , then the claim for attorney fees is part of the damage sought in the principal action. … [I]n such circumstances … the attorney fee [would] be required to be pleaded and proven—as any other item of damages—at trial. No similar procedural and evidentiary base is required where “the attorney fee was not the cause of action but an incident to it.”’ (Folsom v. Butte County Assn. of Governments, 32 Cal.3d 668, 678, fn. 16 (1982), quoting Mabee, supra, 88 Cal.App.3d at p. 420.)

Here at the MLC, we love to discuss technicalities of attorney’s fees. Give us a call if you want to discuss further.

[1] Cal. Civ. Proc. Code § 1021: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”

 

Litigation: NRCP 54(b) Certification of Partial Summary Judgement

NRCP 54(b) allows a Court to make some orders on a motion for summary judgment final while the rest of the case moves forward. A ruling on partial summary judgment is not final and will not compel action by any party unless it is given finality through NRCP 54(b) certification. See NRCP 54; Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 365 (3d Cir. 1975).[1]  

NRCP 54(b) states, in relevant part “When an action presents more than one claim for relief…, the court may direct entry of a final judgment as to … fewer than all, claims … only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated,… does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims…” This shows that a decision on a partial motion for summary judgment is not final or binding unless it is certified as such under NRCP 54(b).

This reading is further supported by caselaw. See e.g. Cascade Drinking Waters v. Cent. Tel. Co., 88 Nev. 702, 703, 504 P.2d 697, 697 (1972) (“This court has held that a judgment dismissing fewer than all parties to an action without an express determination that there is no just reason for delay by the district court is not a final judgment…”)[2]

Therefore, any order on a motion for partial summary judgment is not final and does not compel action unless it is either certified or incorporated into a final judgment on the entire case. Any order on a partial motion for summary judgment which is not certified is “of an interlocutory nature.” See Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 5, 100 S. Ct. 1460, 1463 (1980). Furthermore, an order on a motion for partial summary judgment is not appealable unless it is certified pursuant to NRCP 54(b). NRAP 3A(b); Cascade Drinking Waters, 88 Nev. at 703.

At Morris Law Center, we love to dig into the technicalities of the rules. As such, if you are an opposing attorney, do not expect to catch us slipping. However, if you are a fan of legal procedure, give us a call to discuss further.


Sources:

[1] “Under 54(b) procedure, the essential inquiry is whether, after balancing the competing factors, finality of judgment should be ordered to advance the interests of sound judicial administration and public policy.” While that case considered FRCP 54(b) rather than NRCP 54(b), the reasoning is identical and after the amendments which took effect on March 1st, the rules were deliberately brought into harmony.

[2] See also Allis-Chalmers Corp. v. Phila. Elec. Co., 521 F.2d 360, 367 (3d Cir. 1975) (finding that a “lack of competent Rule 54(b) certification” created a “lack of finality”).

Options For Enforcement of Settlement Agreements

Your options are when an agreement isn’t working

What happens when you’ve reached a settlement agreement in your case using alternative dispute resolution, such as mediation or arbitration, yet one of the parties involved isn’t holding up their end of the bargain? You must be thinking “there has to be something that can be done,” and you’d be right. Below are a few options to consider when someone isn’t honoring an agreed upon settlement.

Motion to Enforce Settlement Agreement

If a case has already been filed in Nevada district court, one of the options you can consider is having the court order the other party to honor the agreement. To accomplish this, you would have to file a Motion to Enforce. In Nevada, a settlement agreement is a contract governed by general principles of contract law, and a district court has the authority to enforce a settlement agreement in an existing case where it already has jurisdiction. In order to enforce a settlement agreement, the moving party must show either: (1) a written, signed agreement; or (2) terms entered into the court minutes reduced to an order. If granted, the other party to the settlement must comply with the terms of the agreement. If they do not comply, you could pursue further remedies, such as moving to hold the other party in contempt for not following the court’s order.

Sue for Breach of Settlement Agreement

Another option is to move to add a claim for Breach of Contract (if a suit has already been filed) or to file a Complaint for Breach of Contract. In some cases, suing for a Breach of Contract is an easier case to prove than the facts of the underlying dispute, which could provide an easier route to a favorable judgment.

You might also consider an additional claim for Breach of the Implied Covenant of Good Faith and Fair Dealing. This claim would apply in cases where a party to the settlement made the agreement knowing they would not be able to fulfill their part of the agreement. This claim is meant to ensure that all parties enter into an agreement in good faith to one another and prohibits unfair acts by one party that would work to the disadvantage of the other. This claim might be available even if the court determines there is no breach of the settlement agreement itself, giving additional options for relief.

Proceed with Underlying Case

Another option to weigh is considering moving to set aside the initial agreement and proceed with litigation. This would essentially ignore the settlement agreement and proceed with the original lawsuit. However, litigation options generally come at a greater financial cost than settlement, which is something to consider.

Conclusion

In conclusion, all is not lost if the opposing party doesn’t meet their obligations. You have plenty of options to enforce the agreement, or to move on and continue litigation.

If you need assistance in your settlement agreement, or just have questions, please feel free to contact us at Morris Law Center for your complimentary consult.

And as always, “If you think you might need an attorney, you probably do.”

6 Things to Know About Employee Privacy in The Workplace

Former Associate Justice of the Supreme Court of the United States, Louis Brandeis, called the right to privacy, “the right to be left alone.” Privacy can also be defined as, “the state or condition of being free from being observed or disturbed by other people.” Many of us thoroughly enjoy our privacy at home. In fact, we usually expect it. However, at work, you won’t get to enjoy that level of privacy. There are six areas of privacy that we want to discuss.

1. WORK COMPUTERS

An employer owned computer is most commonly known to have little privacy attached to it for the employee. Your employer can monitor all activity on your computer including internet activity and email. There is even software available to monitor and log every keystroke you make, and how long you are idle at your workstation. Everything you do on your computer can be monitored by your employer to protect its business interests and thus there is no expectation of privacy. One thing an employer cannot monitor and should remain private to you is third-party personal email accessed from your work computer. It may be against company policy to view personal emails at work; however, your employer is not allowed to monitor your personal email account.

2. TELEPHONE

Your desk telephone can also be monitored. Employers can listen in on all phone calls made and received by their employees. Some states require notification that calls are being recorded to both employees and callers.  In Nevada, state law requires that all parties on the line consent to being recorded during a phone call. The only exception to monitoring phone calls is on personal calls. It is usually understood that when an employer realizes that a phone call is personal, they must stop listening. However, this can be circumvented by telling employees that personal phone calls from work phones are not allowed. Having this policy means the employee risks their personal call being listened to.

3. MOBILE DEVICES

In today’s day and age, mobile devices are widely used in the workplace. If a smartphone or tablet is provided to you by your employer, an employer is usually free to monitor your text messages, email, internet activity, phone calls, photos, videos, and apps used. This can be done by installing monitoring apps that will secretly record all this information. Be careful of using a work phone for any personal business that you would rather an employer not know about.

4. VIDEO SURVEILLANCE

According to PrivacyRights.org, “Federal law does not prevent video monitoring even when the employee does not know or consent to being monitored.” This means that video surveillance can be in the workplace to monitor employees, maintain security, and protect assets. Some states have more restrictions on video surveillance of employees, however in general your employer is free to do so.

5. U.S. MAIL

One area of workplace privacy that is not often thought about is the mail. If you have mail sent to your place of employment, once it is delivered, you employer is free to open the mail without violating any laws prohibiting this practice. If you are concerned with your mail remaining private, it might be better to have anything personal sent to your home instead of the office.

6. SOCIAL MEDIA

Social media has become a large part of society, and the information you post online is becoming increasingly difficult to keep private. Many companies have some kind of social media policy limiting employees on what can be posted online regarding their work. Public posts about your job is generally not considered to be private, and if the post has the potential to be damaging to the company in some way, the employee can be disciplined based on the employer’s policy.

As you can see, there isn’t a lot of privacy to be had at work apart from your personal belongings, and certain places such as restrooms and locker rooms. It’s unlikely that an employer will be found to have violated an employee’s privacy while that employee is on the clock at work, but it does happen. There have been cases decided where an employer has violated an employee’s privacy, but those are generally based on specific facts to the cases. If you think your privacy has been violated, contact an employment attorney for more information.

And finally, as we always say, “If you think you might need an attorney, you probably do.” Contact us before anything is set in stone. We love answering questions!

Mediation vs. Arbitration: What is The Difference?

Some people may mistakenly think that mediation and arbitration are synonymous with one another, and while it’s true there are some similarities between these two processes, the differences are considerable. Both mediation and arbitration utilize a neutral third party to oversee the dispute outside of the court system, and both are alternatives to traditional litigation. In some cases, both mediation and arbitration can be binding on the parties.

In mediation, a single agreed upon mediator is selected to assist in facilitating a discussion between two disputing parties to ultimately come to an agreeable resolution on both sides in a more informal environment.

Arbitration, however, has an agreed upon arbitrator taking on the role of a judge, hearing evidence, making decisions, and issuing opinions. In some arbitration cases, the neutral third party is a panel with both sides of the dispute selecting their preferred arbitrator, then the arbitrators themselves selecting a third to join the panel so a majority vote would prevail if necessary.

While mediation seeks mutual agreement through facilitated discussion between the parties, arbitration imposes rules by the arbitrator making decisions on their behalf. In arbitration, one of both of the parties may end up dissatisfied with that decision of the arbitrator.

In some cases, a judge may order a dispute to go through an alternative dispute resolution before continuing in the courtroom. Alternative dispute resolution generally indicates arbitration or mediation, and can many times lead to an acceptable and agreeable resolution for all involved without the need for time consuming and costly litigation in a formal court setting.

In the Eighth Judicial District Court every contested civil case is reviewed by the Alternative Dispute Resolution Office, with 75% of cases that are assigned to arbitration being successfully resolved. Parties in District Court can bypass assigned arbitration by agreeing to participate in mediation. According to the United States Department of Justice, in 2017 55% of cases were resolved by court-ordered alternative dispute resolution, and 75% of cases were resolved by parties voluntarily seeking alternative dispute resolution.

For more information on Alternative Dispute Resolution in Clark County, CLICK HERE.

So, mediation and arbitration, although having a different procedure, has a similar and fairly successful goal of resolving disputes between parties.

Our Las Vegas estate planning attorneys at Morris Law Center would love to assist answering any questions about your dispute and obtaining a resolution to it. Contact us today to set up your complimentary consult.

What You Should Know About Seller’s Disclosures in Nevada

Are you selling a house in Nevada? Are you buying a house in Nevada? Did you already buy a house in Nevada, and since discovered something that is wrong with the house? In any of these cases, you will need to know the requirements of NRS § 113.100 in regard to the seller’s disclosures. Below is an overview of the disclosure requirements, and what happens when something doesn’t get disclosed correctly.

Nevada’s Required Disclosures

In most residential property sales in Nevada, state law mandates the seller make disclosures about conditions on the property. See NRS § 113.130. These disclosures cover electrical, heating, cooling, plumbing and sewer systems, and anything else on the property that affects use or value. See NRS § 113.120. This process requires the seller to disclose any defect, which is defined in the statute as “a condition that materially affects the value or use of residential property in an adverse manner.”

What Needs to be Disclosed?

A seller is only required to disclose defects that they are aware of. In fact, the law makes clear that the seller is not required to disclose a defect of which they are not aware. NRS § 113.140. Additionally, the topics of disclosure are in a proscribed form that is adopted by the Nevada Real Estate Division, so you won’t be left trying to figure out the potential home or property features you need to address in the disclosures when selling your home.

Sellers can also rely on information that was given to them from government officials and experts like engineers, contractors, surveyors and inspectors. NRS § 113.150(5). This limits the ability of a buyer to claim damages from a known but undisclosed defect. So, a seller who is concerned about a potential defect is encouraged to consult with an appropriate expert to determine if there is a defect present before completing disclosures.

Sellers do not need to disclose defects that have been repaired. See Nelson v. Heer, 123 Nev. 217, 163 P.3d 420 (2007). For example, if a home had water damage, but the seller had it all repaired before making disclosures, it no longer needs to be disclosed.

Failure to Disclose

So, what happens if a seller fails to disclose a defect? The big risk is NRS § 113.150’s treble damages clause. Treble damages is a legal term for triple damages. The law allows a home purchaser who is saddled with a defect that the seller knew of, but did not disclose, to seek three times the cost of repair or replacement. This is a very big incentive for sellers to disclose known defects, because the consequences are steep. The purchaser can also seek court costs and attorney’s fees, making it even more crucial for sellers to make adequate disclosures. However, the treble damages, costs, and attorney’s fees are something the buyer can waive in a signed, notarized document.

What Real Estate Agents Should Know

Sellers’ real estate agents should be aware that they also have duties to disclose known defects, but are not in the precise situation that the seller is in. Licensed real estate agents are required to disclose to all parties “any material and relevant facts, data, or information which the licensee knows, or which by the exercise of reasonable care and diligence should have known, relating to the property which is the subject of the transaction.” NRS § 645.252. Generally, real estate agents are not liable for a misrepresentation of their client, but they can become liable if they knew the client made a misrepresentation, and the agent failed to inform the other party. NRS § 645.259. So, if a real estate agent knows of a defect and that her client failed to disclose it, she will need to disclose it to the buyer.

The good news for real estate agents is that even if they are liable for a failure to disclose, the treble damages clause does not apply, and the buyer’s recovery against an agent is limited to the decreased value of the property and damages resulting as a consequence of the nondisclosure. See Davis v. Beling, 128 Nev. 301, 278 P.3d 502 (2012)..  A successful plaintiff can recover the diminution in value as well as consequential damages from the agent. Id.

Conclusion

Real property transactions can be difficult and complicated, and seller’s disclosures are just one piece of the puzzle. Sellers and buyers should make use of the resources available through experts like engineers and inspectors, real estate agents, and even lawyers to ensure a smooth transaction. As always, if you think you might need an attorney, you probably do.

Can a Court Judgment be Recorded Against Real Property?

The short answer is “yes.” Not only can you record a judgment against real property, but you will often want to. Obtaining a judgment lien against real property can be a good way to ensure payment of a judgment debt. A lien on the property makes it more difficult for a judgment debtor to transfer an interest in the property and gives the judgment creditor (the person who won the judgment) the ability to take further steps, including foreclosure on the property.

CLICK HERE to read the full story.

What Rights Do Cohabitating Couples Have?

More and more of us are choosing to live with our partners (before, or instead of, marriage) than ever before. Although the general zeitgeist suggests that it is mostly millennials who are populating this trend, based on data collected in 2016, there has been a 75% increase in cohabiting adults over the age of 50 since 2007.[1] No matter the age or the reason, there has been a definite increase in this trend.

While a marriage has widely understood legal rights and obligations, the legal parameters of simply living with a significant other can be confusing, especially as it varies state-by-state. Some states recognize “common law marriage,” which means that a couple may be recognized as legally married (with all its trappings), even without a ceremony or license.[2] Certain conditions have to be met, such having “acknowledge[ed] each other as husband and wife” for at least 3 years, with specific rules varying by state. However, most states do not recognize common law marriages. [3] Nevada is one of the states that does not.[4] This means that even if a person is in a long-term relationship, and they have been living together for many years, they are not considered legally married, and therefore do not have the rights and protections of a marriage. 

Don’t fret! While common law marriage is not explicitly recognized, case law and interpretation of the statutes over the years indicates that a legal marriage is not the sole governing factor in the division of property. A cohabitation agreement may be formed either verbally, in writing, or by a couples’ conduct (such as living and presenting themselves to others as married, pooling their resources, etc.), which would allow for the communal distribution of property.[5] However, the enforcement of such agreements is complicated, especially when there is no written agreement. Furthermore, these types of agreements still do not confer many of the other rights and obligations of legal marriages, such as alimony, the ability to collect federal benefits, and the right to inherit property from your partner without a will.[6]

Cohabitation is a complex topic. If you are in a committed, long-term relationship, but have no plans of marrying, it is important to have a discussion with your partner about not only your shared property, but also what to do if one person becomes incapacitated. Next, discussing your options with legal counsel will save you the confusion and headache in the future. It may not be an easy or comfortable topic, but it is an crucial one.

And finally, as we always say, “If you think you might need an attorney, you probably do.” Contact us before anything is set in stone. We love answering questions!


Sources:

[1] Stepler, Renee. (April 6, 2017). Number of U.S. adults cohabitating with partner continues to rise, especially among those 50 and older. Pew Research Center. Retrieved from http://www.pewresearch.org/fact-tank/2017/04/06/number-of-u-s-adults-cohabiting-with-a-partner-continues-to-rise-especially-among-those-50-and-older/.

[2] Common Law Marriage by State. (August 4, 2014) National Conference of State Legislatures. Retrieved from http://www.ncsl.org/research/human-services/common-law-marriage.aspx.

[3] Id.

[4] NRS 122.010.

[5] Western States Contr.  v. Michoff, 108 NEV. 931 (Nev. 1992).

[6] Nevada Same-Sex Marriages, Domestic Partnerships and Cohabitation Agreements. Las Vegas Defense Group. Retrieved from https://www.shouselaw.com/nevada/family/domestic-partnerships.