Commercial leases sometimes contain an option allowing the tenant to purchase the property. If the option is properly exercised, an enforceable purchase and sale obligation is created, which can be enforced by the courts...more
If an LLC’s Operating Agreement contains a sufficiently broad arbitration clause, most disputes raised by the LLC’s members relating to the LLC will be sent to arbitration (instead of the court system) for resolution.
But...more
A right of first refusal is a contractual right to purchase property that arises when the owner decides to sell. The holder of a right of first refusal has a preference to purchase the property over other purchasers....more
As a litigator, whenever I am presented with a new contract dispute, one of the first things that I do is check whether the contract contains an arbitration clause or attorney fee clause. More consistently than any others,...more
Commercial leases often contain attorney fee provisions allowing a party who prevails in litigation to recover attorney fees from the losing party.
Can those attorney fee provisions apply to third parties — outsiders to...more
LLC managers owe fiduciary duties both to the LLC and to the LLC’s members, similar to the duties owed by a partner to other partners in a partnership. (Corp Code §17704.09.) These include the duty of loyalty, care, and...more
9/30/2021
/ Bankruptcy Court ,
Breach of Duty ,
Business Disputes ,
Business Litigation ,
Commercial Bankruptcy ,
Contract Terms ,
Exculpatory Clauses ,
Fiduciary Duty ,
Limited Liability Company (LLC) ,
Malfeasance ,
Operating Agreements ,
Personal Liability ,
Summary Judgment
Under California law, a grant deed is generally understood to transfer the entire fee title interest in real property, unless it expressly states otherwise. (See, e.g., Civil Code sections 1105 and 1113.) If the seller wants...more
8/30/2021
/ Action to Quiet Title ,
Agribusiness ,
Contract Terms ,
Easements ,
Farms ,
Grant Deed ,
Parking Lots ,
Pipelines ,
Property Owners ,
Real Estate Development ,
Real Estate Transactions ,
State and Local Government
An LLC Jungle post from last year addressed the issue of whether derivative claims can be pursued for a dissolved LLC. See: Can Derivative Claims be Pursued for a Dissolved or Cancelled LLC? The short answer is “yes.”...more
8/23/2021
/ Attorney's Fees ,
Breach of Contract ,
Business Litigation ,
Contract Terms ,
Corporate Dissolution ,
Derivative Suit ,
Disclosure ,
Fee Awards ,
Limited Liability Company (LLC) ,
Prevailing Party ,
Purchase Agreement ,
Real Estate Development ,
Real Estate Transactions
Most developers are familiar with the notion that under California’s Subdivision Map Act, the vesting tentative map statutes provide a way of fixing a developer’s rights. Put simply, obtaining a vesting tentative map allows...more
Most LLC operating agreements contain a “buyout” provision allowing the LLC or its remaining members to buy the membership interest of a departing member. Buyout provisions can be structured however the LLC members see fit. ...more
When any real estate investment deal goes badly and ends in litigation, there are many reasons why a potential plaintiff may prefer one forum versus another, including the location of witnesses and documents, location of...more
9/25/2020
/ Appeals ,
Choice-of-Law ,
Contract Terms ,
Conversion ,
Deed of Trust ,
Dismissals ,
Forum Selection ,
Investors ,
Joint Venture ,
Motions to Quash ,
Passive Investments ,
Personal Jurisdiction ,
Purposeful Availment Test ,
Reaffirmation ,
Real Estate Development ,
Real Estate Investments
LLC managers (or members vested with decision-making authority) are sometimes lulled into a false sense of security by “sole discretion” provisions in their LLC’s operating agreement. That can be a costly mistake....more
In the world of eminent domain, compensation for “lost goodwill” is often a tricky and contentious issue. New opinions from the Court of Appeal addressing goodwill tend to get a lot of attention....more
In California, a holdover tenant (a tenant who remains in possession after the expiration of the written lease) has fewer rights than a tenant operating under a lease....more
3/27/2019
/ Appeals ,
Commercial Leases ,
Commercial Tenants ,
Contract Terms ,
Demurrers ,
Dismissals ,
Expiration Date ,
Holdover Occupants ,
Landlords ,
Reaffirmation ,
Right of First Refusal ,
Third-Party ,
Unenforceable Contract Terms
It is no secret that LLC managers enjoy a lot of discretion regarding how they operate the LLC. Members of the LLC often find it difficult to challenge the manager’s decisions on key transactions, investments, and other...more
1/14/2019
/ Appeals ,
Contract Terms ,
Covenant of Good Faith and Fair Dealing ,
DE Supreme Court ,
Discretionary Functions ,
Fiduciary Duty ,
Inherent Authority ,
Limited Liability Company (LLC) ,
Managers ,
Members ,
Operating Agreements ,
Selling a Business
Lenders who prevail on claims arising from a deed of trust can always recover their attorney fees from the losing party as long as the deed of trust says something about fee recovery, right?
It’s not that simple....more
11/30/2018
/ American Rule ,
Anti-Deficiency Provisions ,
Appeals ,
Attorney's Fees ,
Borrowers ,
Contract Terms ,
Debt ,
Deed of Trust ,
Demurrers ,
Fee Agreements ,
Foreclosure ,
Lenders ,
Mortgage Lenders ,
Mortgages ,
Non-Signatories ,
Prevailing Party ,
Summary Judgment
Guarantors of loans occupy a vulnerable position under California law.
While direct borrowers often benefit from California’s robust statutory anti-deficiency framework, those protections are often unavailable for...more
9/1/2018
/ Anti-Deficiency Provisions ,
Bad Faith ,
Commercial Bankruptcy ,
Contract Terms ,
Default ,
Equitable Defenses ,
Estoppel ,
Fraud ,
Guarantors ,
Laches ,
Lenders ,
Loans ,
Mitigation ,
Public Policy ,
Remedies ,
Unclean Hands ,
Unjust Enrichment ,
Waivers ,
Willful Misconduct