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  • May 13, 2020 08:45:54 PM

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What is an Answer to a Partition Action?

Answer to a Partition Action Complaint in California When an action for partition is filed, the opposing party has an opportunity to respond to this action by filing an answer. An answer to a partition action is a pleading by the defendant in response to the plaintiff’s complaint for partition. In the answer, defendants have ... Read...

What Is an Answer to a Partition ActionWhat Is an Answer to a Partition Action

Answer to a Partition Action Complaint in California

When an action for partition is filed, the opposing party has an opportunity to respond to this action by filing an answer. An answer to a partition action is a pleading by the defendant in response to the plaintiff’s complaint for partition.

In the answer, defendants have an opportunity to address the allegations contained in the plaintiff’s partition action complaint. If the partition complaint is verified, each paragraph in the complaint must be addressed in the answer. Defendants can admit the allegations, deny the allegations, claim they have insufficient knowledge to admit or deny the allegations, or object to allegations by giving a reason for the objection.

Partition Action Answers – Affirmative Defenses to Partition Actions

Objections are usually followed by alleging one or multiple affirmative defenses to a partition action. Plaintiffs may have stated the facts incorrectly in their partition complaint, or there may be an explanation for plaintiffs’ allegations.

Waiver of Right to Partition in Partition Answer

Furthermore, if partition of the property has been waived, this waiver to partition should be addressed in the partition answer to prevent further costly proceedings. As one court explained: “A co-owner of property has an absolute right to partition unless barred by a valid waiver.” Orien v. Lutz (2017) 16 Cal.App. 5th 957, 962 (citing Code Civ. Proc. § 872.710(b) (“partition as to concurrent interests in the property shall be as of right unless barred by a valid waiver”)); see, e.g., Pine v. Tiedt (1965) 232 Cal. App. 2d 734; American Medical International, Inc. v. Feller (1976) 59 Cal.App. 3d 1008, 1014. Waiver is exceedingly rare in co-ownership agreements in California, so if one exists, it is important to address this as soon as possible. There are different perspectives on whether waiver is an affirmative defense to a partition of whether the lack of waiver is an element of the the plaintiff’s partition action.

Drafting an answer to a partition complaint that is as successful as possible requires the insight of an attorney. We highly recommend connecting with an experienced partition lawyer who has extensive knowledge drafting answers in partition actions.


120-Day Deadline Applies Only to Actions to Contest a Trust [Probate Code 16061.8]

120-Day Deadline in Probate Applies Only to Actions to Contest a Trust Many attorneys attempt to confuse trust beneficiaries and other parties by claiming that the 120-day deadline to contest a trust applies to actions not barred by this deadline. Specifically, California Probate Code 16061.8 states that: “No person upon whom the notification by the ... Read...

120 Days to Bring an Action to Contest a Trust Probate Code 16061.8 Talkov Law120 Days to Bring an Action to Contest a Trust Probate Code 16061.8 Talkov Law

120-Day Deadline in Probate Applies Only to Actions to Contest a Trust

Many attorneys attempt to confuse trust beneficiaries and other parties by claiming that the 120-day deadline to contest a trust applies to actions not barred by this deadline.

Specifically, California Probate Code 16061.8 states that: “No person upon whom the notification by the trustee is served pursuant to this chapter, whether the notice is served on him or her within or after the time period set forth in subdivision (f) of Section 16061.7, may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him or her, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to him or her during that 120–day period, whichever is later.” Cal. Prob. Code § 16061.8.

The statute establishes that an “action to contest the trust” must be brought up within 120 days. A “contest” is defined as “a pleading filed with the court by a beneficiary that would result in a penalty under a no contest clause, if the no contest clause is enforced.” Cal. Prob. Code § 21310(a).

Accordingly, the 120-day limit seemingly applies only to trust contests, not other issues such as concerns over omitted assets. The most common form of a trust contest would be to allege that the trust is not the operative trust because, for example, it had been amended, the signature had been forged, the trustee lacked capacity, or the trustee was under undue influence.

By contrast, raising concerns about omitted assets (via a Heggstad petition, for example) or claiming that the trustee stole assets during the decedent’s lifetime are seemingly not considered a trust contest and therefore are not barred by the 120 day rule defined by Probate Code 16061.8.

Similarly, in Estate of Stoker (2011) 193 C.A. 4th 236, the court held that a 120-day notice is only allowed once a revocable trust becomes irrevocable and thus does not apply to a trust that has been revoked.

Consult with a Trust Litigation Attorney

Many people, even seasoned attorneys, may erroneously believe that the 120 day limit is applicable to issues beyond trust contests. However, there is no clear authority stating that the 120 day period applies to anything besides contests.

The Trusts, Estate, & Probate Litigation Attorneys at Talkov Law practice in the areas of:


What is the Difference Between a Mortgage and a Trust Deed?

How is a Mortgage Different from a Trust Deed? A mortgage and deed of trust (otherwise known as a “trust deed”) are legal instruments in real estate that allow a lender to secure repayment of a loan. Although a mortgage and a trust deed serve the same purpose, the exact terms of both of each ... Read...

Mortgage vs Trust Deed Real Estate LawyerMortgage vs Trust Deed Real Estate Lawyer

How is a Mortgage Different from a Trust Deed?

A mortgage and deed of trust (otherwise known as a “trust deed”) are legal instruments in real estate that allow a lender to secure repayment of a loan. Although a mortgage and a trust deed serve the same purpose, the exact terms of both of each varies. The real estate attorneys at Talkov Law are deeply familiar with the intricacies of both and can explain each in more detail.

What is a Mortgage?

A mortgage is an agreement between a borrower and a lender to purchase real property wherein the borrower agrees to repay the lender over time, usually over monthly installments. The property serves as collateral for the loan in the event that the borrower defaults on the loan. Unlike a judgment lien, a mortgage is a type of voluntary lien against a property.

If a borrower fails to make timely payments, the lender may foreclose on the property, which is usually followed by evicting the residents, then selling the property.

What is a Deed of Trust?

A trust deed serves the same purpose as a mortgage – both are methods of using a piece of property as collateral to secure a loan. However, unlike a mortgage, a deed of trust requires 3 parties: a beneficiary, a trustor, and a trustee.

Beneficiary: A beneficiary, also known as a lender, is the legal entity that lends the borrower the money for the property. The beneficiary will be repaid the event of a foreclosure.

Trustor: The trustor is the person (or people) who borrowed the money, also known as the borrower.

Trustee: The trustee is the neutral, third party who will eventually release the loan once it is fully paid or, in the event it is not paid, will proceed with the foreclosure process. A trustee is usually a title or escrow company.

A trust deed also works in conjunction with a promissory note. The promissory note contains all relevant information related to the loan and is held by the beneficiary until the loan is completely paid off. Only the trust deed itself, not the promissory note, need be recorded with the county clerk.

An important distinction between a “deed” (such as a grant deed or a quitclaim deed) and a “deed of trust” is that a deed of trust does not transfer ownership of a real property like a typical deed does. Similarly, a “trust deed” has nothing to do with living trusts. The term “trust deed” is quite the misnomer as the trustee is often said to hold only naked title, holding no true (equitable) ownership of the property.

Similarities Between a Mortgage and a Trust Deed

Both a mortgage and a trust deed are agreements in which a borrower agrees to pay back a specific amount of money and a lien is placed on a borrower’s property to ensure repayment. Importantly, neither a mortgage nor a trust deed are loans on their own.

Both also give the lender the ability to reclaim the home via a foreclosure. The specifics vary between the two, but both a mortgage and a trust deed allow a lender to foreclose on the home, sell it, and pay off the remaining balance on the loan.

Differences Between a Mortgage and a Deed of Trust

There are a few key differences between mortgages and deeds of trust.

First, a trust deed is different from a mortgage in the number of parties involved in the contract. A mortgage has two parties: a lender and a borrower. A trust deed has three parties: a beneficiary (lender), a trustor (borrower), and a neutral, third party known as the trustee (usually a title or escrow company).

Next, in the event of nonpayment of the loan, the foreclosure type is different in a mortgage than it is in a trust deed. A mortgage involves judicial foreclosure initiated by a lender. By contrast, a nonjudicial foreclosure usually occurs with a deed of trust. Nonjudicial foreclosures are the most common foreclosure process in California.

Finally, the length of time and expense for a judicial foreclose and a nonjudicial foreclosure vary drastically. A judicial foreclosure that occurs with a mortgage consists of the lender going to court to get a deficiency judgment to foreclose on a home. This may lead to a time consuming and expensive foreclosure process. On the other hand, a nonjudicial foreclosure that occurs with a trust deed is instead performed by the trustee (usually an escrow company). The trustee has the authority to sell the home and pay off any remaining loan balance if the borrower defaults without going to court. This process is almost always less expensive and time consuming than a judicial foreclosure.

Contact a Real Estate Attorney

This is just a broad overview of the differences between mortgages and deeds of trust. You should be sure to carefully review your mortgage or deed of trust documents carefully, preferably with a loan advisor, real estate agent, or a real estate litigation attorney. Those who are deeply familiar with such documents can help you better understand the specifics of your home purchase contract, whether it be a mortgage or a trust deed.

The experienced real estate attorneys at Talkov Law are skilled in the areas of:


Civil Code § 683.2(c) – Joint Tenancy Severance After Death is Limited by California Law

By definition, a joint tenancy is an interest in property in which each party has an equal share in the property. Joint tenants also enjoy the privilege of the right of survivorship, which allows a deceased joint tenant’s interest in a property to automatically pass to the surviving joint tenant(s). If the interest is transferred ... Read...

Civil Code § 683.2(c) - Joint Tenancy Severance After Death is Limited by California LawCivil Code § 683.2(c) - Joint Tenancy Severance After Death is Limited by California Law

By definition, a joint tenancy is an interest in property in which each party has an equal share in the property. Joint tenants also enjoy the privilege of the right of survivorship, which allows a deceased joint tenant’s interest in a property to automatically pass to the surviving joint tenant(s). If the interest is transferred to a third party, a joint tenancy will be severed and convert into a tenancy in common, another type of co-ownership in California. This issue commonly arises in California partition actions along with other areas of family law and trust and estate law.

However, the law imposes certain requirements on severing a joint tenancy to ensure that joint tenants do not play games with the survivorship element of the joint tenancy. These rules require that the document severing the joint tenancy, usually a deed, is recorded during the lifetime of the non-surviving joint tenant.

If there were no rules requiring that the document severing the joint tenancy be recorded, a joint tenant could hand a deed to the property to their grantee (e.g., an heir, such as a child) and tell them to place it in a drawer then tell the grantee to record the deed only if that joint tenant dies before their other joint tenant(s). In this scenario, the joint tenant would evade the detriment of their estate losing an interest in the property upon their death.

Conversely, that joint tenant could tell their grantee to throw that deed in the trash if the joint tenant outlives the other joint tenant. In that scenario, the joint tenant would then become the full owner, thereby gaining the benefits of joint tenancy without having suffered the detriment of losing their interest had they died first.

California law has solved this problem by requiring all documents severing a joint tenancy to be recorded during the lifetime of the severing joint tenant or recorded within 7 days after the death of the joint tenant provided the severance was executed within 3 days before their death, i.e., a deathbed will.

This requirement is found in California Civil Code § 683.2 requires written evidence of the intention to sever the joint interest (usually a deed from the joint tenant to themselves as a tenant in common) signed by that joint tenant so long as one of the following two circumstances applies:

(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.

(2) The deed, written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.

California Civil Code § 683.2(c).

As one secondary source explains: “If the client’s decision to sever the joint tenancy is final, good practice requires prompt recordation of the severance. Otherwise, the attorney bears the risk of the severing client’s untimely death.”[1]1 Cal. Transactions Forms–Est. Planning § 1:21

What this means is that an instrument unilaterally severing a joint tenancy with right of survivorship is not effective unless it is executed and notarized no earlier than three days before a deceased joint tenant’s death and recorded in the county where the property is located no longer than seven days after the death of this deceased joint tenant. Failure to meet one or both of these timelines will result in execution and/or recordation of an invalid deed. An invalid deed is insufficient to terminate a joint tenancy and a right of survivorship.

For example, in Dorn v. Solomon (1997) 57 Cal. App. 4th 650, 651, a widower who held property as “husband and wife, as joint tenants,” filed suit seeking declaratory relief and cancellation of a quitclaim deed as a result of the decedent spouse having “executed a quitclaim deed purporting to transfer the family home” where the defendant “did not record the deed until a month after [the decedent spouse] died….” Noting that “subdivision (c)(2) of section 683.2 explicitly provides that the deed must be recorded ‘not later than seven days after the death of the severing joint tenant,’” the court found that the deed “was invalid under this section.”

Furthermore, a joint tenancy cannot be terminated by a will. Rather: “A will that purports to terminate a joint tenancy is not an effective severance of the joint tenancy, and the other joint tenant retains the right of survivorship.” [2]Miller & Starr, Methods and effect of termination—Termination by conveyance, 4 Cal. Real Est. (4th ed.) § 11:28 (citing Estate of England (1991) 233 Cal.App. 3d 1, 5–6)

Indeed, without these required timelines, joint tenants would be able to abuse their right of survivorship privileges. They would be able to transfer their interest to a third party, thereby severing the joint tenancy, but tell the third party to hold that deed. Then, if the joint tenant who gifted their interest to the third party dies first, the surviving joint tenant could rip up the deed, obtain the deceased joint tenant’s interest by way of rights of survivorship, and the third party would be left with nothing.

If you have encountered a dispute over the termination of joint tenancy, contacted the experienced real estate attorneys and partition lawyers in California at Talkov Law at (844) 4-TALKOV (825568).

The experienced real estate attorneys at Talkov Law are skilled in the areas of:

References

References
1 1 Cal. Transactions Forms–Est. Planning § 1:21
2 Miller & Starr, Methods and effect of termination—Termination by conveyance, 4 Cal. Real Est. (4th ed.) § 11:28 (citing Estate of England (1991) 233 Cal.App. 3d 1, 5–6)


California Bankruptcy Exemptions – 704 vs. 703?

Bankruptcy Exemptions in California Filing for Chapter 7 bankruptcy in California is a powerful tool that can relieve debtors of unsecured debts and provide a fresh start. Many people assume that bankruptcy involves creditors taking all their personal property, especially their home and vehicle. However, California bankruptcy exemptions allow debtors to maintain possession of certain ... Read...

California Bankruptcy Exemptions Talkov LawCalifornia Bankruptcy Exemptions Talkov Law

Bankruptcy Exemptions in California

Filing for Chapter 7 bankruptcy in California is a powerful tool that can relieve debtors of unsecured debts and provide a fresh start. Many people assume that bankruptcy involves creditors taking all their personal property, especially their home and vehicle. However, California bankruptcy exemptions allow debtors to maintain possession of certain personal property when filing for bankruptcy. While this guide provides a broad outline, it is important to contact an experienced California bankruptcy attorney who can guide you through the bankruptcy process and maximize your bankruptcy exemptions without making a costly mistake

What is a Bankruptcy Exemption?

A bankruptcy exemption allows a debtor to keep property that would otherwise be sold to pay creditors. For example, in Chapter 7, all property of the debtor is liquidated by a bankruptcy trustee to pay creditors. However, the Chapter 7 Trustee is not permitted to liquidate property of the debtor that will not produce a benefit to the bankruptcy estate. This means that if the value of the asset is lower than the amount of the exemption, the trustee will not sell the property, but will instead let the debtor keep that asset. Due to California’s generous exemptions, about 95% of bankruptcies are “no asset” cases where no assets are sold, creditors receive nothing, and the debtor keeps everything they own.

Residency Requirement to Claim California Exemptions

To file for bankruptcy in California, you must first meet the residency requirement by having lived in California continuously for at least 2 years prior to filing for bankruptcy. If you lived in more than one state during the last 2 years, speak to a bankruptcy attorney on how to file while maximizing your exemptions.

Choosing Between California’s Two Sets of Exemptions – 704 vs. 703

California is the only state that has two separate sets of exemptions, according to Nolo.com, but debtors are only permitted to pick one set. One set is known as the “704 Exemptions”, which are generally a better fit for those with substantial home equity. The second set of exemptions is known as the “703 Exemptions”, which allows for a “wildcard exemption.” This is usually a better fit for those who do not own real property or who have less home equity. Property is generally exempt up to a certain dollar amount, as specified in the applicable bankruptcy code for each set.

The 704 Exemptions in California Bankruptcy

704 Exemptions, aptly named after Code of Civil Procedure Section 704.XXX, are most commonly used by homeowners with substantial home equity.

Homestead Exemption

Under 704 Exemptions, debtors are entitled to protect the equity in their home under California’s recently updated homestead exemption. Between $300,000 and $600,000 (depending on the location of the home) in equity may be protected under the generous new homestead exemption. However, special rules apply as explained in our article on the California homestead exemption published in the Los Angeles Lawyer Magazine.

Motor Vehicle

Vehicles are protected up to $3,325 (combined, for all vehicles). Cal. Code Civ. Proc. 704.010

Household Furnishings, Apparel, Personal Effects

These items are exempt if they are “ordinarily and reasonably necessary to, and personally used or procured for use by, the judgment debtor and members of the judgment debtor’s family at the judgment debtor’s principal place of residence.” Cal. Code Civ. Proc. 704.020. However, if an item is not “ordinarily found in a household” or it has “extraordinary value,” it may not be exempt.

Materials Used for Repair or Improvement

Materials that are purchased in good faith to be used to repair, maintain, or improve a principal place of residence are exempt up to $3,500. Cal Code Civ. Proc. 704.030

Jewelry, Heirlooms, and Works of Art

Such items are exempt up to $8,725. Cal. Code Civ. Proc. 704.040

Health Aids and Prosthetic & Orthopedic Appliances

Health aids are exempt so long as they are “reasonably necessary to enable the judgment debtor or the spouse or a dependent of the judgment debtor to work or sustain health.” Cal. Code Civ. Proc. 704.050

Items Required for the Trade, Business, or Profession

Items such as “tools, implements, instruments, materials, uniforms, furnishings, books, equipment, one commercial motor vehicle, one vessel, and other personal property” are exempt up to $8,725 if they are “reasonably necessary to and actually used by the judgment debtor in the exercise of the trade, business, or profession by which the judgment debtor earns a livelihood.” Cal. Code Civ. Proc. 704.060. The exemption is twice that amount ($17,450) if both the debtor and the debtor’s spouse are in the same trade, business, or profession and require said items. This section also provides an exemption for a commercial motor vehicle in the amount of $4,850.

Wages

Debtors may exempt certain wages that were paid to him or her in the 30 days prior to the bankruptcy filing. Civ. Proc. Code § 704.070

Pensions

Pensions, including both public and private retirement accounts, and annuities are exempt. Cal. Code Civ. Proc. 704.110 and 704.115.

Public Benefits

$1,750 for single debtors, $2,600 for married debtors filing jointly. Cal. Code Civ. Proc. 704.080

Social Security Benefits

$3,500 for single debtors, $5,250 for married debtors filing jointly. Cal. Code Civ. Proc. 704.080

Life Insurance

Unmatured life insurance policies are completely exempt. The loan value of such policies, however, is only exempt up to $13,975. Cal. Code Civ. Proc. 704.100

The 703 Exemptions (Wildcard Exemption) in California Bankruptcy

703 Exemptions, also known as “wildcard” exemptions, may be a better choice for those who are more interested in protecting personal property and who don’t own a home. “Wildcard” refers to the ability to protect various forms of property that may not be protected under the 704 exemptions.

Wildcard Exemption in California Bankruptcy

Anything that does not fit another exemption category or goes over the maximum exemption amount in that category may be exempted up to $1,550, plus any unused homestead exemption amount, adding up to $30,825 for single debtors as of 2021. Cal. Code Civ. Proc. 703.140(b)(5)

Homestead Exemption

Exemption in homestead property is up to $29,275, though every dollar used on this exemption decreases the remaining available wildcard exemption. Cal. Code Civ. Proc. 703.140(b)(1)

Motor Vehicle

Vehicles are protected up to $5,850 (combined, for one or more vehicles). Cal. Code Civ. Proc. 703.140(b)(2)

Household Furnishings, Goods, Misc.

Items such as “household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments” may be exempted up to $725. Cal. Code Civ. Proc. 703.140(b)(3)

Jewelry

Jewelry that is “held primarily for the personal, family, or household use” is protected up to $1,750. Cal. Code Civ. Proc. 703.140(b)(4)

Health Aids and Prosthetic & Orthopedic Appliances

Health aids that are professionally prescribed are completely exempt. Cal. Code Civ. Proc. 703.140(b)(9)

Tools, Books, and Implements of Trade

Such items are protected up to $8,725. Cal. Code Civ. Proc. 703.140(b)(6)

Pensions

Federal nonbankruptcy exemptions allow for retirement savings accounts (such as a 401(k) or 403(b)) to be completely exempt and for IRAs and Roth IRA’s to be exempt up to $1,362,800.

Public Benefits

Unemployment, veterans’ benefits, disability, workers’ compensation, crime victims’ reparation benefits, and Social Security benefits are completely exempt.

Life Insurance

Unmatured life insurance policies (other than credit life insurance contacts) are completely exempt. However, “any accrued dividend or interest under, or loan value of, any unmatured life insurance contract” is only exempt up to $15,650. Cal. Code Civ. Proc. 703.140(b)(8)

Other Exemptions

Note that this list contains only the most common exemptions. There are many others not discussed in this article due to their uncommon use by debtors in California bankruptcies.

Note: Federal Exemptions are Not Available Given that California is an Opt-Out State

Note that California is an “opt-out” state, meaning that anyone filing for bankruptcy in California is restricted to using only the California bankruptcy exemptions. Luckily, California’s bankruptcy exemptions are overall more generous than federal bankruptcy exemptions. Federal bankruptcy exemptions are not available to those who file for bankruptcy in California; however, federal nonbankruptcy exemptions (that is, federal exemptions that exist outside of the Bankruptcy Code) may still be available to certain groups of people.

Contact Talkov Law’s Knowledgeable Bankruptcy Attorneys

Bankruptcy is a chance to start anew: a fresh start for anyone who may be in over their heads. The attorneys at Talkov Law understand that bankruptcy process can be confusing and grueling. We have provided this list of California’s bankruptcy exemption sets for you to review with an experienced bankruptcy attorney who can help you better understand your options. To speak with one of Talkov Law’s bankruptcy attorneys, call (844) 4-TALKOV (825568) or contact us online.

This blog post has been updated as of 07/30/21. Because the dollar amount of bankruptcy exemptions may change at any time, we cannot guarantee this information has been updated to accurately reflect the current exemption amount. Exemptions are extremely important in bankruptcy such that it crucial to have these matters reviewed by an experienced bankruptcy lawyer in California. Due to the damages that can result when an exemption is denied, this article is not intended for use by non-lawyers, bankruptcy petition prepares, self represented litigants or otherwise.

The bankruptcy attorneys at Talkov Law are skilled in the areas of:


Can You Sue an Attorney for Doing their Job? [Anti-SLAPP Protection for Litigation-Related Activities]

Can an Attorney Be Sued for Representing a Client in Litigation? It may sound ridiculous, but attorneys (or their law firms) are sometimes tacked on as defendants in a complaint. Is this legal? Can another attorney do this? Talkov Law’s attorneys explain how anti-SLAPP law prevents this and the devastating legal repercussions of including a ... Read...

Can You Sue a Law Firm for Doing Its Job Talkov LawCan You Sue a Law Firm for Doing Its Job Talkov Law

Can an Attorney Be Sued for Representing a Client in Litigation?

It may sound ridiculous, but attorneys (or their law firms) are sometimes tacked on as defendants in a complaint. Is this legal? Can another attorney do this? Talkov Law’s attorneys explain how anti-SLAPP law prevents this and the devastating legal repercussions of including a law firm to a list of defendants.

Two Prongs of a California Anti-SLAPP Motion

Anti-SLAPP statutes are meant to encourage public participation and prevent the justice system from being used as a weapon to prevent free speech. California’s anti-SLAPP statute states, in part, that: “it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Cal. Civ. Proc. Code § 425.16.

Furthermore, an anti-SLAPP motion must meet two distinct requirements: in the first step or prong, the defendant must show that the conduct underlying the plaintiff’s cause of action, or portions of the cause of action that are asserted as grounds for relief, arises from the defendant’s constitutional rights of free speech or petition. Cal. Code Civ. Proc. § 425.16(b)(1); see Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. In the second prong or step, the burden shifts to the plaintiff to prove that the plaintiff has a legally sufficient claim and to prove with “admissible evidence” a “probability” that the plaintiff will prevail on the claim. Navellier v. Sletten (2002) 29 Cal. 4th 82, 88–89.

First Prong: Anti-SLAPP Statutes Preserve Attorneys’ Litigation-Related Activities

These anti-SLAPP requirements include protection from attempts to silence or otherwise prevent attorneys from petitioning the government, a quintessential tenet of free speech. As Rutter explains, an “attorney giving advice to client and corresponding with opposing counsel were ‘unquestionably protected activities’ under the anti-SLAPP statute.” Litigation-related activities broadly protected, Anti-SLAPP Litigation (The Rutter Group) § 3:31 (quoting Contreras v. Dowling (2016) 5 Cal.App. 5th 394). Rutter quotes the 2016 opinion in Contreras v. Dowling (2016) 5 Cal.App. 5th 394, 409, as modified on denial of reh’g (Nov. 18, 2016), where the Court of Appeal made crystal clear that: “An attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike,” meaning that “allegedly tortious activity centered in defendants’ role as counsel was protected litigation activity.”

“A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 [special] motion to strike. ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. This includes qualifying acts committed by attorneys in representing clients in litigation.” Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App. 4th 141, 154. “In fact, courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ …Cases construing the anti-SLAPP statute hold that ‘a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.’ Consequently, because settlement negotiations are regarded as an exercise of the right to petition, communications during such negotiations are regarded as having been made in connection with the underlying lawsuit for purposes of section 425.16, subdivision (e)(2).” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14. Courts have even explained that: “The protection of the anti-SLAPP statute applies ‘even against allegations of fraudulent promises made during the settlement process.’” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14.

These authorities provide convincing arguments that most of what attorneys do in the course of representing a client should be deemed protected activity, thereby meeting the first prong.

Second Prong: Anti-SLAPP Statutes Require a Probability of Prevailing

On the second prong, the plaintiff bears the burden of “establish[ing] that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16. Lacking the “probability” of prevailing on the claim establishes the second prong, which allows a defendant to hold a plaintiff liable for attorney’s fees as the prevailing party on the Anti-SLAPP statute.

Recovering Attorney’s Fees Incurred in Filing an Anti-SLAPP Motion

Filing an anti-SLAPP motion in response to a SLAPP complaint can be used not only to defeat the complaint, but also to hold the plaintiff liable for paying the entirety of the defendant’s attorney’s fees if the defendant prevails. In fact, the defendant’s attorney may even be entitled to a fee enhancement from the plaintiffs. Ketchum v. Moses (2001) 24 Cal. 4th 1122.

Privileged Publication

Furthermore, litigation-related activities fall under the scope of a privileged publication, which is a protected publication made as part of an official duty. California Civil Code § 47 defines a privileged publication as one that is made:

(a) In the proper discharge of an official duty.

(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:

(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.

(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.

(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.

(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.

That statute makes clear that a “judicial proceeding” (aka a litigation-related activity) is considered a privileged, and therefore protected, activity.

Contact a Knowledgeable Anti-SLAPP Attorney in Los Angeles, Orange County, San Diego, Riverside, San Bernardino, San Jose, Sacramento, and Surrounding Areas in California

Attorneys choosing to include another attorney who is doing his or her job as a legal professional must be aware of the consequences. Anti-SLAPP statutes strongly discourage suing attorneys or law firms, and there are dire consequences related to adding another attorney or law firm as a defendant in a complaint. If you have been sued while representing a client or are looking for more guidance on anti-SLAPP statutes, the attorneys at Talkov Law can help. Contact us today either online or by phone at (844) 4-TALKOV (825568)

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