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New Cases of Interest - October 22, 2010
Hinerfeld-Ward, Inc. v. Lipian (2010) 188 Cal.App.4th 86. The court finds that a home improvement contract which was oral, and hence did not comply with the written notifications required by the Business and Professions Code, is nonetheless not automatically invalid. Each case is to be considered on its own terms, and in this case, the court concluded that under the circumstances presented, denying any recovery at all to the contractor would constitute unjust enrichment for the homeowners. The court further found that Civil Code Section §§3260(g) and 3260.1 authorized an attorney’s fee award to the contractor as a penalty to be assessed against the homeowners for wrongfully withholding a progress payment that was due under the oral agreement. Although the word “penalty” is used in Civil Code §3260.1(b) the court found that usage to be ambiguous and the court looked to the legislative history, and in doing so determined that the use of the word “penalty” also allowed for an award of attorney’s fees.
Vanderkous v. Conley (2010) 188 Cal.App.4th 111. This case has to do with the timing of a Request for Dismissal. In a lawsuit concerning title to real property, a motion had been submitted for decision, but not yet been decided at the time that plaintiff attempted to dismiss the action. The court held that such a dismissal is untimely under CCP §581(d). The court also had equitable authority under CCP §760.04(c) to provide compensation for an equitable interest which a former owner had in real estate even in the absence of a cross-complaint, if there was substantial evidence to support such a valuation.