Anti-SLAPP Motion Fails When Plaintiff Makes a Showing That the Petitioning Activity Was a Breach of Contract
Midland Pacific Building Corp. v. King (11/28/07, 2d Civil No. B192017, Second Dist.)
12 p. opinion
Rehearing Opinion
157 Cal.App.4th 264
A developer brought suit against a landowner for breach of contract and fraud. The contract had provided that the landowner would obtain City approval of a draft tract map.
After the landowner presented a different, higher density tract map for approval at a planning commission hearing, the developer sued for breach of contract and fraud. The landowner brought an anti-SLAPP motion, arguing the suit was brought in response to the landowner's statements at an official proceeding in furtherance of his right of petition and free speech.
The Court of Appeal found that the breach of contract cause of action arose out of the petitioning activity. Indeed, the petitioning activity was the primary obligation of the landowner under the contract. However, it also found that the developer had shown a probability of prevailing.
The fraud cause of action was based upon private communications between the parties and therefore not based upon protected activity.
The anti-SLAPP motion had been correctly denied.
Presiding Justice Gilbert wrote the opinion. Justices Yegan and Coffee concurred.
Showing posts with label real estate. Show all posts
Showing posts with label real estate. Show all posts
Wednesday, November 28, 2007
Monday, August 27, 2007
No Enforcable Option for Real Estate Purchase Due to Absence of Essential Terms
Judgment for Specific Performance Reversed Because Dispute About Time and Manner of Payment Prevented the Court From Applying the Rule of Reasonable Time and Manner
Patel v. Libermensch (Aug. 21, 2007, Fourth Dist., Div. One, D048582)
27 page opinion
UPDATE: REVIEW GRANTED (On Nov. 14 the Supreme Court granted review) (S156797)
Liebermensch appealed from a judgment ordering specific performance of a real estate option contract. Liebermensch and Patel had entered into a lease and an option contract for a condominium. Liebermensch drafted both contracts. When Patel notified Liebermensch that he was exercising the option to purchase the property, Liebermensch drafted a real estate purchase agreement with terms of the manner and time of payment. Patel sent back a draft purchase agreement that altered those terms. Liebermensch did not accept Patel's draft. Patel signed Liebermensch's draft but negotiations stopped.
To be enforceable an option contract must state the term of the option and contain the terms essential for the ultimate sales contract - identification of the parties, identification of the property, the purchase price, and the time and manner of payment.
Some California cases have held that contracts for the sale of real estate were not unenforceable for a failure to specify the time of payment because the law implies a reasonable time. In this action, however, the Court of Appeal found that the evidence showed the time and manner of payment always remained in dispute and that those disputed terms were deal-breakers for both parties.
Justice Huffman wrote the opinion. Presiding Justice McConnell concurred.
Judge McIntyre dissented.
Patel v. Libermensch (Aug. 21, 2007, Fourth Dist., Div. One, D048582)
27 page opinion
UPDATE: REVIEW GRANTED (On Nov. 14 the Supreme Court granted review) (S156797)
Liebermensch appealed from a judgment ordering specific performance of a real estate option contract. Liebermensch and Patel had entered into a lease and an option contract for a condominium. Liebermensch drafted both contracts. When Patel notified Liebermensch that he was exercising the option to purchase the property, Liebermensch drafted a real estate purchase agreement with terms of the manner and time of payment. Patel sent back a draft purchase agreement that altered those terms. Liebermensch did not accept Patel's draft. Patel signed Liebermensch's draft but negotiations stopped.
To be enforceable an option contract must state the term of the option and contain the terms essential for the ultimate sales contract - identification of the parties, identification of the property, the purchase price, and the time and manner of payment.
Some California cases have held that contracts for the sale of real estate were not unenforceable for a failure to specify the time of payment because the law implies a reasonable time. In this action, however, the Court of Appeal found that the evidence showed the time and manner of payment always remained in dispute and that those disputed terms were deal-breakers for both parties.
Justice Huffman wrote the opinion. Presiding Justice McConnell concurred.
Judge McIntyre dissented.
Subscribe to:
Posts (Atom)
