Webinar: Why California Contractors Fail To Enforce Mechanic's Liens

On September 10, 2020 Treg Julander presented a webinar in connection with Levelset entitled “Why California Contractors Fail To Enforce Mechanic’s Liens.” During the webinar Treg discusses how to enforce a mechanics lien in California and answers numerous questions.

Reviews of Webinar Presentation

“Very good talk on enforcing mechanic’s liens. Mr. Julander did a good job of explaining a complicated subject. His slides were well done and very explanatory. He also did an excellent job answering people’s questions.”

- C. Curt

“Helpful. I help my husband with our construction business and this information was helpful and easy to understand.” - Gina

Blog Post: IS YOUR WEBSITE CAUSING YOUR AUTOMATIC RENEWAL OFFER TO CREATE GIFTS FOR YOUR CALIFORNIA SUBSCRIBERS?

The latest targets of predatory lawyers in California are companies who market goods in California through subscription-based services that allegedly fail to comply with the technical requirements of the California Automatic Renewal Law. (B&P Code, §§ 17600, et seq.) If you find yourself on the receiving end of a demand letter seeking to extract a five-figure settlement under the threat of a class action on behalf of all of your California customers, it may be too late.
The California Automatic Renewal Law requires any automatic renewal offer to a consumer to comply with various content and style requirements. Any goods sent to a California customer under a continuous service agreement in violation of the statute may be deemed for all purposes to be “an unconditional gift to the consumer.” (B&P Code, § 17603.) Accordingly, you could be forced to refund to each of your California customers all the revenues collected from them regardless of whether or not any consumer was deceived or did not understand the terms of the automatic renewal.
Under the Automatic Renewal Law, an automatic renewal offer in California must:

  • disclose the following in the automatic renewal offer:

    • that the subscription or purchasing agreement will continue until the consumer cancels;

    • the description of the cancellation policy that applies to the offer;

    • the recurring charges that will be charged to the consumer’s credit or debit card, and that the amount of the charge may change, if that is the case, and the amount to which the charge will change, if known;

    • the length of the automatic renewal term or that the service is continuous, unless the length of the term is chosen by the consumer; and

    • the minimum purchase obligation, if any.

  • present the automatic renewal offer terms in a clear and conspicuous manner—in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language—before the subscription agreement is fulfilled and in visual proximity to the request for consent to the offer;

  • obtain the consumer’s affirmative consent to the agreement containing the automatic renewal offer terms before charging the consumer’s credit or debit card;

  • provide an acknowledgment that includes the automatic renewal offer terms, cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer, which may be fulfilled after completion of the initial order; and

  • provide a toll-free telephone number, electronic mail address, a postal address only when the seller directly bills the consumer, or another cost-effective, timely, and easy-to-use mechanism for cancellation that shall be described in the acknowledgment.

The requirements of the Automatic Renewal Law are complex, and the stakes are high for an alleged violation. An attorney with experience in statutory compliance can be a helpful resource to ensure that the automatic renewal offer on your website is not creating an unconditional gift to your California subscribers.

Blog Post: HOW TO LOSE YOUR CALIFORNIA APPEAL AT TRIAL

The primary role of the California Courts of Appeal is to review error. Accordingly, an argument or objection not made in the trial court is waived on appeal. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488 fn.3 [“It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.”]; Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 668 fn. 6; Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 332.) 

The rule barring new arguments on appeal is founded on considerations of fairness to the opposing party and the orderly and efficient administration of justice. (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 587.) Permitting new arguments on appeal would deprive the trial courts and the parties of the opportunity to correct errors and would require the appellate courts to spend valuable resources to address purported errors that could have been corrected in the trial court had an objection been made. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771,799-800.)

Stated another way, a party that fails to make an objection or argument in the trial court invites the error. A party that induces the commission of error is estopped from asserting an invited error on appeal as a basis for reversal. (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 436.)

There is a limited exception to the rule barring new arguments on appeal for certain issues of law. Because the purpose of the general rule is to give the trial court and parties the opportunity to correct an error, a “‘noncurable defect of substance where the question is one of law’ is not an error that falls within the rule.” (Woodward Park Homeowners Ass’n, Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712.)

The waiver of arguments not raised in the trial court applies to mistakes by the parties as well as intentional decisions. I had a recent appeal in which one of the primary issues was whether the trial court erred in granting the plaintiff’s motion to amend to conform to proof. At trial, the defendant’s attorney learned on the second day of trial that the plaintiff was going to pursue new claims that were not pled in its complaint. Rather than request a continuance or leave to conduct additional discovery to prepare a defense to the claims, defendant’s counsel confidently represented to the judge that the evidence would show that the new claims were without merit. Over the next six days of trial, defendant submitted evidence and argument in opposition to the new claims. The trial court subsequently granted plaintiff’s motion to amend to conform to proof then entered judgment in favor of plaintiff. Defendant asserted for the first time on appeal that it suffered prejudice from the motion to amend. However, its ability to effectively establish error in granting the motion to amend was severely impacted by its decision to not seek a continuance in the trial court. Defendant’s strategy pursued in the trial court, although not a mistake until viewed in hindsight, limited the arguments it could raise in the Court of Appeal.

Blog Post: CAN YOU LOSE YOUR CALIFORNIA APPEAL BY NOT CITING ALL THE MATERIAL FACTS?

When a California appellant challenges the sufficiency of the evidence to support the trial court’s judgment, the standard of review is narrow. The appeal is not the opportunity to reargue the evidence or to contend that the trier of fact just reached the wrong conclusion. The Court of Appeal’s review is limited to determining whether the record contains sufficient evidence to support the judgment. An appellant who merely cites the evidence supporting her arguments and fails to set forth the evidence supporting the judgment risks losing her appeal on this ground alone.

When a trial court decision is attacked on the ground that the evidence does not support the judgment, the appellate court must uphold the findings of the trier of fact if there is any substantial evidence that supports the lower court’s determination. (Estate of Kupser (1971) 17 Cal.App.3d 919, 924.) The Court of Appeal cannot weigh the evidence. (Estate of Johnston (1970) 12 Cal.App.3d 855, 861-862.) The court must accept as true all evidence tending to establish the correctness of the finding, consider the evidence in the light most favorable to the prevailing party, and indulge in all reasonable inferences to uphold the verdict if possible. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 907.) Indeed, the court must disregard conflicting evidence as not having sufficient verity to be accepted by the jury. (Giles v. Horn (2002) 100 Cal.App.4th 206, 220.) The testimony of a single witness – even if a party to the action – may constitute “substantial evidence.” (In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.) 

The natural inclination for an appellant challenging the sufficiency of the evidence is to highlight the evidence supporting her position and to minimize or ignore the evidence supporting the trial court’s decision. However, an appellant challenging the sufficiency of the evidence has the burden to set forth all the material evidence and to affirmatively explain why the evidence is insufficient to support the judgment. (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) As a practical matter, “[a]n appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) 

In addition, the court may, in essence, sanction an appellant who fails to set forth all the material evidence by deeming waived her contention that the evidence is insufficient to support the judgment. As the court in Rayii v. Gatica, supra, held, “[a]n appellant … who cites and discusses only evidence in her favor fails to demonstrate any error and waives the contention that the evidence is insufficient to support the judgment.” (Ibid.) The Baxter court also summarily concluded, “[i]f the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is waived.” (Baxter Healthcare Corp. v. Denton, supra, 120 Cal.App.4th 333, 368; see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1510.) 

A California appellant who cites only self-serving evidence thus risks waiving her insufficiency-of-the-evidence argument and losing her appeal on this ground alone.