Buffington Law Firm, PC

4 hidden issues that can affect a luxury home’s value

2026-08-03T17:17:21Z

Investing in a luxury home can be a great opportunity. However, you might run into certain problems that could risk the value of the home. Being familiar with the issues below allows you to address them in the future.

Unstable ground and structure

Fresh paint and new flooring can cover cracks caused by foundation movement, while landscaping may make a shifting slope, poor drainage or a deteriorating retaining wall harder to spot. These problems deserve particular attention on hillside properties, where weak soil or rock on steep terrain is more vulnerable to failure during an earthquake. California's Natural Hazard Disclosure Statement indicates whether the property lies within a designated Earthquake Fault Zone or Seismic Hazard Zone. A geotechnical engineer conducts a site assessment to determine if the property requires foundation stabilization, regrading, or improved drainage.

Concealed water intrusion

Water that enters near a roofline, balcony edge, window frame or below-grade wall can travel behind stone or custom millwork before a stain appears. By that point, wood, drywall and other porous materials may have absorbed enough moisture to support mold growth. Water damage extends beyond drywall to framing, insulation and flooring, turning a localized leak into a much larger repair. The cost of fixing the source, removing any mold and restoring those materials, along with uncertainty about further problems, may reduce the home's market value.

Unpermitted additions and renovations

A guest suite, rooftop deck or converted basement may have looked like part of the original design when you bought the home. If you later discover that a previous owner built it without the required permits or final approval, you may have to bring the space into compliance even though you did not authorize the work. That process can involve paying after-the-fact permit and investigation fees, opening finished areas for inspection and either correcting code violations or removing construction that the building department cannot approve. You could also receive a citation or fine in some jurisdictions. Until you resolve the issue, the mismatch between official records and the home's layout may affect its appraised value or complicate a later sale or refinance.

Failing specialized systems

Luxury homes often include elevators, radiant heating, pool equipment, backup generators and integrated smart controls. Because a general home inspection is noninvasive, it may not reveal an intermittent problem or show how much service life remains in each piece of equipment. You may only discover after moving in that one is unreliable or close to failure. Diagnosing the cause may require a specialist, and replacement parts can be difficult to source. If the feature helped justify the price you paid, an unresolved malfunction or major replacement expense might reduce the home's market value.

Responding to a discovered defect

Photographs and a written report from the appropriate specialist may document the defect, its likely cause and the expected repair cost. When immediate work is necessary, evidence of the original condition may also include removed materials kept when practical, estimates, receipts and related messages. Seller disclosures, inspection reports, permit records and the purchase agreement could show whether the problem was known before the sale. An attorney can compare those documents with the specialist's findings, explain who may be responsible and assess whether you have a basis to recover repair costs.

When you are served with a lawsuit, do not ignore it!

2026-07-07T20:04:26Z

By: Roger J. Buffington, Esq. When a person is served with a complaint (i.e. a lawsuit) in California, this is a serious matter. Regardless of how inappropriate the defendant may believe that the merits of the lawsuit may be, it is vital that the new defendant retain counsel and respond legally to the complaint. This normally means filing either an official answer to the complaint, or some other form of responsive pleading (e.g. a demurrer or motion to strike). Failing to properly respond to a complaint can result in a default judgment, which can have very serious consequences, up to and including incurring an actual default judgment, which is the equivalent of flat-out losing the lawsuit. Buffington Law Firm's civil trial attorneys have handled many default situations. There can be many reasons why a defendant fails to properly respond to a complaint. Sometimes the defendant does not understand that he or she is required to respond by filing a pleading. Sometimes a defendant will call the hostile lawyer and engage the attorney in a discussion about the case. The conversation may end with the defendant erroneously believing that the matter has been put to rest, only to discovery much later that the opposing attorney entered default against the hapless defendant. Other times, a defendant is served with the complaint (lawsuit) and does not believe that he or she is really involved because a reading of the allegations in the complaint do not seem to really concern the defendant. There are many variations on this theme that have resulted in a default occurring. Entry of default, or even worse, entry of actual default judgment, can greatly complicate a case. This is truly a situation in which an ounce of prevention is worth a pound of cure. Entry of default can be reversed. Default judgments can sometimes be vacated. But it is not always easy and it almost always involves additional legal expense to the defendant. This can all be avoided by following a very simple rule, which is that if a person (or entity) is served with a complaint, he, she, or it should consult and likely retain an attorney. Do not engage in wishful thinking that you have resolved the matter with a phone call or letter. What almost always will happen in such circumstances is that the opposing attorney will gleefully pounce on the defendant's vulnerability and enter default in court against you for failing to respond. It is almost always delusional wishful thinking to believe that you have talked an opposing attorney into dropping the case against you. Unless your own lawyer has advised you that this has been done, be very careful. If you have been served with a lawsuit concerning trust litigation, business litigation, or a real estate dispute, Buffington Law Firm invites you to contact us for a free legal consultation. All consultations are with an actual, experienced trial attorney, are completely confidential, and there is never any cost or obligation.

Quick Entry of Default Can Represent Wrongful Conduct by Counsel

2026-07-07T19:41:37Z

By: Roger J. Buffington, Esq. and Riley Anderson, JD. For a long time, courtesy and etiquette among counsel has required a plaintiff to extend ordinary professional courtesy to a newly-sued defendant before entering default. Most attorneys will make significant efforts to "meet and confer" to allow a defendant to properly respond to a complaint before entering default. This despite California Rules of Court, Rule 3.110(g) requiring that a plaintiff file a request for entry of default within 10 days after the time for service has elapsed, e.g. usually 30 days following service. This rule is obviously (and understandably) intended to move cases along when a recalcitrant defendant for whatever reason fails to properly respond to a civil complaint. A default judgment, at least theoretically, is the same as judgment entered after a trial and a verdict. A defendant can incur a default judgment by ignoring a complaint and failing to file a responsive pleading with the court. There are many reasons that defendants sometimes fail to respond as required. Sometimes a defendant does not understand that he or she is actually being sued. The caption may not actually contain the specific defendant's name. Sometimes the allegations do not seem (to the defendant) to involve the defendant. This is particularly possible in DOE defendant amendments where the name of a previously unknown defendant does not appear anywhere in the caption or the allegations. Here at Buffington Law Firm we have dealt with these types of situations many times. Technically, if a plaintiff enters default against a defendant, eventually the plaintiff can obtain actual judgement against that defendant. Needless to say, this is a harsh remedy. Usually what happens is that eventually the defendant retains competent counsel and either through negotiation or court action the default is reversed. When this is necessary, particularly if court action is required, it involves significant legal expense on the part of the defendant, and sometimes the plaintiff as well. Defaults are to be avoided whenever possible. The California Court of Appeal recognizes that quick defaults usually simply tie up the courts, represent added expense, and needlessly prolongs the case. In Lasalle v. Vogel [(2019) 36 Cal. App. 5th 127] the Court of Appeal demanded and established a more lenient and forgiving standard. In Lasalle, supra, the Court of Appeal recognized that sometimes when a plaintiff quickly defaulted a tardy defendant that this represents a tactic, rather than a good faith belief that default was appropriate. Lamenting the loss of civility and the rise of cynicism, the court relies on California Code of Civil Procedure Section 583.130’s call that “all parties shall cooperate” to determine that seeking a default with “unseemly haste” is no longer just an ethical breach, but a legal one. [Vogel, supra, at 137]. The ethical obligation to warn opposing counsel of an intent to take a default has been strengthened and reinforced by statute. [Id.] “Quiet speed and unreasonable deadlines do not qualify as ‘cooperation’ and cannot be accepted by the courts.” [Id.]. In Vogel, 36 days after serving the complaint, the plaintiff emailed and mailed a letter notifying defendant Vogel that her response was past due and that if she did not reply by the following day by the close of business then plaintiff would request an entry of default. [Lasalle, supra at 131]. After receiving no response, plaintiff filed a request for entry of default at 4:05 the next day. [Id. Vogel responded just over an hour after receiving a copy of the entry for default and requesting an extension, but it was too late. Id. On appeal, the court determined that there were many reasons why the actions taken by plaintiff violated the general courtesy, dignity, and cooperation demanded in the legal profession. [Id. at 137–40]. The incredibly short opportunity to respond, the poor communication method of email, and Vogel’s clearly adequate explanation for her botched reply, among other reasons, all demonstrated that the default should not have been granted. Id. Quiet speed and unreasonable deadlines are not indicative of the integrity, courtesy, dignity, and cooperation demanded of attorneys. Id. at 137. The case law of Vogel appears to be in tension with the deadline announced in Rule 3.110(g). The question then becomes, which view applies? Rules of court comes from the Judicial Council’s authority to “adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute.” [Cal. Const., art. VI, § 6, subd. (d)].. Additionally, the California Constitution requires that “The rules adopted shall not be inconsistent with statute.” Id. No case appears to have directly answered the question of when case law and rules of court conflict. It is accepted that a trial court may not adopt local rules that conflict with the rules of court. [See In re Marriage of Woolsey (2013) 220 Cal. App. 4th 881, 895; Elkins v. Superior Court (2007) 41 Cal. 4th 1337, 1351]. And it is clear from the California Constitution itself that rules of court are subordinate to statute. Regardless of the lack of clarity on the winner of a conflict between case law and rules of court, the clear winner of a statute over rules of court is sufficient to make a determination here. Vogel rests its conclusion almost entirely on the existence of California Code of Civil Procedure Section 583.130. Vogel, at 136–37. The court interpreted this statute to find requirements that the parties cooperate properly about the entering of default judgments. Id. It is this statutory provision that the court determined was not followed and therefore permitted overturning the decision below. Id. Thus, it was actually the active working out of Section 583.130 that conflicted with Rule of Court 3.110(g). Therefore, Rule 3.110(g) should be subordinate to the Vogel decision. This does not mean that in every instance there will always be a contradiction between Vogel and Rule 3.110(g). Vogel itself noted that “Since every section 473 motion must be evaluated on its own facts, we can hold only that this one should have been granted.” Vogel, at 140. Section 583.130 and Vogel do not demand a particular waiting time before a default can be filed. What they do demand is cooperation between the parties. It is possible that sufficient cooperation may take place within the 10 day deadline of Rule 3.110. But if circumstances demonstrate that true cooperation has not or cannot take place within the deadline, then the Rules of Court deadline must fall to the cooperation requirements of Section 583.130. In our opinion, the takeaway from all of this is that sudden defaults, taken either without warning or with little warning, are flat-out inappropriate. When attorneys use this as a tactic to exert pressure on their opponents (and many do) this is a serious violation of ethics. This is the clear message contained in Lasalle v. Vogel [(2019) 36 Cal. App. 5th 127].

Closing Trial Briefs — An Inconvenient Trend

2026-06-20T17:39:46Z

This Blog article is an opinion piece rather than a discussion of substantive law as is the case with almost all of our Firm's Blog articles. In this brief article we will discuss a somewhat troubling trend in California jurisprudence: the Closing Brief that judges increasingly are prone to order as a conclusion to court trials. In this article we will argue that much of the time this is an inefficient, costly, and time-consuming alternative to traditional oral closing argument. In jury trials courts are required to allow oral argument by counsel at the conclusion of the trial. In closing argument, the opposing attorneys argue the case directly to the jury. Closing argument of this sort is universally regarded as one of the most important parts of the trial. It is where the attorneys "put it all together" to enable the jury, armed with the Court's own jury instructions, to decide the case. Indeed, some attorneys refer to "closing argument" as "summation." Closing briefs virtually never are applicable to a pure jury trial. Many trials are not jury trials. As a matter of law many trials are conducted solely before a judge as a court trial. Probate trials, for example, may not be tried before a jury. Many other types of trials, such as trials in equity, also do not entitle the litigants to trial by jury. Even in cases where juries are authorized it is not uncommon in some cases for the sides to stipulate that the matter will be tried as a court trial. In these trials the judge sits as both the finder of fact and the finder of law. This contrasts with a jury trial, where the jury is the finder of fact and the judge instructs the jury on the pertinent law by way of the court's jury instructions. In a court trial the judge is not even required to allow closing argument although in our experience very few judges do not allow the attorneys the opportunity for such. Incidentally, most binding arbitration hearings are generally tried in a manner that is almost the same as a court trial. In recent years Buffington Law Firm's litigation team has noticed a troubling trend whereby in court trials the judges are increasingly instructing the sides to file "closing briefs" rather than ordering the case to conclude by way of closing argument. This used to be rare -- it is increasingly becoming the rule in California court trials. When this occurs the Judge will typically order the plaintiff or petitioner to file a closing brief, with the defendant or respondent ordered to file their brief a few weeks later. Usually the plaintiff or petitioner then may file a rebuttal brief, based on the notion that that side has the burden of proof. In such trials the court almost always does not allow actual oral closing argument. This trend is not desirable. While some very complex cases, involving tricky or unusual issues of fact or law may justify closing briefs, we believe that most of the time justice would be better served by the court hearing oral closing argument rather than ordering closing briefs. Before we elaborate on why we hold this opinion, we acknowledge that closing briefs have some justification. Certainly, closing briefs allow a more relaxed and perhaps more thorough analysis of the case. A written brief can weave arguments of law and fact more thoroughly than oral argument may entail. It is not difficult to see why judges increasingly are asking for closing briefs. However, closing briefs have many disadvantages. Firstly, they are orders of magnitude more expensive for the clients. Lawyers naturally feel compelled to produce a polished, powerful brief that extensively presents cites from the record including the reporter's transcript. This means a lot of billable hours. This cannot be prevented. Lawyers are going to go "all in" in producing their closing briefs. Additionally, a trial entailing closing briefs will take several months longer for the court to decide. So the parties must typically wait much longer for the Court's decision. While closing argument usually occurs immediately after the two sides rest their cases, the judge may not receive closing briefs for months. By this time the case is less fresh in the judge's mind. Even the attorneys may not remember the case as keenly if they write their closing briefs weeks or months after the trial. Thus, when courts require closing briefs the decision is delayed, the cost is greater, and sometimes the minds of the judge and the attorneys are less fresh. We believe that there are better alternatives. A common example that we used to see a lot of was that the Judge would hear oral closing argument at the immediate conclusion of the trial. The Court would then render its decision, either on the spot or shortly thereafter. The Court could then direct the prevailing party to prepare a proposed statement of decision which would constitute the official Statement of Decision. While this sometimes involved some wrangling by the attorneys over the statement, in our experience this was minimal, and far less time consuming or expensive than the whole closing brief process. Another alternative, of course, is that the Court itself can publish its statement of decision after hearing oral argument. In Britain, it was once traditional in many courts that the Court would articulate its statement of decision for the record immediately following argument. Nowadays in California courts usually publish these on the internet a short time after the trial. Once again, this process is much quicker and cheaper than the closing brief process. Whether to hear oral argument rather than require closing briefs is the sole decision of the trial court. We respect this. But we believe that in the vast majority of trials, considerations of cost and timeliness make traditional oral closing argument the best process for concluding court trials.

When you litigate: Hourly or Contingent Fee

2026-04-27T22:45:00Z

By: Roger J. Buffington, Esq. One of the subjects that often comes up in attorney-client discussions is the question as to how the client will pay his or her attorney's fees. In this brief Blog article we will discuss the considerations between the two most common billing practices: hourly fee versus contingent fee. Hourly billing is simple: the number of hours the attorney worked multiplied by the attorney's hourly fee rate. Contingent fee arrangements are flexible, but generally involve the attorney deferring most or all compensation until the conclusion of the case, at which time the attorney is entitled to collect a percentage of the recovery, if any. There is also a so-called "hybrid" arrangement where the attorney takes a lower hourly fee and also takes a percentage (usually smaller than the percentage in a straight contingency case) at the conclusion of the case. Most clients most of the time pay their attorneys on an hourly basis. It goes without saying that essentially all defense cases are billed this way. There is a mythos in the mind of the public that most lawyers bill most plaintiff's cases on a contingent fee basis. This is, in fact, generally not true. It is true that certain types of cases are often billed on a contingent fee basis. Auto collision cases and personal injury cases tend to fall into this category. Since these are two of the most common types of cases with which the general public has experience, this is undoubtedly why many members of the public believe that contingent fee cases are more common than they actually are. Attorneys most commonly bill most kinds of business and contract disputes, inheritance disputes, and disputes over real estate matters on an hourly basis. 1. Hourly Billing Considerations. Most plaintiff's cases (and essentially all defense cases) are billed hourly because it is conceptually the most straightforward way for an attorney to bill. There is a strong notion that a simple matter that requires a relatively modest amount of work by the attorney should entail only a modest bill. Contrary to what some think, many legal matters and even many lawsuits fall into this category. Even high-dollar cases often resolve without a huge expenditure of attorney hours. Clients often do not want to pay a large percentage of an outcome recovery to attorneys if the attorneys did not work a proportionate amount of hours on the case. This is understandable. There is an argument to be made that an hourly billing engagement is fairest to both the client and the attorney since the attorney is compensated commensurate with the amount of work he or she put into the case. As discussed above, this is how many or most cases are billed by attorneys and paid by clients. In addition to the above argument, another argument in favor of hourly billing is that the case is, ultimately, the client's case. It is ultimately the client's decision whether to bring a case, maintain it, take it to trial, or settle it. It is the attorney's duty to understand the client's goals and try to achieve them. By this argument it is appropriate that the client takes the risks of the case and enjoys the reward of a favorable outcome without an attorney taking a contingent fee. 2. Contingent Fee Billing. There are several solid rationales for a contingent fee arrangement in a case. In our opinion one of the most compelling arguments is that a contingent fee agreement aligns the interests of the attorney more precisely with that of the client. Clients often worry that attorneys on an hourly-billing case have an incentive to "keep a case going" so that they can continue to earn money from the case. An ethical attorney will of course not do this, but it is understandable nonetheless that clients sometimes worry about this. This is obviously not a factor in a contingent fee arrangement. In contingent fee scenarios the attorney and the client both have an incentive for the case to conclude with the best possible outcome. In a contingent fee case, in sharp contrast with an hourly billing arrangement, the attorney and the client share the risk as to whether the case will conclude satisfactorily. Indeed, the attorney is absorbing a great deal of risk, since if the case fails the attorney will collect little or nothing -- sometimes despite a great deal of very competent effort. This is why contingent fees are frequently at least one-third (33.33%) of the gross proceeds recovered in a case, and sometimes more. In California all contingent fee percentages are freely negotiable between attorney and client, subject to certain ethical considerations. Because of the risk that the attorney will not recover a significant fee in a given contingent fee case, overall attorney fees in a contingent fee case from a financial perspective can be expected to be higher than in an hourly case where the attorney takes no risk and is simply paid linearly for the amount of time and work he or she expends. One big advantage to a contingent fee arrangement is that it often allows a litigant who has a good case to pursue the case in situations where the client simply cannot afford to pay the attorney hourly. In such situations a worthy case can see its day in court despite a plaintiff who lacks the wherewithal to pay hourly fees. For a solid plaintiff's case there is often no right answer as to how the case should be paid for. If you have a trust litigation case, a real estate dispute, or a business dispute that you need to bring, Buffington Law Firm offers a Free Legal Consultation. All consultations are completely confidential and are with an experienced trial attorney. And there is never any cost or financial obligation.

California Trust Litigation: Who Owns that Bank Account?

2026-04-17T19:13:18Z

There is a serious gap in the law concerning the inheritance of bank accounts. The problem turns on the lack of clarity as to the intent of the bank account creator as to how a bank account is to pass to his or her beneficiaries upon the creator's death. Buffington Law Firm's trust litigation team sees this problem recur repeatedly, and the lack of clarity on this issue is quite honestly baffling and infuriating in equal measure. The problem lies with the question as to whether a given person is actually supposed to be a "pay on death beneficiary." This determination can be far-reaching. When a bank account holder makes a given person a "pay on death beneficiary" this means that the contents of the bank account pass to the beneficiary completely outside of the bank account owner's estate plan. Upon the creator's death, the "POD Beneficiary" immediately becomes the owner of the bank account. The provisions of the creator's will or trust do not control and are, in fact, completely irrelevant. Title to the bank account passes to the POD Beneficiary in much the same fashion as title to real property passes outside of any estate plan when a party makes another party a joint tenant on a real property parcel. This can literally render most or all of an otherwise carefully crafted estate plan completely irrelevant -- frustrating the actual intent of the decedent. Buffington Law Firm's trust litigation team has frequently encountered situations where it was quite plain that a trustmaker intended for his or her estate to pass (for example) equally among several beneficiaries, e.g. the trustmaker's children, But one child helped the trustmaker pay bills and the trust maker had placed that child on the bank account as a signatory and either inadverently made that child the POD Beneficiary on the account, or worse, the bank paperwork is ambiguous on this point. When the trustmaker passes, the co-signatory on the bank account quietly writes a check to him or herself, closes the account, and that's that. The actual testamentary intent of the decedent, however clearly stated in the subject trust or will, may become irrelevant. The problem is amplified by the problem that bank account documentation is often ambiguous. Banks often call signatories "co-owners" which may be completely untrue. California law does not make someone who is merely a signatory a "co-owner" no matter what the often poorly-drafted bank documentation may say. During the lifetime of all parties, an account belongs to the parties in proportion to the net contributions by each, unless there is clear and convincing evidence of a different intent [Prob. Code § 5301(a); see Prob. Code §§ 5134, 5150 (“net contribution” and “sums on deposit” defined); see also Lee v. Yang (2003) 111 Cal. App. 4th 481, 490–494 (boyfriend had no right to reimbursement of funds disproportionate to contributions which were withdrawn by girlfriend from account to which she was added as signatory; due to her unrestricted right to withdraw and apply funds, ownership of any withdrawn funds passed to her by way of gift)]. If a party makes an excess withdrawal [see Prob. Code § 5301(f)(definition)] from an account, the other parties to the account have an ownership interest in the excess withdrawal in proportion to the net contributions of each to the amount on deposit in the account immediately following the excess withdrawal, unless there is clear and convincing evidence of a contrary agreement between the parties [Prob. Code § 5301(b)]. A court, in its discretion, and in the interest of justice, may reduce any recovery to reflect funds withdrawn and applied for the benefit of the claiming party [Prob. Code § 5301(c)] In the case of a P.O.D. account, the P.O.D. payee has no rights to the sums on deposit during the lifetime of any party, unless there is clear and convincing evidence of a different intent [Prob. Code § 5301(d)].

Whether the account documentation seems to make a co-signatory on an account a POD Beneficiary is not absolute. In Placencia v. Strazicich [(2019) 42 Cal. App. 5th 730] the Court of Appeal clarified that the intent of the person who established the account is paramount such that the surviving account holder’s presumed right of survivorship can be overcome by just about any sort of admissible evidence, as long as it is clear and convincing. People whom the bank deems to be "co-owners" may not have any ownership interest in the account at all, either during the life of the creator of the account, or after his or her passing. A right of survivorship in a joint account is not absolute. Whether a joint account has a right of survivorship will turn on evidence of the decedent’s intent, which can include statements made in a will.

In our experience, trial courts as well as banks are often obtuse on this area of law. When trust beneficiaries discover that one child of a decedent has walked away with a disproportionate share of the estate because that person was a signatory on a bank account (and often intended to be nothing more) it can be an uphill battle convincing a trial court that this was improper. Trial courts are often deferential to the determination of the subject bank on this. They should not be. In our experience banks are rarely knowledgeable about the law as it applies to the post-death disposition of a bank account, and it is the duty of the trial court to be prepared to review such determination when litigation is brought before the trial court. If you are dealing with this type of situation, or any kind of trust or inheritance dispute, Buffington Law Firm's trust litigation attorneys offer a free legal consultation at which you may discuss your case confidentially. All consultations are with an experienced trust litigation trial attorney, and there is never any obligation or charge.

Trust and Real Estate Litigation — Lis Pendens does more than merely notify

2026-04-17T18:24:20Z

By: Roger J. Buffington In last week's Blog article, we discussed our take with respect to California law as it handles expungement of a lis pendens, and why the current trend in the law is troublesome. Essentially, we observed that key holdings by California Courts of Appeal have greatly eroded one of the requirements to withstand a motion to expunge a lis pendens, to wit: that the party seeking to maintain the lis pendens need show that the claim in question state a claim that affects title to real property. Pacific Lumber v. Superior Court [(1990) 226 Cal. App. 3d 371, 375] clarifies that a lis pendens does not require that the party filing it him or herself have a real property claim; it only requires that the lawsuit in question "affect title" to real property. Newell v. Superior Court [(2024) 107 Cal. App. 5th 728, 734], a 2024 case, holds that in a trust dispute where the dispute involves a possible change in the identity of the trustee, such a dispute constitutes a claim that "affects title to real property. " The rather tortured rationale is that the trustee is the person that holds title to trust property and that accordingly a dispute over the identity of the trustee in turn affects the title of trust real property. Taken together, Pacific Lumber and Newell essentially mean that any interested person in a trust dispute (i.e. a person who has standing to appear in the action) can appear and file a Notice of Pendency of Action against any real estate parcel that the trust owns, so long as the dispute involves a possible change in the identity of the trustee. The party filing the lis pendens need not have any interest in the real property parcel. The party filing the lis pendens need not be a claimant to be trustee. Since typical trust disputes often or usually involve numerous interested persons, it would logically appear that the element of maintaining a lis pendens that the claim "affect title" to real property has been greatly eroded and expanded to include far more potential claimants than earlier. Newell, supra in particular, appears to radically erode the "real property claim" element of maintaining a lis pendens. It essentially means that anyone who chooses to appear in the action can file a lis pendens in a trust dispute in which the trust owns real property and someone is disputing the identity of the trustee, i.e. seeking to remove the current trustee. Our position is that this trend is not desirable. These holdings essentially mean that any disgruntled trust beneficiary can file a lis pendens against any trust real property if the dispute, in any way, involves a potential change in the trustee. Courts have justified the holdings in Pacific Lumber and Newell by the notion that it is to the public's benefit to be aware of a pending lawsuit that might affect real property. The Court in Newell, supra, stated that the purpose of a lis pendens is to notify potential buyers of real property that there is a legal action pending regarding that property and to bind any buyers to the resulting judgment. [Newell v. Superior Court of Los Angeles County (2024) 107 Cal.App.5th 728, 734]. We believe that this logic is incorrect because it mischaracterizes both the usual intent and the actual effect of a lis pendens. Contrary to the Court's reasoning in Newell, supra, a lis pendens does not merely inform. It is well understood that when a lis pendens is filed on a property title, that the effect is to cloud title to the point where the property is instantly unsalable. Make no mistake: filing a lis pendens is a hostile acts that freezes the property in place until the lawsuit ends or the lis pendens is expunged. Many, perhaps even most, lis pendens filings are strategic insofar as the filing party is acting to assert leverage over the opposing party by preventing the sale of real property. The effect is a restraint on alienation that in many cases may not really relate to the disposition of the real property itself or the real nature of the lawsuit, such as in a circumstance where only the identity of the trustee of a trust is at dispute. Such a dispute often does not reasonably justify a lis pendens and instead conflicts with the ancient public policy that strongly disfavors restraints on alienation. We respectfully submit that it is clearly wrong to justify a lis pendens with its potential far-reaching effects merely because the identity of a trustee of a trust is in dispute. This has nothing to do with the validity of the sale of real property. We believe that the Court of Appeal's reasoning in Newell is erroneous in this context. Because of the erosion in the "affects real property" element of maintaining a lis pendens, most motions to expunge lis pendens will turn on the second prong, i.e. probability of success. In the past it was common for courts to sustain motions to expunge for failure to find that the claim "affects real property." This first prong did not turn on a subjective evaluation of facts -- it is solely determined by the pleadings of the party filing the lis pendens and whether they state, as a matter of law, a qualifying claim concerning title to real property, more or less akin to the way courts evaluate a demurrer. Thus, in the past, trial courts often expunged lis pendens filings that plainly did not justify a lis pendens cloud upon title. Under Pacific Lumber and Newell, trial courts will much more rarely grant motions to expunge based on failure to state a real property claim. The moving party will usually have to depend upon convincing the trial court that the party that filed the lis pendens cannot sustain their burden of showing likelihood of prevailing in the action by a preponderance of the evidence. Most Motions to Expunge will accordingly function in much the same way as a summary judgment motion. Such motions are expensive to bring since they require a strong marshaling of facts rather than a careful analysis of law akin to a demur. The cumulative effect of Newell and Pacific Lumber will be to make expungement of lis pendens much more problematic. Expect lis pendens filings to proliferate as a tool for leverage, especially in trust litigation cases. The effect of Pacific Lumber, Newell, and their progeny will be to strengthen the hand of trust beneficiaries by amplifying their ability to exert leverage over the trustee. As we argued last week, particularly in the context of California trust litigation, this is inappropriate because the Probate Court itself is charged with ensuring the efficient administration of trusts. This should include whether it is proper for a trustee to sell real property during the pendency of a trust dispute. If there is a dispute about whether trust property should be sold during the pendency of a trust petition, the Probate Judge should be the decider as to whether to allow the trustee to sell trust property. The Probate Court should not be bound by the relatively inflexible criteria under the Code to wit: California Code of Civil Procedure Section 405.30 et seq. that governs the expungement of lis pendens.

Lis Pendens in Trust Litigation — A Serious Problem in the Law

2026-05-08T14:55:10Z

By: Roger J. Buffington One of the fascinations of Trust law is that unlike some areas of law, which have been around for a very long time and for which the caselaw is largely settled, in trust litigation the law is in a state of flux and continues to rapidly develop. In this blog article we will address the current state of California trust law as it affects an interesting legal tool, specifically the Notice of Pendency of Action (a/k/a "lis pendens") as it applies concerning property owned by a trust, when some aspect of the trust is being disputed in court. In this article we will explain where things stand, and take the position that the Courts of Appeal have taken an erroneous path that will greatly and needlessly complicate trust litigation and trust administration in future years. We recommend that the courts or the legislature correct this issue.

Basics of a Notice of Pendency of Action (a/k/a lis pendens)

Basically a lis pendens is the Latin term for "Notice of Pendency of Action" (roughly translated). Put simply, California Code of Civil Procedure Section 405.30 et seq. provides that if a party is asserting a "real property claim" to a disputed real property asset in an actual lawsuit, the claiming party can have an attorney file a "Notice of Pendency of Action" (lis pendens) on the title of the disputed property parcel. This gives notice to the world that ownership of the property is in dispute. The legal effect is that if a buyer purchases the disputed property notwithstanding the recorded lis pendens, he or she is not a "bona fide purchaser." This means that the buyer takes the property subject to the claims of the claimant. If the claimant later wins in court, the claimant may be able to nullify and reverse the transfer and take ownership of the property. The buyer would obviously have recourse against the seller to get his, her, or its money back. In other words, a mess. The practical effect of a lis pendens when recorded on a property is that it clouds title and makes most sales impracticable. Lenders will not lend, and title insurers will not insure until and unless the lis pendens is removed. Thus, the usual reality is that the property is tied up and unsalable, often for years as a given lawsuit proceeds through the court system. Buyers almost universally will take a hard pass on any property encumbered by a lis pendens. Because a lis pendens has such a drastic effect upon the salability of property, California law traditionally has been strict in allowing a claimant to maintain a lis pendens. In other words, there are strict requirements for a lis pendens and courts will readily grant a motion to expunge a lis pendens unless it meets strict criteria. The main criteria are: a) the claimant (the party filing the lis pendens) must have stated a real property claim, which is essentially a claim that affects title to the property, and b) in opposing a Motion to Expunge a lis pendens, the claimant must show in the opposing brief that the claimant has, by preponderance of the evidence, shown a probability of success in the actual claim, i.e. the merits of the lawsuit. [See generally Cal. Code Civ. Proc. Section 405.30 (real property claim required)]. Thus, the second prong of maintaining a lis pendens when the lis pendens is challenged in court is that the court must order expungement of a lis pendens if the claimant has not established, in its Opposition by a preponderance of the evidence the probable validity of the real property claim. [Code Civ. Proc. § 405.32; see Code Civ. Proc. § 405.30 (claimant has burden of proof in motion to expunge under Code Civ. Proc. § 405.32)] There are certain nuances to this whereby sometimes the opposing side can post a bond in order to expunge a lis pendens. We will not discuss that exception in this brief article. 2.Appellate Law has loosened the requirements to maintain a lis pendens in California trust litigation. In the last several decades, the courts have eroded the first prong of the elements of maintaining a lis pendens, to wit: stating a real property claim. In Pacific Lumber v. Superior Court (1990 226 Cal. App. 3d 371,375, the Court of Appeal held that the claimant need not have a claim to title him, her, or itself. The Court stated that "[t]he party filing the notice of lis pendens need only show that the action "affects" title to or right of possession of the real property, not that the party itself is seeking an interest in the title or possession. Put another way, the person filing the lis pendens need not have a "dog in the fight." The courts have reasoned that this distinction is consistent with the purpose of the lis pendens statute: "to furnish the most certain means of notifying all persons of the pendency of the action, and thereby warning them against attempting to acquire a legal or equitable interest in the property." (cites omitted)]. In many cases this distinction was not particularly critical since litigation is often or usually two-sided, and the side filing the lis pendens was, of course, the party whose title was affected by the litigation giving rise to the lis pendens. However, this is often not the case for trust litigation. Trust litigation often involves a multitude of parties with standing, but often some of these people are completely unaffected by the disposition of a given real property parcel that the trust corpus may contain. But under Pacific Lumber, supra, any of these persons can tie up the property indefinitely since, if they decide to appear in the action, they would have standing to file a lis pendens. For a long time, probate trial courts did not regard most disputes over a living trust to constitute a real property claim. This was because in most cases the beneficiaries of a trust, who are often the parties that might seek to tie up trust real property with a lis pendens, usually only had a beneficial interest in the trust corpus as beneficiaries. Most beneficiaries did not have a direct claim of title to the property unless or until the trustee actually conveyed a fee interest. Trial courts often or usually (and in our experience, inconsistently) determined that such claims are really claims for money akin to a creditor's claim. Creditor's claims were deemed not to satisfy the "afffects title to real property" requirement to maintain a lis pendens. This is the holding in Campbell v. Superior Court, a 4^th District Court of Appeal holding. [Campbell v. Superior Court (2005) 132 Cal. App. 4^th 904, 922]. In Campbell, supra our 4^th District Court of Appeal found that a lis pendens was inappropriate where the plaintiff was seeking to maintain a lis pendens in a case where plaintiff sought to impose a constructive trust to secure a monetary claim. While the Court acknowledged that this claim involved seeking some sort of title interest by virtue of a constructive trust, since money damages could satisfy plaintiff’s claim “…such a prayer for relief does not support the filing of a lis pendens…” [Id. at 922]. The Court of Appeal in Campell, supra, noted that “…the majority of … courts have concluded that a claim that seeks an interest in real property for the purpose of securing a money damage judgment does not support the recording of a lis pendens… (extensive cites omitted)” [Campbell, 132 Cal. App. 4^th at 912]. This holding often acted as a bar to beneficiaries' attempts to tie up trust property with a lis pendens during the pendency of a trust dispute. The Court of Appeal has recently greatly weakened and limited the holding in Campbell, supra. In Newell v. Superior Court the Court of Appeal reasoned that “[t]he trustee of a trust holds title to real property” and in so reasoning allowed a lis pendens to stand. [Newell v. Superior Court (2024) 107 Cal. App. 5^th 728, 736-737]. The effect of Newell will be to regard almost any California trust petition case in which the Trust owns real property, in which the identity of the trustee is disputed, as satisfying the "real property claim" prong of maintaining a lis pendens (discussion supra]. Any claim that seeks to change the identity of a trustee in any way will now satisfy that requirement. For example, a straight claim seeking to remove a trustee will meet the requirement. A petition seeking to nullify an amendment that may have the incidental effect of changing the successor-trustee will satisfy the "affects real property" element of maintaining a lis pendens under the holding in Newell. This is a sweeping change that will greatly expand the use of the lis pendent tool. The effect of the erosion of the requirements to bring a claim that "affects title" to real property in effect will mean that most motions to expunge a lis pendens in trust litigation will turn on the second element, probability of success. [Discussion supra]. This element requires the party seeking to maintain a lis pendens to show with a preponderance of the evidence that the party seeking to maintain a lis pendens is likely to prevail in the litigation. This is an important safeguard, but it will become in many and perhaps most trust litigation contexts the only safeguard against meritless lis pendens filings. This trend is not desirable. Trust litigation is famously contentious, and beneficiaries and their attorneys not infrequently will seek to file a lis pendens on trust property for reasons that may not, ultimately, benefit the Trust or meet with the approval of the Probate Court. Trust litigation differs fundamentally from other real estate litigation due to the broad powers that a Probate Court has to issue rulings affecting the administration of a trust. Such as whether to allow the sale of real property. [Cal. Prob. Code Section 17206; Schwartz v. Labow (2008) 164 Cal.App.4th 417, 428]. In ordinary civil trials, the powers of courts to intervene before trial is limited. In Trust litigation, by contrast, the Probate Court has both the power and the duty to intervene for the benefit of the administration of the subject trust. This can include decisions as to whether to prevent a trustee from selling or encumbering real property. 3. A Policy Proposal. In the context of Trust litigation the decision to sell real property should not be controlled by California Code of Civil Procedure Section 405.30 et seq. (lis pendens statute) and in most circumstances this decision should be left to the trustee as supervised by the sound discretion of the subject Probate Court, exercising its equitable powers. Under current law, the Probate Court is bound by the Code and by Newell, supra. This in practice is almost certain to lead to many unwise lis pendens being maintained for long periods of time by disgruntled beneficiaries thereby making critical trust assets illiquid during the pendency of litigation. Trust litigation notoriously can take years to work through the court system. We submit that the Court's reasoning in Newell, supra is tortured at best, and merely because a change in trustee could technically affect technical title to the property, this often or usually has nothing to do with an actual claim by anyone to real property. But under current law controlled by Newell, many claims that simply relate to control of the entire trust, or hypothetical claims to the trust residual, will be construed as satisfying California Code of Civil Procedure Section 405.30 (claim affecting real property title). Again, we submit that this is not desirable. Whether to allow a trustee to sell, or not sell, a real property asset can be placed before the applicable Probate Court, which has the continuing duty to monitor the administration of a trust brought within its jurisdiction. The lis pendens process allows a disgruntled trust beneficiary to tie up property without good cause. Under Newell, supra, filing a lis pendens is likely to become a standard tactic of disgruntled beneficiaries. Some of the time this will be justified. Sometimes not. Under our proposal the disposition of real property during the pendency of trust litigation would be within the supervision of the Probate Court rather than bound by the relatively inflexible law governing a lis pendens. This is how the conduct of trust administration is supposed to operate. New Court holdings or new legislation would be required for this to occur as regards lis pendens.

Business Litigation: Basic facts about investment fraud

2026-01-04T21:05:06Z

By: Roger J. Buffington Investment fraud is a serious problem in California in common with many other states. It is a fact of life that for various reasons Southern California in particular has long been a hotbed of investment fraud. Buffington Law Firm's business litigation attorneys have handled many cases concerning this type of lawsuit. In this brief Blog article we will discuss some basic facts about investment fraud. As cynical as it may sound, all investment fraud schemes share a couple of basic features. Essentially, the fraud perpetrator takes the investor's money on a pretext, and then eventually refuses to return it. That is the basic simple formula of almost all investment fraud schemes. Sometimes the fraud is immediately apparent to the victim after he or she has parted with the money; the investor quickly sees that the perpetrator is dishonoring whatever agreement he or she made with the investor. More commonly, for a time the investor believes (or wants to believe) that all is well. Sometimes the illusion that all is going as promised is supported by a pattern whereby the fraudulent scheme returns small amounts back to the investor which the investor believes represents legitimate returns on his or her investment. In reality it will turn out that either the fraud perpetrator is simply giving back small, de minimus amounts of the investor's own money to the investor, or in the classic Ponzi Scheme the perpetrator pays earlier investors with money that he or she obtained from newer investors. In one case that our Firm was involved in the investors had walked around for years or longer believing that they owned million-dollar sized investment accounts. In reality, no one owned anything and the perpetrator was enjoying the money by splurging on a fleet of cars, luxury condominiums in Aspen, luxury ocean liner cruises, and the like. Eventually the system comes crashing down when someone demands their investment be returned and the perpetrator does not (and often cannot) make good on the demand. In all of these cases the perpetrator is not actually creating actual profits that go to pay back the investor -- the investment is a house of cards not supported by an actual successful venture by the perpetrator. Many investment fraudulent schemes share certain characteristics. Often, an experienced attorney can confirm that a client's suspected investment is fraudulent in a matter of minutes. Here are some of the almost sure-fire red flags that an investment scheme typically possesses:

An unrealistic rate of return. Buffington Law Firm has worked cases involving investment schemes that promised annual returns in the double-digits; one well-known case promised over 50% per year. No investment can consistently yield such results or promise such. It is an impossibility.
A guaranteed high rate of return. It is a basic principle of investments that greater returns must entail greater risk. If an investment promises a high guaranteed rate of return this is invariably a danger signal.
The actual nature of the investment is hard to understand or doesn't make sense. If the investment is convoluted to the point where a high school student cannot understand it, it is probably not authentic.
The investment is promising that the investor is participating in some kind of unethical or improper "inside" advantage. Some of the famous Madoff investment victims are an example of this. Some of Madoff's victims believed that Madoff was able to consistently return very high returns because he was involved in "front running" whereby he would find out where the smart money was investing, and invest his fund money ahead of the smart money that was investing with him or in ways known confidentially to him. This practice is usually illegal. If an investment scheme is promising to allow an investor to participate in an improper scheme, it is a certainty that the investment scheme will not end well for the investor. Why should the investors believe that the unethical investment scheme will be ethical with respect to the investor? The question is its own answer.

Unfortunately, many investors who are victimized by these fraudulent schemes start to live on hope. No one ever likes to face up to the evident fact that he or she has been the victim of fraud. But without doubt, if this has happened the best thing that the victim can do is to contact an experienced investment litigation attorney to get an opinion. Fast action can sometimes salvage or remedy this kind of situation. If you believe that you may be a victim of an illegal fraudulent investment scheme, Buffington Law Firm invites you to contact us for a free legal consultation. All consultations are with an actual, experienced business litigation trial attorney and are completely confidential and protected by the attorney-client privilege. And there is never any obligation.

When you receive a Probate Code 16061.7 “120 Day Letter” do not delay!

2026-01-03T19:33:30Z

By: Roger J. Buffington, Esq. Trust litigation often begins with a beneficiary or heir's receipt of a "120 Day Letter" from a successor-trustee of a living trust. On this Blog we have written frequently about such letters because they are of critical importance to actual or potential trust beneficiaries. The 120 Day Letter contains many important provisions but the single most important component of such a letter is its short time horizon for a beneficiary to contest the trust. Essentially, the recipient of such a letter has a limited time, either 60 or 120 days as explained in the letter, after receipt of such letter to bring a trust contest. This is not a great deal of time. Most other Statutes of Limitations are measured in years, not a few months. This narrow time window reflects a very strong public policy in favor of getting trust disputes out of the way and inheritances distributed without a lot of delay. No doubt on balance this policy operates for the public good. But there can be no question that it penalizes those who choose to procrastinate dealing with what is sometimes an obviously troubling situation that requires, at a minimum, legal advice. To be clear, not all trust disputes are trust contests. Most trust contests are disputes dealing with the actual trust provisions. There are an infinite number of examples of these, but some of the most common are when there is a suspicious amendment to the trust, often created late in the life of the trustor (trustmaker) that appears to plainly contradict the known wishes of the deceased trustor. Again, there are an infinite number of variations on this theme. Often in these situations undue influence against the trustor is involved. Buffington Law Firm's trust litigation attorneys once dealt with a case in which the trustor was known to have been comatose, completely non-responsive and on life support, for her last two months of death. But miraculously that same person while comatose had apparently engaged an attorney (not her usual longstanding attorney) and approved a 40 page restated trust that gave the entire estate to one of the trustor's five children despite a longstanding wish that the five children would take equally. By incredible coincidence, only the attorney involved in this scenario was a witness to the now-deceased trustor having approved the complete change to the estate plan. The need for legal action was obvious. Delay almost prevented successful legal action. A trust contest differs from certain other trust disputes that are not subject to the 60 or 120 day time limitation. For example, the trust writing itself may be just fine, but the trustee may be engaging in breaches of trust. Taking court action against such a misbehaving trustee is not a trust contest, and generally does not implicate a trust's no-contest clause. Nonetheless, delay in seeking legal advice is never a good idea when confronted with such a situation. If you are involved in a trust dispute, whether it be a possible trust contest, or some other trust dispute, Buffington Law Firm invites you to contact us for a free legal consultation. All consultations are with an experienced trust litigation attorney, and are completely confidential and subject to the attorney-client privilege. And there is never any obligation.