MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 23.

by Robert Odson and Staci Tomita

Boilerplate Common provisions in commercial Breakdown real property may be unenforceable, partially enforceable, or not enforceable according to their literal meaning

VIRTUALLY EVERY commercial real property contains erty’s existing condition. In an as-is sale, no warranties of quality or pages of boilerplate provisions with language that seeks to narrow the condition are implied in the sale of the property. However, an as-is scope of any subsequent dispute, limit liability, and dictate the man- provision will not shield the seller from all claims concerning the con- ner in which disputes are adjudicated. The virtual ubiquity of these pro- dition of the property. When a seller intentionally conceals, through visions indicates that they are relied upon, but do they work? Stated fraud or , material defects not otherwise visible or differently, are the provisions enforced in accordance with their literal observable to the buyer, the as-is provision will not shield a seller from meaning? In some cases, common boilerplate provisions in commer- a buyer’s claims.1 cial real property contracts are absolutely unenforceable, enforced in Nor is an integration clause always effective in accordance with certain contexts, or not enforced in accordance with their literal its literal meaning. The clause seeks to bar introduction of parol evi- meaning. dence, which is of prior or contemporaneous oral commu- For example, commercial real contracts often contain pro- nications introduced to alter the meaning of written contracts. An inte- visions in which the parties agree that the purchaser or tenant is tak- gration clause is governed by Section 1856 of the Code of Civil ing the property “as-is” and disclaim any representations made out- Procedure, which states: “Terms set forth in a writing intended by the side of the written language in the contract. Boilerplate integration parties as a final expression of their agreement with respect to the terms provisions typically state that the contract contains the complete included therein may not be contradicted by evidence of a prior agreement between the parties. Although as-is and integration pro- agreement or of a contemporaneous oral agreement.” visions literally preclude claims based upon alleged promises outside the contract, their enforcement falls short of their literal meaning. Robert Odson is a founding partner and Staci Tomita is an associate of In an as-is sale of property, the use of the term “as-is” relieves a Shumener, Odson & Oh LLP, a boutique firm in Los Angeles litigating com- seller of real property from liability for observable defects in the prop- mercial disputes with a focus on real estate and finance.

Los Angeles Lawyer January 2015 21 Integration clauses are generally enforce- to fraud claims involving sophisticated par- estate contracts to contain exculpatory able and can be effective to bar introduction ties,” reasoning that said admissibility “does clauses. For example, commercial leases com- of evidence of alleged promises that are con- not create any injustice” because parties monly include provisions stating that the land- trary to the clear and express terms of the con- “claiming fraud in the inducement [are] still lord shall not be liable for negligence. In gen- tract. However, parol evidence may be intro- required to prove they relied on the parol eral, California law regards exculpatory duced to interpret the contract when it is evidence and that their reliance was reason- clauses with disfavor. Civil Code Section 1668 ambiguous. Thus, even in the face of an inte- able.”9 In Julius, the tenants met their burden provides that certain exculpatory clauses “are gration clause, a court can, and likely will, “to prove that, notwithstanding both the against the policy of the law.”16 Nevertheless, hear evidence of prior or contemporaneous Lease’s integration clause and the ‘as is’ lan- parties may agree to certain exculpatory oral communications in adjudicating a dispute guage with respect to the restaurant equip- clauses when the contract does not affect the concerning a real estate contract.2 ment, they reasonably relied on [the land- public interest.17 When the supreme court Moreover, integration clauses have, at lord’s] prior oral assurances in entering into reviewed the “troubled” history of Civil Code most, a limited application to fraud claims. the agreements.”10 The Julius court also dis- Section 1668, it found the decisions uniform It has been the law for years that a “party may agreed with the landlord’s argument that in one respect: “The cases have consistently not contract away liability for fraudulent or Riverisland should only apply to contracts of held that the exculpatory provision may stand intentional acts or for negligent violations adhesion.11 only if it does not involve ‘the public inter- of statutory law.”3 Section 1668 of the Civil Likewise, Thrifty cited to Riverisland to est.’”18 Code states: “All contracts which have for find extrinsic evidence “admissible to estab- Public Interest Test their object, directly or indirectly, to exempt lish fraud or negligent misrepresentation in the any one from responsibility for his own fraud, face of the lease’s integration clause.”12 In In Tunkl v. Regents of University of Cali- or willful injury to the person or property of Thrifty, the plaintiff tenant of commercial fornia, the supreme court set forth a “rough another, or violation of law, whether willful space alleged fraud against the landlord for outline” of factors to determine whether an or negligent, are against the policy of the purported false representations about esti- exculpatory clause involves the “public inter- law.” In general, an integration provision mated tax, insurance, and common area est” and thus may be invalid. First, the con- will not bar claims of fraud in the inducement expenses made in a letter of intent before tract “concerns a business of a type generally of a real property contract. As explained in the parties executed the final lease. The land- thought suitable for public regulation.” Manderville v. PCG & S Group, Inc., a “party lord demurred, arguing that tenant agreed in Second, “The party seeking exculpation is to a contract who has been guilty of fraud in the lease that “it was entering into the lease engaged in performing a service of great its inducement cannot absolve himself or her- based on its own investigation,” that “implied importance to the public…which is often a self from the effects of his or her fraud by any terms of the contract could not contradict the matter of practical necessity for some mem- stipulation in the contract, either that no rep- express terms,” and that “the lease contained bers of the public.” Third, “The party holds resentations have been made, or that any an integration clause…such that prior nego- himself out as willing to perform this ser- right that might be grounded upon them is tiations and discussions, which were no more vice for any member of the public who seeks waived. Such a stipulation or waiver will be than ‘estimates,’ were merged into the it, or at least for any member coming within ignored, and parol evidence of misrepresen- lease.”13 The trial court granted the land- certain established standards.” Fourth, “As tations will be admitted, for the reason that lord’s demurrer, but the court of appeal a result of the essential nature of the service, fraud renders the whole agreement voidable, reversed in light of Riverisland, stating that in the economic setting of the transaction, the including the waiver provision.”4 “extrinsic evidence is admissible to establish party invoking exculpation possesses a deci- While prior law essentially allowed par- fraud or negligent misrepresentation in the sive advantage of bargaining strength against ties to contract around fraud committed prior face of the lease’s integration clause.”14 any member of the public…[seeking those] to the execution of an integrated contract by While as-is clauses and other provisions services.” Fifth, “In exercising a superior refusing to admit parol evidence contrary to disclaiming any representations or warranties bargaining power the party confronts the the contract,5 the California Supreme Court outside of the contract may not be enough to public with a standardized adhesion contract in Riverisland Cold Storage, Inc. v. Fresno- win demurrers or motions for summary judg- of exculpation…and makes no provision Madera Production Credit Association held ment, the clauses may be considered as fac- whereby a purchaser may pay additional rea- that the does not bar evi- tors tending to disprove the justifiable reliance sonable fees and obtain protection against dence of fraudulent promises that contradict element of fraud.15 Indeed, it will be difficult negligence. Sixth, “as a result of the trans- the terms of an integrated writing.6 The for a party to show that it justifiably relied on action, the person or property of the pur- Riverisland court relied upon Section 1856(f) a precontract statement contrary to the terms chaser is placed under the control of the of the Code of Civil Procedure to rule that “it of a final written contract when the contract seller…subject to the risk of carelessness by was never intended that the parol evidence contains an integration clause in which the the seller” or the seller’s agents.19 rule should be used as a shield to prevent the party affirms that it cannot rely on any pre- Although the exculpatory clause in Tunkl, proof of fraud.”7 contract statements contrary to the terms of which purported to relieve a charitable re- Riverisland has been applied to real estate the final written contract. search hospital of negligence as a condition contracts, such as the commercial leases at In sum, although as-is clauses, integra- of admission, was considered invalid as affect- issue in Julius Castle Restaurant, Inc. v. Payne tion clauses, and other provisions disclaiming ing the public interest, courts have routinely and Thrifty Payless, Inc. v. Americana at any representations or warranties outside of found contracts involving real estate to fall Brand, LLC.8 In Julius, commercial tenants the contract may have some efficiency in nar- outside of the Tunkl factors. For example, in sued their landlord for fraud related to pur- rowing future contractual disputes, these pro- Burnett v. Chimney Sweep, the court found ported oral representations that the restaurant visions will not likely be enforced in accor- commercial leases to be “a matter of private equipment was in working order and that the dance with their literal meaning with respect contract between the lessor and the lessee landlord would fix any broken equipment. to fraud claims, particularly claims of fraud with which the general public is not con- Over the landlord’s objections, the court con- in the inducement. cerned.”20 Indeed, “no public policy opposes cluded that “parol evidence is admissible as It is also customary for commercial real private, voluntary transactions in which one

22 Los Angeles Lawyer January 2015 MCLE Test No. 242 MCLE Answer Sheet #242 BOILERPLATE BREAKDOWN

The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Name Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Law Firm/Organization

1. The term “as-is” may relieve a seller of real property 11. P arties can sometimes limit who is liable for certain Address from liability for observable defects in the property’s wrongs, notwithstanding Section 1668 of the Civil City existing condition. Code. State/Zip True. True. False. False. E-mail Phone 2. 12. In an as-is sale, no warranties of quality or condition In a commercial transaction, a provision liquidat- State Bar # are implied in the sale of the property. ing damages is presumptively valid unless the party True. seeking to invalidate it shows that it is unreasonable. INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. True. 1. Study the MCLE article in this issue. False. 3. When a seller intentionally conceals material defects 2. Answer the test questions opposite by marking 13. the appropriate boxes below. Each question not otherwise visible or observable to the buyer, an as- In a commercial transaction, there is no bright- has only one answer. Photocopies of this is provision will shield the seller from the buyer’s line rule to determine whether a provision liquidating answer sheet may be submitted; however, this claims. damages is reasonable. form should not be enlarged or reduced. True. True. 3. Mail the answer sheet and the $20 testing fee False. False. ($25 for non-LACBA members) to: Los Angeles Lawyer 4. 14. An integration clause always defeats claims of The amount of damages actually suffered, as deter- MCLE Test fraud in the inception of a contract. mined after a contract is made, is important in deter- P.O. Box 55020 True. mining the validity of the provision. Los Angeles, CA 90055 False. True. Make checks payable to Los Angeles Lawyer. False. 4. Within six weeks, Los Angeles Lawyer will 5. Thr ifty Payless, Inc. v. Americana at Brand, LLC, return your test with the correct answers, a found extrinsic evidence inadmissible to establish 15. All provisions attempting to limit the parties’ rationale for the correct answers, and a fraud or negligent misrepresentation in the face of the recovery are construed as liquidated damages. certificate verifying the MCLE credit you earned lease’s integration clause. True. through this self-assessment activity. True. False. 5. For future reference, please retain the MCLE False. test materials returned to you. 16. Predispute waivers of the right to a jury trial are ANSWERS 6. With respect to fraud claims, as-is clauses and generally unenforceable. Mark your answers to the test by checking the integration clauses will always be enforced in accor- True. appropriate boxes below. Each question has only dance with their literal meaning. False. one answer. True. 17. False. To validly agree to a general judicial reference, a 1. I True I False party must expressly waive his or her right to a jury. I I 7. One factor that the U.S. Supreme Court has set True. 2. True False forth to help determine whether an exculpatory clause False. 3. I True I False involves the public interest is whether it concerns a 4. I True I False 18. business of a type generally thought suitable for pub- A general judicial reference can only be entered 5. I True I False lic regulation. into after a dispute arises. 6. I True I False True. True. False. False. 7. I True I False 8. I True I False 8. 19. Contracts that have for their object to exempt any one Since an agreement to submit future disputes 9. I True I False from his or her own fraud are against public policy. to judicial reference acts as a predispute jury trial 10. I True I False True. waiver, it is necessarily unenforceable. False. True. 11. I True I False False. 12. I True I False 9. Exculpatory clauses that shield against liability for 13. I True I False passive negligence always shield against liability for 20. Judicial reference provisions are subject to stan- 14. I True I False active negligence as well. dard rules of contract interpretation and contract I I True. defenses, such as fraud or . 15. True False False. True. 16. I True I False False. 17. I True I False 10. Exculpatory clauses that shield against liability 18. I True I False for gross negligence are generally enforceable. I I True. 19. True False False. 20. I True I False

Los Angeles Lawyer January 2015 23 party, for a , agrees to shoulder patory clause did not specifically mention reflect the parties’ intent to disclaim liability a risk which the law would otherwise have negligence, but a provision purporting to for active as well as passive negligence.34 placed upon the other party.”21 shield the landlord from liability for any of Provisions Limiting Damages In the context of commercial real estate the tenant’s loss of profits did. As the court transactions, California courts have repeat- stated, an agreement that “seeks to limit gen- Commercial real estate contracts, particularly edly found general exculpatory clauses en- erally without mentioning negligence is con- contracts for purchase and sale of real prop- forceable notwithstanding Civil Code Section strued to shield a party only for passive neg- erty, commonly include liquidated damages 1668. Courts have found such provisions to ligence, not for active negligence.”27 Had the provisions. In a commercial transaction, a shield against liability for “passive” negli- exculpatory clause in Burnett specifically provision liquidating damages is presump- gence, but parties should include more explicit mentioned negligence as a claim released, it tively valid unless the party seeking to invali- references to negligence if they wish to shield likely would have released the active negli- date it shows that it is unreasonable.35 How- against liability for “active” negligence as gence at issue.28 ever, in commercial contracts, a provision well.22 In Inglis v. Garland,23 a general excul- This is because exculpatory clauses that liquidating the damages to the seller if the patory clause shielded a landlord from its specifically mention negligence typically re- buyer fails to purchase the property must also passive failure to discover the actual source lease parties from both passive and active be 1) “separately signed or initialed by each of a leak sooner because the landlord made negligence.29 The parties, however, proba- party to the contract,” and 2) “set out either bona fide efforts to repair the leak. On the bly cannot contract around gross negligence.30 in at least 10-point bold type or in contrasting other hand, the court in Butt v. Bertola24 did In Frittelli, Inc. v. 350 N. Canon Drive, LP, red print in at least eight-point bold type” if the not consider a general exculpatory clause the exculpatory clause that specifically men- provision is included in a printed contract.36 sufficiently explicit and specific to shield a tioned negligence shielded the landlord from With respect to commercial property, the valid- landlord from its active negligence in repeat- liability for active negligence.31 The court ity of a liquidated damages provision depends edly failing to repair leaks that it knew about, further noted that the lease set forth the land- upon its reasonableness at the time the contract which led to massive flooding that destroyed lord’s “sole recourse” to file an insurance was made and not as it appears in retrospect. the tenant’s store.25 claim.32 Interestingly, parties can sometimes Accordingly, the amount of damages actually Similarly, in Burnett, the court of appeal limit who is liable for certain wrongs as well, suffered or the fact that damages could become reversed the trial court’s judgment on the notwithstanding Section 1668.33 In short, in readily ascertainable at some point after the pleadings because questions of fact remained commercial real estate transactions, parties contract was made have no bearing on the as to whether the exculpatory clause pro- may exculpate themselves from liability for validity of the liquidated damages provision.37 tected the landlord from liability for its active negligence (but probably not fraud or gross In commercial transactions, there is no negligence in refusing to remediate a known negligence), and they should specifically men- bright-line rule to determine whether a liq- mold infestation.26 There, the general excul- tion negligence in an exculpation clause to uidated damages provision is reasonable, but “the circumstances existing at the time of the making of the contract are considered, including the relationship that the damages provided in the contract bear to the range of harm that reasonably could be anticipated at the time of the making of the contract…the relative equality of the bargaining power of the parties, whether the parties were repre- sented by lawyers at the time the contract was made, the anticipation of the parties that proof of actual damages would be costly or inconvenient, the difficulty of proving cau- sation and foreseeability, and whether the liquidated damages provision is included in a form contract.”38 Most important in deter- mining the reasonableness of liquidated dam- ages is whether the amount is proportional to the damages that may actually flow from the anticipated breach—whether the amount rep- resents the parties’ reasonable effort to esti- mate a “fair average compensation for any loss that may be sustained.”39 In the absence of this relationship, a liquidated damage clause is deemed void as a penalty.40 In Harbor Island, the liquidated damages provision was considered a penalty because it allowed the landlord to collect double rent if the tenant breached the lease. The court determined that the amount was not rea- sonably related to any actual damages that the landlord could have anticipated resulting from the tenant’s failure to properly maintain the premises. Likewise, in Fox Chicago Realty

24 Los Angeles Lawyer January 2015 Corporation v. Zukor’s Dresses,41 a liquidat- ties were sophisticated and understood that, not intended to prescribe a definite liability, i.e., ed damages clause was considered a penalty pending the close of escrow, the seller would liquidated damages, but is a limitation on the when it required the tenant to pay $159,450 take the property off the market, make maximum possible recovery for actual loss or for breaching the lease by removing portions repairs, and continue to make mortgage and damage alleged and shown by evidence. It of the store. The parties initially agreed to insurance payments. imposes a limitation within which damages monthly rent of $4,100 but repeatedly mod- Similarly, the provision in El Centro Mall, might be proved. The validity of the condition ified their lease to reduce the rent. The liqui- LLC v. Payless ShoeSource, Inc.,46 was not a is not open to doubt.”48 Thus, clauses impos- dated damages provision required the tenant penalty, even though it provided for liqui- ing mere limitations on liability, subject to to pay the cumulative difference between the dated damages of 10 cents per square foot of proof, as opposed to definite liability, are not initial $4,100 rent and the reduced rent actu- leased space per day in the event of a breach. considered liquidated damages.49 ally paid each month in the event of any Although the lease already provided for pay- The lesson is that a party seeking to limit breach. Not only did the landlord fail to ments of percentage rental in the event of the its damages ahead of time may do so in a liq- show that the damages suffered were difficult tenant’s default, the liquidated damages clause uidated damages clause, as long as the amount to ascertain, which was required at the time,42 was held reasonable in part because it ac- constitutes a reasonable estimate given the cir- but he also failed to show how payment of counted for more than percentage rental, such cumstances at the time of contracting. How- $159,450 for removal of portions of the store as anticipated loss of synergy, goodwill, and ever, if the liquidated damages provision con- was proportional to any damages anticipated patronage. stitutes a penalty, the provision will not be from the unauthorized removal.43 In .Smith v Interestingly, not all provisions attempt- enforced, despite the literal meaning of the Royal Manufacturing Company, the court ing to limit recovery are necessarily construed agreement. Parties may also consider limiting considered a liquidated damages provision a as liquidated damages. To the extent that a pro- their damages in a more open-ended limita- penalty based on the proposition that when vision is considered a mere limitation on lia- tion-on-liability clause, subject to proof. “a fixed sum is agreed upon as liquidated bility, as opposed to a liquidated damages Waiver of Right to Trial by Jury damages for one of several breaches of vary- clause, it may be enforced according to its lit- ing degree, it is to be inferred that a penalty eral meaning. In Wheeler v. Oppenheimer,47 Many commercial real estate contracts still was intended.”44 the agreement stated: “‘If Seller does not com- include predispute jury trial waivers, but On the other hand, the provision in Hong plete sale it is agreed that she will pay all these provisions are unenforceable. The exclu- v. Somerset Associates45 was not a penalty accured [sic] Costs and expenses, Seller only to sive methods for this type of waiver are set because it only provided for liquidated dam- be liable for such costs and expenses.’” Despite forth by Section 631(f) of the Code of Civil ages in the amount of 2 percent of the pur- the buyer’s claim that the clause constituted a Procedure.50 Although one method is waiver chase price in the event of the buyer’s failure void liquidated damages clause, the court dis- by express consent,51 Section 631 “presup- to complete the purchase. In addition, the par- agreed, stating: “We think the provision was poses a pending action.”52 In other words,

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Los Angeles Lawyer January 2015 25 only persons who are already parties to a expressly negate jury trial, nor need it be 3d 1463, 1471-72 (1990). pending action may enter into a waiver of jury filed with the court.56 4 Manderville v. PCG & S Group, Inc., 146 Cal. App. see also trial as provided by statute.53 As such, par- Judicial reference provisions, however, 4th 1486, 1500-01 (2007); Smith v. Rickards, 149 Cal. App. 2d 648, 653-54 (1957). ties are generally prohibited from using a are subject to standard rules of contract inter- 5 Bank of Am. Nat. Trust & Sav. Ass’n v. Pendergrass, contract to prevent future disputes from being pretation and contract defenses, such as fraud 4 Cal. 2d 258, 263 (1935); Julius Castle Rest. Inc. v. adjudicated by jury trial. or unconscionability.57 This requires the clause Payne, 216 Cal. App. 4th 1423, 1440 (2013). Parties, however, may effectively contract to be conspicuous, plain and clear, so that it 6 Riverisland Cold Storage, Inc. v. Fresno-Madera around a jury trial, while maintaining the does not defeat the parties’ reasonable expec- Prod. Credit Ass’n, 55 Cal. 4th 1169 (2013). 7 Id. at 1180-81. procedural and substantive protections of a tations. Although the waiver of a jury trial 8 Julius, 216 Cal. App. 4th 1423; Thrifty Payless, Inc. bench trial, by agreeing to resolve future dis- need not be expressly stated, an agreement to v. Americana at Brand, LLC, 218 Cal. App. 4th 1230 putes through general judicial reference. submit to judicial reference must “clearly and (2013). General judicial reference is a procedure by unambiguously show that the party has agreed 9 Julius, 216 Cal. App. 4th. at 1442. 10 which the parties agree to submit their dispute to resolve disputes in a forum other than the Id. 11 Id. to an appointed neutral third party who ren- judicial one, which is the only forum in which 12 Thrifty, 218 Cal. App. 4th at 1241. 58 ders a binding decision. While parties can disputes are resolved by juries.” 13 Id. at 1237. agree on modified procedural and eviden- Common boilerplate provisions in real 14 Id. at 1241-42 (“Thrifty can allege both intentional tiary rules, judicial reference proceedings are estate contracts are frequently not enforced and negligent based upon conducted much like bench trials and are in accordance with their literal meaning. In Americana’s grossly inaccurate estimates.”). 15 See Manderville v. PCG & S Group, Inc., 146 Cal. subject to appellate review. Referees are bound some cases, such provisions are absolutely App. 4th 1486, 1489 (2007). to follow applicable substantive law rather unenforceable or may only be enforced in 16 CIV. CODE §1668; Burnett v. Chimney Sweep, 123 than more abstract notions of equity or fair- certain contexts. As a result, real estate Cal. App. 4th 1057, 1066 (2004) (“‘[T]he law does not ness that may be applicable to arbitration. lawyers and professionals should recognize look with favor upon attempts to avoid liability or A general judicial reference is initiated by the limitations of such boilerplate provisions secure exemption for one’s own negligence, and such agreement between the parties,54 can be as they negotiate and memorialize their agree- provisions are strictly construed against the person relying upon them.’”) (quoting Basin Oil Co. of Cal. entered into either pre- or postdispute, and ments and consider alternative means to meet v. Baash-Ross Tool Co., 125 Cal. App. 2d 578, 594 results in a decision that is binding between their objectives. I (1954); Frittelli, Inc. v. 350 N. Canon Drive, LP, 202 the parties. Courts have repeatedly held that Cal. App. 4th 35, 43 (2011) (Any exemption from an agreement to submit future disputes to 1 Shapiro v. Hu, 188 Cal. App. 3d 324 (1986). liability for negligence “is subject to the public policy judicial reference is enforceable, even though 2 See, e.g., Ryan J. Barncastle & Kenneth E. Moore, The disfavoring attempts by contract to limit liability for Fraud Exception to the Parol Evidence Rule after future .”). it acts as a predispute waiver to the right to 17 Riverisland, LOS ANGELES LAWYER, Nov. 2013, at 10. Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 95- jury trial.55 Moreover, the agreement need not 3 Blankenheim v. E. F. Hutton & Co., 217 Cal. App. 96 (1963).

26 Los Angeles Lawyer January 2015 18 Id. 19 Id. at 98-100. # 20 Burnett, 123 Cal. App. 4th at 1066; see also Rooz Women’s Leadership Program Setting the Bar for Success v. Kimmel, 55 Cal. App. 4th 573 (1997); cf. Akin v. Business Title Corp., 264 Cal. App. 2d 153 (1968). Strategies for Practice Development – For Women Lawyers 21 Tunkl, 60 Cal. 2d at 101. March 6-7, 2015 - Marina del Rey, CA 22 See Burnett, 123 Cal. App. 4th at 1067; Frittelli, Inc. & ! # " v. 350 N. Canon Drive, LP, 202 Cal. App. 4th 35, 48 “Understanding the business side of the legal profession can help women % $e ! (2011). raise the ‘glass ceiling,’ and provide great value to clients and to their firm.” 23 Inglis v. Garland, 19 Cal. App. 2d Supp. 767, 769, % ' m % me ! m • Increase your revenue and profits by implementing ideas from the sessions 774 (1936). 00 0 • Increase your effectiveness with your clients, resulting in more referrals 24 Butt v. Bertola, 110 Cal. App. 2d 128, 138-40 • Reduce stress of practice by working with colleagues similarly situated (1952). • Network with others facing the same challenges 25 The exculpatory clause in Butt provided: “‘It is • One-on-one coaching practicum agreed by the parties hereto, that said Lessor shall not be liable for damages to any goods, property, or effects Our goal is to equip women lawyers with the tools they need to be successful in the increasingly in or upon said demised premises, caused by gas, competitive legal profession. See more at: www.lawbiz.com/practice-managementinstitute.php water, or other fluid from any source whatsoever.’” Id. at 138. 26 Burnett, 123 Cal. App. 4th at 1061-62, 1065-66. 27 Id. at 1066; Butt, 110 Cal. App. 2d at 140. 28 Burnett, 123 Cal. App. 4th at 1066. 29 See, e.g., Frittelli, Inc. v. 350 N. Canon Drive, LP, 202 Cal. App. 4th 35, 48 (2011); Rooz v. Kimmel, 55 Cal. App. 4th 573, 587 n.7. (1997). 30 Frittelli, 202 Cal. App. 4th at 43. 31 See id. at 45. 32 Id. at 39-40. 33 Farnham v. Superior Court, 60 Cal. App. 4th 69, 72, 77 (1997). 34 Burnett v. Chimney Sweep, 123 Cal. App. 4th 1057, 1065-66 (2004); see also Frittelli, 202 Cal. App. 4th at 48-49. 35 CIV. CODE §§1671, 1679. 36 CIV. CODE §§1670, 1671, 1676, 1677; Hong v. Somerset Assocs., 161 Cal. App. 3d 111, 115 (1984); see also El Centro Mall, LLC v. Payless ShoeSource, Inc., 174 Cal. App. 4th 58 (2009). 37 El Centro Mall, 174 Cal. App. 4th at 63; Smith v. Royal Mfg. Co., 185 Cal. App. 2d 315, 323-24 (1960). 38 CIV. CODE §1671 cmts. REAL ESTATE DISPUTE CONSULTING 39 Harbor Island Holdings v. Kim, 107 Cal. App. 4th 790, 796 (2003). 40 Id.; see also Fox Chicago Realty Corp. v. Zukor’s WARONZOF ASSOCIATES Dresses, 50 Cal. App. 2d 129, 134 (1942) (“Any pro- Timothy R. Lowe, MAI, CRE, FRICS vision by which money or property is to be forfeited without regard to the actual damage suffered calls for • a penalty and is therefore void.”). economic damages •lease disputes 41 Fox, 50 Cal. App. 2d at 129. •fair compensation •land use disputes 42 See Hong v. Somerset Assocs., 161 Cal. App. 3d 111, •property valuation •partnership interest value 114-15 (1984). 43 Fox, 50 Cal. App. 2d at 134. •lost profits •reorganization plan feasibility 44 Smith v. Royal Mfg. Co., 185 Cal. App. 2d 315, 324 (1960). Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F 45 Hong, 161 Cal. App. 3d at 115-16. 400 Continental Boulevard, Sixth Floor [email protected] 46 El Centro Mall, LLC v. Payless ShoeSource, Inc., 174 El Segundo, CA 90245 www.waronzof.com Cal. App. 4th 58 (2009). 47 Wheeler v. Oppenheimer, 140 Cal. App. 2d 497, 499 (1956). 48 Id. 49 Id. 50 Grafton Partners, L.P. v. Superior Court, 36 Cal. 4th REFER CLIENTS WITH CONFIDENCE! 944, 952-56 (2005). HAVE A PAYING CLIENT OUTSIDE OF YOUR LEGAL EXPERTISE? 51 See CODE CIV. PROC. §631(f). Refer to the Los Angeles County Bar Association Lawyer Referral Service. All LRIS 52 Grafton Partners, 36 Cal. 4th at 957-58. 53 Id. lawyers are vetted for experience, insurance, and good standing. 54 CODE CIV. PROC. §638. 55 Woodside Homes of Cal., Inc. v. Superior Court, 142 LACBA Los Angeles County Bar Association Cal. App. 4th 99, 103-04 (2006). 56 Id. at 104 (“A statute permitting agreement for a ref- SmartLaw LAWYER REFERRAL & erence unambiguously results in a waiver of ‘jury trial’ smartlaw.org INFORMATION SERVICE without the need to use those words.”); O’Donoghue v. Superior Court, 219 Cal. App. 4th 245, 256 (2013). (213) 243-1525 57 See Badie v. Bank of Am., 67 Cal. App. 4th 779, 787- LACBA.org State Bar of California and America Bar Association Certified 90 (1998); O’Donoghue, 219 Cal App. 4th at 258-61. 58 O’Donoghue, 219 Cal. App. 4th at 257-58.

Los Angeles Lawyer January 2015 27