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B Douglas Robbins

B Robbins’s Answers

4 total

  • Is a commercial lease assignment and amendment accepted and signed by assignor and assignee valid if not signed by Landlord?

    Landlord negotiates a commercial lease assignment and amendment to lease and offers it to tenant (assignor) and assignee to sign. Assignor and assignee sign at Landlord's office. Landlord sends to home office to sign then changes lease by increa...

    B’s Answer

    Please note the following analysis applies under California Law. The common law principles in Georgia should be similar but you should consult with a Georgian attorney to be sure.

    The short answer to your question is: NO. At this particular point in time, there is NO VALID LEASE and there is NO LIVE OFFER from tenant and assignee.

    CONTRACT THEORY. As a background matter, in order to have a contract (of which a lease is simply a particular kind of contract) you simply need (1) an offer by one party, (2) an acceptance of that offer by another party, (3) some sort of consideration, meaning something of value to exchange, and (4) the subject matter of the agreement must not be illegal.

    Here you have the Landlord making an OFFER in the form of the lease that she presents to the Tenant and Assignee. The Tenant and Assignee ACCEPT the offer by signing the lease. The terms of the lease involves an exchange of CONSIDERATION: presumably the landlord provides the property (a thing of value) and the tenant pays money (also a thing of value). I assume this commercial lease is for lawful activity. Normally this would be sufficient for a valid and enforceable agreement. But not in this case. In this case we have an exception called the STATUE of FRAUDS.

    STATUTE OF FRAUDS. The statute of frauds says that there are certain categories of agreements that MUST BE SIGNED IN WRITING. In California, as in most common law states, the statute of frauds applies to a lease if the rental term exceeds one year. See Cal. Civ. Code §§ 1091, 1624(a)(1)-(3); Cal. Civ. Proc. Code §§ 1624(a)(3), 1971. You did not say if the lease ran for more than one year but commercial leases typically run for longer than a year. If so, then your commercial lease is NOT VALID UNTIL THE LANDLORD SIGNS THE LEASE. Since you say that the landlord has not signed the lease, then you have no enforceable agreement.

    COUNTEROFFER. Moreover, the Landlord has REJECTED your signed lease by making a counteroffer. A counteroffer is (1) a rejection of the last offer and (2) makes a new offer of terms. Here, the Tenant and Assignee signed the lease, turning that document, effectively, into an OFFER for the Landlord to then accept or reject. The Landlord REJECTED that lease offer by making material changes in the lease terms, increasing your rent. Now your signed lease offer is a DEAD OFFER. You have no obligation to make good on that offer and are not bound by the old lease. You may now accept, reject, or counteroffer the Landlord’s last offer as you see fit.

    PROMISSORY ESTOPPEL. To make things more complicated, although you may not have a valid lease, you may have an action for promissory estoppel against the Landlord. Despite the statute of frauds, an oral agreement may be enforceable if (1) the tenant detrimentally changed position in reasonable reliance on the agreement and unconscionable injury would occur should it not be enforced or (2) the landlord accepted the benefits of the agreement and would be unjustly enriched by its nonenforecment. Here the facts are not clear if the Landlord forced the Tenant and Assignee to “change position” –meaning do something that made them worse off in reliance on the Landlord’s promise, something like give notice to another landlord and move out, leaving them now with no place to conduct business. But if the elements of promissory estoppel are met then you may have an action against the Landlord even on an ORAL promise.

    Douglas Robbins
    San Francisco, California

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  • Can I sue for malicious prosecution as defendant I stipulated with the plaintiffs’ attorney for dismissal with prejudice .

    The dismissal was commenced at my direction during mediation without giving my evidence. I was sued under the A.D.A. because the plaintiff said he was unable to use the restroom in my restaurant. I have video proof the plaintiff never entered the...

    B’s Answer

    • Selected as best answer

    Based on the facts as you have stated them, and assuming you have not signed a settlement agreement releasing all the parties from claims, then you likely CAN sue for malicious prosecution.

    Whether you win or not is another question.

    “A successful malicious prosecution action requires proof that the prior litigation was (1) commenced by or at the defendant’s direction, (2) pursued to a termination in the plaintiff’s favor, (3) brought without probable cause, and (4) initiated with malice.” Siebel v. Mittlesteadt, 12 Cal. Rptr. 3d 906, 912 (2004) (citing Crowley v. Katleman, 8 Cal. 4th 666, 676; Brennan v. Tremco, Inc., 25 Cal. 4th 310, 313 (2001); Pattiz v. Minye, 61 Cal. App. 4th 822, 826 (1998)).

    Here, you have stated that the action was brought against you and was subsequently dismissed with prejudice. This is sufficient to show you have prevailed against the Claimant. Both the Claimant’s Attorney and the ADA Claimant herself are now potentially exposed under a malicious prosecution theory.

    Next, it appears, based on the facts you have provided, that the matter was NOT brought with probable cause. An action lacks in probable cause if a reasonable attorney would not “have thought the claim tenable.” Leonardini v. Shell Oil Co., 216 Cal. App. 3d 547, 568-69 (1989). There are two basic ways in which to establish lack of probable cause: failure to allege a coherent legal theory, and failure to allege truthful facts.

    Here, it appears that while the ADA legal theory may have been valid, there was no FACTUAL basis to allege the claim because the Claimant never actually entered your place of business. See Leonardini, 216 Cal. App. 3d at 568 (finding lack of probable cause where the defendant relies upon facts which she had no reasonable cause to believe to be true). While the ADA Claimant certainly should have known that her claim was based on false facts, her Attorney can always argue that he relied on what the Claimant/Client told him and had no reason to believe that his own Client was lying to him. If the Attorney’s story is believed then, the probable cause element would NOT be met as against the attorney, even while it still MAY still be met as against the ADA Claimant/Client herself.

    Finally, you must prove malice. Malice is not limited to actual hostility or ill will but also exists when the proceedings are instituted primarily for an improper purpose. Albertson v. Raboff, 46 Cal. 2d 375 (1956); Jacques Interiors v. Petrak, 188 Cal. App. 3d 1363 (1987). “Suits with the hallmark of an improper purpose are those in which: (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim." George F. Hillenbrand, Inc. v. Insurance Co. of North America, 104 Cal. App. 4th 784, 814 (2002) (quotation marks omitted); see Albertson v. Raboff, 46 Cal. 2d 375 (1956).

    Proving actual malice is always difficult. Malice is primarily a subjective state and trying to prove by a preponderance of the evidence what might have been in the ADA Claimant’s heart-of-hearts is always a challenge. But if there is sufficient circumstantial evidence and especially, if you can prove that there was ZERO factual basis to bring the lawsuit (see probable cause discussion above), then courts and juries may be sufficiently persuaded to find malice based on that alone.

    Malicious prosecution actions are inherently difficult to win. But not impossible.

    Contact me if you have any further questions.

    B. Douglas Robbins
    One Post St., Suite 800
    San Francisco, CA 94104
    T: 415-247-7900 x204
    F: 415-247-7901

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  • Further discussion about using emails someone sends me in a book I am writing.

    I have a dim memory that historically when you send someone a "letter" that person then owns the letter and may publish it. Is there perhaps case law on this topic or am I just wrong? I now have a series of email exchanges over a long period of t...

    B’s Answer

    • Selected as best answer

    Absent a written assignment (contract) to the contrary, the original writer continues to own the copyright in the e-mail. The receiver of the e-mail owns the e-mail but none of the copyright rights in the e-mail. Copyright rights include the right to copy and publish. Thus only the writer can license the e-mail for subsequent publication. Publishing the work without permission (typically license or assignment) is copyright infringement. Anonymizing the e-mail may help to avoid other causes of action, such as those related to the privacy torts, but has no effect on copyright.

    BUT, there are exceptions to copyright infringement, such as (1) for work that is not copyrightable in the first place, (2) work in the public domain, and (3) fair use. Here, fair use seems to be your best defense.

    In order to determine whether any particular use of copyrighted material is a fair use, the courts will typically examine four factors: (1) the purpose and character of the use (often a test of whether the work has been “transformed”), (2) the “nature of the copyrighted work”; (3) the amount of the work used in “relation to the copyrighted work as a whole”; and (4) whether using the work damaged the “potential market for or value of the copyrighted work.” Parenthetically, anonymizing the e-mails would WEAKEN your fair use claim, not strengthen it.

    For a further discussion of copyright and fair use check out A Fair Use Primer at

    Douglas Robbins

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  • Small claims

    I have a family member whom i owe some monies to. I have been making monthly payments as agreed. Never been late. They have decided to raise the payment amount, but i cannot afford anymore than what i am paying. There isnt a written contract, just...

    B’s Answer

    As a general proposition, your family can always "seek legal advice" and there's nothing you can do about it. As far as what you can expect here are some issues to consider.

    1. Amount: If the amount is small enough, the matter will likely be resolved in Small claims court. In California $7500 or less qualifies as a small claims matter.

    2. Oral Agreement: Oral agreements are not invalid just because they are oral but each side will have a more difficult time proving what the terms of the agreement are supposed to be. Oral agreements, however ARE subject to what is known as the statue of frauds which INVALIDATES certain oral agreements such as (but not limited to): oral agreements involving the SALE of real property, oral agreements involving contracts that by its terms cannot be completed in a year, and a special promise to answer for the debt, default, or miscarriage of another.

    3. Mutual Consent. Additionally, even if this is a valid oral promise not voided by the statute of frauds, it still must have created with all parties CONSENT. Your family cannot, unilaterally, change the terms of the agreement at any time without your consent (increasing the payments, for example), unless, at the time of the formation of the oral agreement, you told them they could.

    There are potentially other issues and defenses but there's not enough information in your question to explore them all. Was this agreement originally a debt? Is the agreement secured by some property?

    You should consult with a Colorado attorney in order to be advised of all of your rights. This note does not create an attorney client relationship and should not be considered legal advice to be relied upon in lieu of discussing your case with an in-state attorney.

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