Legal Question in Civil Litigation in California
We have a few major non-disclosure issues around the property we purchased last year. Among these, at least three of them amount to Intentional misrepresentation / Fraud on the part of the sellers and their real estate agent. (This includes not disclosing litigations that concern the property in the disclosure forms even though there is a written proof that they were well aware of them.)
We�d asked a question yesterday whether involving the District Attorney�s office is likely to galvanize the sellers and their agent into action and ensure that they respond to our demand for mediation because we do not trust their intention based on past history.
In the reply we received, one statement worries us viz. �If you try to use the threat of reporting them to the DA unless they agree to mediation, that could be considered blackmail/extortion�
We want to clarify that:
- If this Fraud is honorably corrected by the sellers and seller�s agent, we have no intention of escalating this matter to a criminal case. We want to give them a chance to correct the fraud without needing take recourse to the law.
- We are the aggrieved party. How can it be considered blackmail/extortion if we only want the monetary value of the fraud to be corrected?
- We just want to maximize our chances of getting them to mediation.
Our questions keeping the above in mind is:
- Is there a way to get the DA�s involved to speed up the mediation/resolution of the case without it being considered blackmail / extortion.
- If we first contact the DA�s office and then let the sellers know that we�ve contacted them already would that galvanize the sellers into action?
Thanks in advance
2 Answers from Attorneys
You cannot threaten criminal action to gain an advantage in a civil matter. It's best to do what one believes needs to be done, rather than threaten criminal prosecution. I'm not sure that prior litigation, itself, should be the issue as much as are the underlying claims in that litigation and whether they were resolved.
If you purchased a new construction, perhaps the builders committed similar acts with other properties, and a class action might be in the cards. Just a thought . . .
Trying to get the DA involved in your dispute is probably going to be an exercise in futility. This is a civil matter and the chances of getting the DA to become involved are slim to none. DAs are, in reality, far too busy with drug offenders and murders to take any action in this type of matter.
Next, you cannot force anyone to mediate a dispute. Mediation is completely voluntary, even if your sale documents say the parties must first try to mediate any dispute arising from the sale. Further, mediation does not necessarily result in a resolution of the dispute beause a mediator does not act like a judge. Mediators are simply people who try to get the parties to agree to settle their dispute without litigation.
The real value in contractual provisions requiring mediation lies in a party's inability to be awarded their attorney's fees in a lawsuit unless they have first tried to mediate the dispute. In your case, if the seller's refuse to mediate, they cannot recover their attorney's fees, even if they eventually successful in defendant a lawsuit brought by you; on the other hand, as long as you can prove that you have attempted to mediate your dispute, you WILL be entitled to your attorney's fees if you win (assuming there is an attorney's fees provision in the contracts).
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