Legal Question in Real Estate Law in California
demurrer on oral contract
I had an oral contract with my brother to buy and sell homes in default, sold some then kept some for rentals.
the agreement was I was to get the property and the he came up with the money on the first one. then we sold the first one and used the money to pick up others, we were suppose to split all profits. He did not split the money with me. we still own one house still, the one problems is that my name is not on anything. I do have wittness I have a Law suit against him I have been doing this myself.His Attorney is trying to demurrer the case,
1. He files that an oral contract needs to performed within one year.
2. demurrer to the pleading on the ground that the pleading does not state facts sufficient to constitute a cause of action code of Civil Procedure section 430.10
3.A cause of action must be brought within 2 years of the breach.
4. I also filed Constructive Trust, he stated that I failed to state a cause of action for this. Please help me I could lose everything I have worked for because I dont have the money to pay for an attorney up front will any one do this on contingent this is for 6 houses, 12 unit apartment complex and one realestate business that he got by putting a blanket lien on a property
4 Answers from Attorneys
Re: demurrer on oral contract
I responded to you on your last inquiry. I can help, you may contact me.
Re: demurrer on oral contract
The demurrer is likely to be sustained unless professionally resisted, partly because your self-drafted complaint is undoubtedly weaker than it could be if skillfully drafted. Your suit needs to allege causes of action based upon partnership law; and, to the extent it is based upon oral contract, you need to know how to plead around the statute of limitations (which is being raised as a defense).
I don't know if I could represent you efficiently or not; you seem to be in the Fresno area and I'm in West Marin. You also don't say when the hearing on the demurrer will take place or what your deadline is to file an opposition to it. These are very important deadlines, because if the demurrer is sustained without leave to amend, your case may be dead.
I invite you to contact me with particulars, including FAXing me copies of your self-drafted Complaint and the demurrer. Then perhaps we can discuss a fee schedule that would meet your cash problems. This is not an offer to take your case, it's only an expression of willingness to take a closer look at it.
Re: demurrer on oral contract
You cannot afford not to get an attorney at this point. Some up front fees will be required as he would have to jump in on a motion and review your file and access you case. I would be happy to look at it. Call me directly at (619) 222-3504.
Re: demurrer on oral contract
Yours is one of the most forthright questions ever presented in this situation. But do you really expect any attorney to be able to counsel you over the Web fully and completely. What my colleagues are telling you is we will not do that. You must hire someone. You must get someone who is familiar with the real estate law and expertise in it in both transactional as well as a litigation areas. The reason you are probably in the problems you have is that you didn't seek the advice of an attorney at the outset. Not to rub salt in the wounds but any attorney would've said put everything in writing and you will not necessarily have this problem. Though there is equity and there is the law and an eight carefully drafted complaint will deal with both areas that you are not sophisticated enough, expertise enough, have enough education to do that skillfully. You need to hire an attorney, you need to hire an attorney and that is my recommendation. Your facts are way too flimsy for anyone to advise you properly and that is not the intent of this site. I am in Moraga, California and appears you are in Fresno. But more importantly you don't stay where the property is. Most anything that we are doing is based upon an unwarranted assumption. Like Mr. Whipple I'm not telling you I will even take your case but if you wish to contact me I will be happy to look at it for you. Like Mr. Whipple used a note dates applicable to the required court documents being filed. That could be a substantial time problem given any attorney's schedules. Act immediately or else you can find yourself out of court and complaining about that. I have been practicing law in the San Francisco Bay area for approximately 35 years and expert in the area in the category in which your question is placed. I feel I can help you in this matter and if you wish to consult with me please contact me at 925-945- 6000.
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