A key part of understanding why an integration clause is important is understanding what the parol evidence rule is.
What is the Parol Evidence Rule?
Generally speaking, the parol evidence rule bars (or keeps out) extrinsic evidence of a prior or contemporaneous agreement. In English, this means that once parties to a contract sign and agree to the terms of the contract, the parol evidence rule will keep the parties to the agreement from trying to submit prior oral or written statements to modify or contradict terms or clauses in the contract.
Take the example we posted in our previous blog post on integration clauses. In that example, Party B agreed to buy “industry standard gears” for a specified sum, but in Party B’s conversations with Party A, they discussed “type-1” gears. Thus, when Party A delivers “type 3” gears, Party B will go to court and attempt to submit parol evidence that the agreement was for 100 “type-1” gears.
As we noted in prior posts, the parol evidence rule is codified in California Code of Civil Procedure section 1856, which states that the “[t]erms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement.” Likewise, California Civil Code section 1625 states that “[t]he execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.”
As we explained in our prior blog post, most contracts have an integration clause, which will be used to determine whether the contract is “a final expression” of the parties’ agreement. Assuming that is the case, a party will have to show that an exception to the parol evidence rule applies.
What are the Exceptions to the Parol Evidence Rule?
Generally, the parol evidence rule will not allow a party to a written agreement to submit prior inconsistent statements (written or oral), although there are exceptions. The following general circumstances are exceptions to the parol evidence rule:
- Incomplete writings
- Collateral or independent agreements
- Subsequent agreements
- Ambiguity or uncertainty in instrument
- Illegality or bad faith
- Lack of consideration
If one of these exceptions applies a party may then be able to submit evidence that was prior to or contemporaneous with the written contract in order to explain or contradict the terms of the deal.
An integration clause (also known as a merger clause or an entire agreement clause) is found in most contracts and simply provides that the agreement or contract between the parties is the final and complete understanding between the parties, and supersedes all prior negotiations, agreements, or understandings on the subject.
The typical integration clause will say something like this: This Agreement is the entire agreement between the parties in connection with the subject matter of this Agreement, and supersedes all prior and contemporaneous discussions and understandings.1
Integration clauses are key when there is a dispute between two or more contracting parties and one party wants to use prior or contemporaneous discussions to contradict or explain terms within a contract.
By way of example, suppose that Party A negotiates to sell Party B 100 “type-1” gears for a specified sum. The parties sign a contract which states that Party A agrees to sell Party B 100 “industry standard gears” for a specified sum, but with no reference to “type 1” in the description. Party A delivers 100 “type-3” gears (considered “industry standard”) and demands payment. Party B refuses to pay. Party B wants to use communications between the parties before the contract was signed to show that Party A was to deliver 100 “type-1” gears. Party A, on the other hand, claims that the gears delivered are “industry standard” and the contract contains an integration clause that excludes prior or contemporaneous agreements.
How would a court decide whether the pre-contract communications about “type-1” gears can be used? Determining whether the written contract was meant to be the exclusive embodiment of the parties’ agreement is known as determining whether the contract is “fully integrated.” Thus, the existence of an integration clause is a key factor because an integration clause is typically conclusive as to the issue of integration. The court will therefore look at the contract to determine whether the parties intended the written agreement to be a final and complete expression of their understanding. (Code Civ. Proc., § 1856, subd. (d).)
California has codified (i.e., set out by statute) many rules of contract interpretation; these rules apply to all contracts, absent exceptional circumstances. Civil Code § 1635. The basic goal of contract interpretation is to give effect to the parties’ mutual intent that existed at the time of contracting. Civil Code § 1636. When an agreement is set forth in a final written contract, the parties’ intent is determined from the writing alone, if possible. Civil Code § 1639. “The words of a contract are to be understood in their ordinary and popular sense” (Civil Code § 1644), and the terms of a final, integrated contract “may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement” (CCP § 1856).
Nevertheless, in our example above, Party B may still be able to submit evidence that the agreement was for 100 “type-1” gears. This is because a written contract “may be explained or supplemented by evidence of consistent additional terms unless the writing is intended also as a complete and exclusive statement of the terms of the agreement.” Code Civ. Proc., § 1856, subd. (b). Also, technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense. Civil Code § 1645; Cal. Civ. Proc. Code § 1856 (“The terms set forth in a writing described in subdivision (a) may be explained or supplemented by course of dealing or usage of trade or by course of performance.”).
Thus, the dispute between the parties in our example above will center on the court’s determination as to whether the prior and contemporaneous statements are admissible as consistent additional terms and/or to explain what “industry standard” means in this context.
1 Grey v. Am. Mgmt. Servs., 204 Cal. App. 4th 803, 805 (2012).
California provides various exclusions from reassessment of property tax when a “change of ownership” occurs. One of the most common exclusions is used to prevent reassessment for transfers from a parent to a child or from a grandparent to a grandchild (often referred to as the “parent-child exclusion”). However, it is important to understand when a “change in ownership” occurs and how long you have to apply for an exclusion from property tax reassessment.
“Change of Ownership”
Generally, Revenue & Taxation Code Sections 60 through 62 define the events (i.e., the sales and transfers) that trigger property tax reassessments under provisions of the California Constitution, commonly known as Proposition 13. These trigger events are known as a change of ownership. Generally, whenever a change of ownership occurs that is not subject to an exclusion provided under the Revenue and Taxation Code, the transferee must file a change in ownership statement in the county where the real property is located. Cal. Rev. & Tax. Code § 480(a).
Revenue and Taxation Code section 60 defines a “change in ownership” as “a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest.” The transfer of a fee interest is commonly accomplished via a sale from one person or entity to another.
Transfers can also be through legal trusts. In fact, transfers between parents and children typically take place through trusts that are set up by the parent(s) for the benefit of the child after the parent passes away. The Revenue and Taxation Code also provides that circumstances constituting a “change in ownership” occur when any interests in real property which vest in persons other than the trustor (i.e., the trust creator) or when a revocable trust becomes irrevocable (such as the parent/trustor passing away).
Thus, there is a change of ownership when the children receive the full present interest in real property, even when the property remains in the trust. Luckily an exclusion is available to prevent a costly property tax reassessment, but must be timely claimed.
The Parent-Child Exclusion
Certain constitutional initiatives (including Propositions 13, 58, and 193) were passed that provide for exclusions to reassessment when the transfer is from a parent to a child or from a grandparent to a grandchild. Those initiatives were codified in the California Revenue & Taxation Code, which states (in relevant part) that “a change in ownership shall not include the purchase or transfer of real property . . . between parents and their children.” Cal. Rev. & Tax. Code § 63.1.
But, in order to avoid reassessment under the parent-child exclusions described above, once there is a change in ownership a claim for the exclusion must be filed within three (3) years after the date of the purchase or transfer of real property, or prior to transfer of the real property to a third party (whichever is earlier). If no claim for a parent-child exclusion is filed within the three (3) year period, then it may be filed within six months from the date of mailing of a notice of supplemental or escape assessment that was issued as a result of the purchase or transfer of the real property. Cal. Rev. & Tax. Code § 63.1.
In certain types of litigation, including litigation involving real property and corporate assets, a party (typically the Plaintiff) will request that the Court appoint a receiver, or the Court may decide to appoint a receiver without being asked.
A receiver is neutral person who is not a party to the litigation who takes possession of and manages property or assets belonging to one or more of the litigants. California Rules of Court Rule 3.1179.
A receiver is an agent for the court, not the litigants. Thus, the receiver holds or manages the property or the assets “for the benefit of all who may have an interest in the receivership property.” California Rules of Court Rule 3.1179.
Generally, a receiver has the power to bring and defend legal actions, to take and keep possession of property, to receive rents, collect debts, to make transfers, and generally do anything with respect to the property that the Court may authorize. Code of Civil Procedure § 568.
There are specific circumstances that control when to appoint a receiver. Code of Civil Procedure § 564. One common circumstance is the appointment of a receiver to manage and hold the property and assets of a corporation that is in the process of being dissolved. Code of Civil Procedure § 565.
At the request of any creditor or stockholder of the corporation, the Court in the county where the corporation conducts business or has its principal place of business may appoint one or more persons to be the receiver of the corporation. The receiver may take charge of the corporation’s property, collect the debts and property due and belonging to the corporation, and to pay the outstanding debts of the corporation as necessary. The receiver may also divide any of the corporation’s income, money, and other property among the stockholders of the corporation.
A receiver is particularly helpful in circumstances where one or more shareholders of a corporation believe that other shareholders are embezzling funds by paying phony accounts payable, transferring assets to other entities, skimming accounts, etc. By appointing a receiver, the Court and the requesting party may be able to stop improper or illegal activity and preserve the remaining assets and property of the corporation. Also, as stated above, the receiver can bring an action to recover assets and property as it sees fit.
As we discussed in our blog last week, a foreign corporation or other business entity transacting business within California must comply with the certification requirements of Corporations Code § 2105 and obtain a Certificate of Qualification. As set forth in the following list, the consequences for failing to comply with the California Corporations Code (the “Code”) can be harsh.
A foreign entity is not permitted to maintain an action or proceeding within California regarding business transacted intrastate until it comes within compliance of the Code.
Transacting unauthorized intrastate business is deemed as consenting to the jurisdiction of California courts in any civil action arising in California in which the entity is named as a defendant.
The entity may be subject to a per diem (per day) penalty of $20.00 for each day that unauthorized intrastate business is transacted.
Prosecution may be brought by the California Attorney General and an additional money penalty may be sought against the entity.
The harsh consequences described above can be avoided by obtaining a Certificate of Qualification. Under Corporations Code § 2105, in order to obtain that certificate a foreign corporation or other business entity must file a form prescribed by the Secretary of State that is signed by a corporate officer or a trustee stating, among other things:
Its name and the state or place of its incorporation or organization.
The street address of its principal executive office.
The street address of its principal office within California, if any.
The name of an agent for service of legal process located within California.
Irrevocable consent to service of process directed to it upon the California agent designated
Affirmation of compliance with certain insurance requirements, if applicable.
Once the foreign entity makes all appropriate filings and pays the associated filing fees it receives a Certificate of Qualification from the Secretary of State.
The corporation may then maintain or refile a case that had been dismissed because of its non-compliance. However, and importantly, the corporation must be cognizant of the otherwise applicable statute of limitations and refile promptly if necessary. If refiling an action that had previously been dismissed, the entity must file receipts and evidence of compliance (such as the Certificate of Qualification) with the clerk of the court.
We have previously written about doing business in California, and how the California Corporations Code uses a “transacting intrastate business” test. Importantly, if a corporation or other entity is deemed to be doing business in California under the “transacting intrastate business” test, that entity must obtain a “Certificate of Qualification” under Corporations Code § 2105. This post will look at what will and will not constitute “transacting intrastate business.”
Transacting Intrastate Business
Transacting intrastate business means that the entity or some part thereof enters into or conducts repeated and successive business transactions (sales, deals, etc.) in California. Like many legal tests, certain factors will be weighed to determine whether or not the test is satisfied. To assist courts and businesses in determining what may or may not qualify as transacting intrastate business, Corporations Code § 191 sets out what activities will not be considered to be transacting intrastate business, although a listed activity may be taken with other activities that, taken together, constitutes transacting intrastate business. Some of the protected activities include:
(1) Maintaining or defending any action or suit or any administrative or arbitration proceeding, or effecting the settlement thereof or the settlement of claims or disputes.
(2) Holding meetings of its board or shareholders or carrying on other activities concerning its internal affairs.
(3) Maintaining bank accounts.
(4) Maintaining offices or agencies for the transfer, exchange, and registration of its securities or depositaries with relation to its securities.
(5) Effecting sales through independent contractors.
(6) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where those orders require acceptance outside this state before becoming binding contracts.
(7) Creating evidences of debt or mortgages, liens or security interests on real or personal property.
(8) Conducting an isolated transaction completed within a period of 180 days and not in the course of a number of repeated transactions of like nature.
Likewise, a foreign corporation will not be considered to be transacting intrastate business solely because one of its subsidiaries transacts intrastate business. A foreign corporation or other entity will also not be considered to be transacting intrastate business solely because of its status as any one or more of the following:
(1) It is a shareholder of a domestic corporation.
(2) It is a shareholder of a foreign corporation transacting intrastate business.
(3) It is a limited partner of a domestic limited partnership.
(4) It is a limited partner of a foreign limited partnership transacting intrastate business.
(5) It is a member or manager of a domestic limited liability company.
(6) It is a member or manager of a foreign limited liability company transacting intrastate business.
In addition to the above, it is important to note that, in the digital age, an entity conducting significant business over the internet may have sufficient contacts with California to allow a court to exercise personal jurisdiction over the entity. Furthermore, California law permits a plaintiff to conduct initial discovery against a defendant corporation or other entity to determine whether or not the corporation has been doing business within the state.
Section 16600 of the California Business and Professions Code prohibits contracts from restraining individuals “from engaging in a lawful profession, trade, or business of any kind.” While the reach of Section 16600 is broad (recently reaching as far as the Delaware Court of Chancery), it has traditionally been applied only to employment contracts or agreements that contain non-competition or non-compete clauses where the former employee is prevented from working with a competitor.
But what about a settlement agreement that prohibits employment with a former employer, i.e., an agreement that a former employee can only work for competitors? Last week the 9th Circuit Court of Appeals addressed that very issue in Golden v. California Emergency Physicians Medical Group, No. 12-16514, 2015 WL 1543049 (Apr. 8, 2015).
In that case, Donald Golden (“Golden”), an emergency room doctor, sued his former employer, California Emergency Physicians Medical Group (“CEP”), and others alleging various causes of action including racial discrimination. In open court CEP agreed to pay a “substantial monetary amount” to Golden, and Golden agreed to withdraw his claims against CEP and “waive any and all rights to employment with CEP or at any facility that CEP may own” now and in the future. (Notably, CEP is a consortium of more than 1,000 physicians and staffs and manages emergency rooms and inpatient centers throughout California.)
Golden later refused to sign the settlement agreement. The district court ultimately granted a motion by Golden’s former counsel to intervene and ordered that the settlement agreement be enforced. Golden appealed to the 9th Circuit on the single issue that the settlement agreement was void under Section 16600.
After addressing the issue of ripeness, the majority began by noting that the California Supreme Court had not ruled on whether Section 16600 applies outside of “typical so-called ‘non-compete covenants,’” and specifically “whether a contract can impermissibly restrain professional practice, within the meaning of the statute, if it does not prevent a former employee from seeking work with a competitor and if it does not penalize him should he do so.”
The majority found that the breadth of the statute meant that Section 16600 was not so limited and that the district court improperly determined that the settlement agreement need not comply with Section 16600. As the court noted, Section 16600 prohibits “every contract” (not specifically excepted by another statute) that “restrain[s]” someone “from engaging in a lawful profession, trade, or business.” Therefore, Section 16600 applies to all such restrictions “no matter [their] form or scope.” The case was reversed and remanded to the district court for further proceedings.
Notably, former 9th Circuit chief justice Alex Kozinski filed a dissenting opinion accusing the majority of ruling on the case despite the fact that, according to him, “the settlement agreement does not limit Dr. Golden’s ability to practice his profession at this time—except to the extent that he can’t work for CEP.” In his opinion, the majority misconstrued Section 16600 and allowed it to preserve “an unfettered right to employment in all future circumstances, no matter how remote or contingent.” Judge Kozinski would have dismissed the case for lack of standing until Golden had actually been fired or denied a position due to the settlement agreement.
Previously on the blog we discussed how non-compete agreements in California are presumed void unless they meet one of two very narrow statutory exceptions. A recent decision from the Delaware Court of Chancery further emphasized the reach and effect of this presumption by upholding a California employee’s right to contract despite a non-compete agreement in an employment contract governed by Delaware law.
Specifically, in Ascension Insurance Holdings, LLC v. Underwood et al., the Delaware Court addressed the issue of whether a non-compete provision governed by Delaware law could be enforced against a California-based employee competing against his California-based employer. Ascension Insurance Holdings, LLC v. Underwood et al., C.A. 9897-VCG (Del Ch. January 28, 2015).
Ascension is a limited liability company incorporated in Delaware, but its principal place of business is in California. Ascension acquired the assets of another company and as part of the acquisition Underwood entered into agreements not-to-compete with Ascension or its subsidiary Alliant Insurance Services, Inc. (“AIS”), where Underwood had been previously employed.
Underwood allegedly began competing in violation of the agreement’s non-compete, and Ascension sought an injunction seeking to enforce the non-compete against Underwood. The defendants argued that the covenant was not enforceable as it was against the public policy of California. However, Ascension argued that the covenant not-to-compete signed by Underwood contained a Delaware choice of law provision, and therefore the covenant was enforceable.
The Delaware Court of Chancery concluded that California law, not Delaware law, applied. Despite the fact that the employment agreement contained a Delaware choice-of-law provision, the court did not enforce the non-compete agreement and denied the request for an injunction. The court noted that it does not have to automatically defer to the parties’ choice of law selection, but rather examined whether enforcement of the non-compete would conflict with California’s strong statutory policy against non-compete agreements. In fact, the court found that such a conflict did exist, and it also found that California’s interest in upholding its policy against the enforcement of non-competes outweighed Delaware’s interest in enforcing the non-compete agreement.
The impact of this case is significant in light of the fact that many companies chose to incorporate in Delaware but principally operate in California, and that those companies may also choose to apply Delaware law to their contractual agreements. A recent report found that out of 211,929 observed businesses nationwide, 54.57% incorporated in Delaware. The next biggest state is New York with 5.15%, followed by California with 4.38%. The top 10 states make up over 80% of all corporations.
If you have any questions about on-compete clauses, consult with an experienced attorney. Ezer Williamson Law provides a wide range of both transactional and litigation services to individuals and businesses. Contact us at (310) 277-7747 to see how we can help you.
Restrictive covenants are contract clauses that limit a contracting party’s future conduct. A restrictive land covenant prevents certain use of the land. In this article, we will discuss restrictive land covenants, and how to enforce them in California.
In general, restrictive land covenants serve the purpose of enforcing neighborhood presentation standards. These are your restrictive easements, Covenants, Conditions, and Restrictions (“CC&Rs”), and other Home Owner’s Association rules. They can range from mandating where a home owner puts his trash cans to the permissible colors of a home’s façade. Such covenants are typically written into a deed, or at least referenced in the deed and recorded. Nahrstedt v. Lakeside Village, 8 Cal.4th 361 (1994). Restrictive land covenants are usually created by developers of a planned community, and enforced by community representatives or land owners.
Restrictive covenants “run with the land.” This means that they are tied to the property (land), and not to a specific owner(s). In other words, the limitations of a restrictive land covenant are legally binding for anybody who subsequently buys the property.
A restrictive land covenant is enforceable as long it was recorded, it is being enforced in a fair and non-discriminatory manner, and there is still an individual or group benefiting from it. It can be enforced by any individual land owner who benefits from the restriction, or the collective homeowner’s association if there is one. (Cal. Civ. Code §5975).
For the most part, homeowner’s associations are the principal enforcers of restrictive land covenants. California’s Civil Code authorizes these types of associations to initiate legal action, defend, settle, or intervene in litigation, arbitration, mediation, or administrative proceedings on behalf of the association membership (Cal. Civ. Code §5980). An association can take action to enforce CC&Rs, resolve issues concerning damage to common areas, and similar land-use matters.
Steps for enforcing a restrictive land covenant will vary based on the planned community. For example, one particular homeowner’s association may have outlined provisions for commencement of an enforcement action. In the absence of a homeowner’s association, the land owner seeking to enforce a restrictive land covenant can sue. A plaintiff in an action seeking to enforce CC&Rs can petition the court for an injunction against the defendant, which would require the defendant to stop non-compliance and seek money damages.
If you have any questions about restrictive covenants, consult with an experienced attorney. Ezer Williamson Law provides a wide range of both transactional and litigation services to individuals and businesses. Contact us at (310) 277-7747 to see how we can help you.
Previously on the blog, we provided some general information about the formation requirements for various business entities. One of the most commonly utilized entities in California is the limited liability company (LLC). Generally speaking, the steps for forming an LLC in California include the following:
Pick a Name for the LLC. Selection of the name is limited by the California Revised Uniform Limited Liability Company Act (RULLCA). See California Corporations Code Section 17701.08. The name must contain the words “limited liability company,” or some permitted abbreviation of those words, i.e., “LLC” or “L.L.C.”
File Articles of Organization (Secretary of State Form LLC-1) with the California Secretary of State’s office and pay the associated filing fee. The type of management that is desired, i.e., manager-managed by one or more managers or member managed, is indicated by checking a box on the Articles of Organization, and should be carefully considered.
Designate an Agent for service of process. The agent shall be an individual that is a resident of the State of California, such as the company’s lawyer if a resident, or a corporate agent that complies under California law (Corporations Code Sections 17701.13(c), 1505) and whose capacity to act as an agent has not been terminated.
File a Statement of Information (Secretary of State Form LLC-12) with the California Secretary of State’s office within 90 days after filing the original Articles of Organization (biennially after that) and pay the associated filing fee.
Although some states have publication requirements for a newly formed LLC, California does not. California also does not legally require a newly formed LLC to prepare and file an LLC Operating Agreement. However, it is highly advisable to have an LLC Operating Agreement prepared (and negotiated if there is more than one member) before making any filings with the Secretary of State.
If you have any questions about forming a limited liability company, consult with an experienced attorney. Ezer Williamson Law provides a wide range of both transactional and litigation services to individuals and businesses. Contact us at (310) 277-7747 to see how we can help you with your business law needs.