CCP-10335-fraud-1980s

Between 1985 and 1990 two seemingly benign changes transpired with Code of Civil Procedure 1032 and 1033.5

Nobody would have thought to pay attention other than attorneys, and yet what they did here makes the 1974 Political Reform Act fraud and the 1985 CIV 1102 fraud look small.

They introduced prose, that, at face value that contradicted 110 years of practice and case precedent, and in the footnotes they claimed these were administrative changes not meant to affect law.

This is like an English teacher using "your" instead of "you're" and claiming any confusion was not worth a markdown.

The good news is that this can be reversed easily. The bad? It's been used for 40 years to slant the California Civil Contract System and Real Estate Brokerage System towards criminals and corrupt Brokerages and their owners, like Leon Black and Apollo Management group

Before 1985 vs After 1990

1986 vs 1990 - Sales Pitch to CEO’s to eliminate Legal Liabilities by Inverting Legal Lobby Incentives

2 "Adminstrative Changes" that shifted California's Civil Litigation Industry towards (Corporate) Defendants and Defense Attorneys unlawfully

Summary

Before 1985 vs After 1990

Image a Buyer in real estate was harmed by a gross act of disclosure fraud. The seller simple was NOT honest about acts related to concealing mold, structural defects, cat urine etc.

The table below shows the effects of tiny statutory shifts on people who were harmed by fraud related to a contract or breach of contract that had a seemingly straightforward attorney fee shifting clause in it for the prevailing party in any litigation. The statutory shifts are detailed later. This just shows their effects.

What is described above is NOT fiction. This is real and it really happened in California between 1985 and 1990. The result of this can be used to explain a MASSIVE PORTION of the dysfunction now occurring in California (Real Estate) Contract Disputes that looks like it’s fully unrelated to this problem.

When you realize the level to which we all engage in “contracts” with each other, companies and our government, and you see how this worked, and you see who it emboldened, and then how it builds on itself, many things will make sense that were perplexing to many of the honest folks wondering what on earth was happening to our communities.

1986 vs 1990 - Sales Pitch to CEO’s to eliminate Legal Liabilities by Inverting Legal Lobby Incentives

It’s believed it was big business that drove two changes in statute through the CA legislature in 1986 and 1990. The 1986 shift “looks reasonable”, but true intentions are questioned and it definitely set up the illegal 1990 shift. This is an example of boardroom dialogue that may have transpired with major Real Estate Brokerages or other Big Business to have driven the changes into being. CA Brokerages - $40M per day business in CA with no products of their own. They wanted to be able to hire morons for sales people, earn commissions and eliminate liability for errors, omissions and fraud. The wanted a crime pays model while minimizing blowback.

2 "Adminstrative Changes" that shifted California's Civil Litigation Industry towards (Corporate) Defendants and Defense Attorneys unlawfully

1986 - CCP 1032 - “The ‘Prevailing Party’ Cost Shifting Statute”

In 1986 a change to CCP 1032 added the words “as a matter of right” to the cost shifting statement

“a prevailing party is entitled to recover costs in any action or proceeding”

became…

“a prevailing party is entitled ‘as a matter of right’ to recover costs in any action or proceeding”

NOTE: costs did NOT include Attorney fees, as had been that definition for 114 years…

What looks very benign and may NOT have changed much of anything in actuality, may have been used more so to change “perspective” on things to fraudsters and harmed parties in sales pitches, BUT It also also may have actually changed things as well, but that is still unclear at this time.

At the time of publishing these Chronicles, it is NOT clear if this actually changed anything in practice related to cost shifting or not.

1990 - CCP 1033.5 - The Definition of “Costs” for 1032

In 1990, a change to CCP 1033.5 redefined “costs” to include “Attorney Fees” in a manner that was never blurred that way for 118 years prior.

This was a deceitful and grossly fraudulent act when put in context of how it changed 1032 instructions for “cost shifting, inclusive of attorney fees for a ‘voluntary dismissal’”.

It was or should have been viewed as erroneous and fraudulent at the time anyone in the legal lobby was involved in making this change.

In fact, in the notes they claimed this was an administrative change only, not intended to change law, yet any attorney knows when prose at face value reads the opposite of what the intention was, they've committed fraud.

When this CCP 1033.5 definition change is put in context of CCP 1032 where cost shifting is combined, 1032 stated as of 1990,

In the event of a “voluntary” dismissal, all costs shift as a matter of right, including attorney fees when a contract clause includes those with no consideration for any facts surrounding the voluntary dismissal.

Thus, if a buyer was harmed by fraud of a seller to induce a real estate contract, sued the seller and then found out the seller was not liquid or worse yet, the seller died, the buyer would have to continue with litigation and win to avoid the automatic shifting of attorney fees.

This is an absurd requirement that was “created” by this simple little change that the congressional notes state was NOT supposed to do, but it did it at face value.

Whoever instigated this change introduced a “direct conflict” between a very simple and surmisable reading of the statues after 1900 that contradicted 118 years of prior practice and existing case precedent (Olen 1978).

When statues are changed like this, the first and most important thing is to make sure they do NOT create conflicts with existing law or case precedent. Not only did that NOT transpire in this situation, when all facts are considered, the change had to be intentional and executed by those seeking to game the system.

This conflict is referred to in the Decoder and elsewhere as the “Rock of Hypocrisy" A “Rock of Hypocrisy” was thrown into the California Legal Lobby gears that was destined to destroy the system one way or another if it was not undone, AND it was not undone.

Summary

When combined, the 1986 and 1990 changes enhanced the way Attorneys could sell their services to defendants in fraud related to a contract and breach of contract cases and it destroyed the presentation Attorneys could make to harmed parties, by requiring them to disclose this statute and explain to them that it wasn’t proper and they could work around it, but it was always a risk. Such confusion also undermined the credibility of the statutes and legal system in the mind of a harmed party.

For 118 years prior to this change in 1990, Attorney fees were not considered “costs” in statutes AND they were NEVER recoverable as costs or damages by a defendant from a Voluntary Dismissal.

Changes of Statutes are NOT supposed to create contradiction with legal practice, Case Precedent or other statutes.

The intentions of the Legislature were noted in the Congressional Record.

It stated these changes were to be “remedial”, as something to clarify when and how attorneys were supposed to address attorney fees in contracts as part of the pleading process.

It states it was to clear up "ambiguity" and confusion about whether Attorneys had to plead those fees as damages in pleadings or if they could “just give notice via motion after litigation was over” and this resulted in the latter, according to them.

But why did they do that here? Why not in the “rules of court” or elsewhere?

Because this was no accident and in fact what it did had other negative affects too. No longer was there an argument ot be had up front about the potential for legal fees. Now they had to get to the end and figure it out, and most harmed parties couldn't take the risk.

This change, in addition to screwing up 118 year of law also REMOVED the ability to strike attorney fees as part of the initial pleadings dispute and it REMOVED the ability to push a hearing about Attorney fees until AFTER the dispute ended one way or another.

The problem with that is that the outcome of a decision on whether Attorney Fees might or might not shift may have caused the plaintiffs to dismiss early or the defendant to settle AND neither of those were good for Attorneys who bill by the hour.

The insertion of this “conflict” with long standing law, and “Rock of Hypocrisy" was or should have been known to have been in conflict with proper law at the time it was instituted. They used the excuse of “clearing up ambiguity” to create full fledged conflict.

This was the hijacking of the legal system, and every attorney benefited by an increase in litigation and/or the ability to encourage and partner with fraudsters to a far higher degree.

And yet, without this explanation, most could never imagine these seemingly small changes in prose could do all this and show just how gnarly it was.

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