Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Suite 200
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
Email: MMM@MattensonLaw.com
Web: http://www.MattensonLaw.com
"The Square Footage Is 4,300, Not 5,500 As Represented!
Can I Sue?"

      Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters.

      In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses.

      Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967.

      Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue.

      This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index.

      In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.


THE SQUARE FOOTAGE IS 4,300, NOT 5,500 AS REPRESENTED! CAN I SUE?


Sellers and their brokers can be expected to extol the virtues of the home or business for sale. At what point does mere opinion, which turns out to be erroneous, become actionable misrepresentation?

In a recent California Court of Appeal decision, the Court reports that an individual purchased a residence and claimed that the seller and his real estate agent misrepresented its size. The agent advised the purchaser that the residence contained approximately 5,500 square feet. As it turned out, the size of the residence was about 4,300 square feet.

The seller and the real estate agent listed the property in the Multiple Listing Service. The description included "APX 5500", which means approximately 5,500 square feet. At the bottom of the listing, the following statement was made: "Information Deemed Reliable But Not Guaranteed."

A flyer was printed and distributed regarding the residence which also stated at the bottom as follows: "Above Information From Sources Deemed Reliable But Not Guaranteed."

The real estate agent indicated that she obtained the information regarding square footage from the seller's daughter who told her that "the architectural plans used to construct the property stated the house was 5,500 square feet." The decision also reports that the daughter and her husband were the owners at the time the house was constructed and that the agent obtained the information from her because her father, the current owner, did not speak fluent English.

The agent advised that she

"relied on this information . . . in submitting it to the Multiple Listing Service [and] declared that in her several visits to and visual inspections of the property she saw no indication that the house was not 5,500 square feet. She declared that at no time prior to close of escrow did she hear or have reason to believe that the house was not 5,500 square feet."

The complaining purchaser, self-employed as a stock trader, and holding a bachelor's degree in business administration from the University of Southern California, was endeavoring to "diversify by investing in residential real estate. He was looking for bargains or distress sales. He previously bid on two properties in Beverly Hills which were in foreclosure, but his bids were rejected as too low. His theory of investing in real estate was to find bargains on a per square foot basis. His prior two bids on the Beverly Hills properties were based on square footage, after he obtained comparable sales information from a broker."

As the litigation proceeded, the real estate agent could not produce a declaration by the seller's daughter confirming her comment and the architectural plans submitted in evidence showed only 5,334 square feet rather than the 5,500 square feet claimed to exist.

The seller and his real estate agent pointed out that the purchaser signed a contract providing that "Buyer is . . . aware that Broker makes no representations with respect to . . . square footage of the subject lot or the improvements thereon. Information, if any, on square footage provided in the Multiple Listing Service, including, without limitation, room sizes, and information materials concerning the Property are approximations only. By obtaining a survey of the Property or having a professional appraiser measure the Property, Buyer may verify actual . . . square footage."

The trial court sustained the defendants' position and granted a motion submitted by the defendants for Summary Judgment, a procedure by which a court will grant judgment if declarations submitted on behalf of the parties "show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Court of Appeal reversed this decision of the trial court and ordered the matter to proceed to trial.

The Court of Appeal observed that "a statement couched as an opinion, by one having special knowledge of the subject, may be treated as an actionable misstatement of fact", citing another case in which an owner salesman asserted that a foundation was properly built when in fact it was not.

Whether a statement is merely an opinion for which no action may be brought or is an actionable misrepresentation of fact is a question of fact for the jury. The Court thus concluded that:

"Given the rule that an owner of real property is presumed to know the size of the property and that a buyer is ordinarily entitled to rely on the owner's representation of size without having to hire an expert to discover its falsity, a jury could reasonably find that a grossly erroneous "approximation" of size is an actionable misrepresentation."

The moral of the story? Whether selling a home or a business, think before speaking. You might have to later explain your words to a jury!


[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from The Journal
Myles M. Mattenson 2008