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Table of Contents    Cover    MCLE Test

MCLE Article and Self-Assessment Test

TAKING INTEREST

California usury law offers a hodgepodge of rules and exceptions that can easily bewilder inexperienced lenders 

By Gary L. Dickson and Jonathan M. Jenkins 

Gary L. Dickson is a finance partner in the Los Angeles office of Latham & Watkins. Jonathan M. Jenkins is an associate with the firm. 

Few of us can claim to have honored Shakespeare s timeless axiom: neither a borrower nor a lender be. As a result, most of us are familiar with the high interest rates one must pay when borrowing through commercial lenders.1 However, California has a seldom publicized usury law that, while exempting most professional lenders, can create problems when an ordinary nonexempt company or average citizen makes loans or forbearances.2 

Understanding this law and its various exemptions is no easy task. In 1987, Professor Edward H. Rabin and Robert W. Brownlie described how attorneys "must grope their way through a labyrinth of constitutional, statutory, administrative, and decisional law" when trying to master California usury law: 

Almost every attorney occasionally represents a creditor or a debtor. Competent representation of such clients requires a knowledge of the usury laws. Unfortunately, California usury law is not easily accessible. The relevant legislative provisions are scattered throughout various sections of the Civil Code, the Financial Code, the Insurance Code, and the California Constitution. Federal statutes and regulations are also pertinent. Criminal penalties are printed in the Civil Code rather than in the Penal Code. The time-price doctrine, an important exception to the interest rate limits, is based mainly on decisional law.3 

As Rabin and Brownlie noted, California usury law has both statutory and constitutional components. The basic statute, passed by a general election in 1918, set the maximum allowable annual interest rate at 12 percent.4 Article 15, Section 1 of the California Constitution, however, superseded this statute in part by establishing a different maximum interest rate for nonexempt lenders. 

Under the current constitutional provisions, as last amended in 1979 pursuant to Proposition 2, the method for calculating the maximum interest rate depends on the reason for which the lender makes the loan. Loans intended for personal, family, or household purposes (with the exception of loans for the purchase, construction, or improvement of real property) are subject to a maximum rate of 10 percent per annum. For other loans, the maximum rate for nonexempt lenders is the greater of 1) 10 percent per annum or 2) a formula rate of 5 percent over the San Francisco Federal Reserve Bank s discount rate in effect on the 25th day of the month preceding the earlier of 1) the execution of the contract to make the loan or forbearance, or 2) the making of the loan or forbearance. 

In addition to establishing certain exempt classes, the constitution provides the California legislature with the power to create additional exempt classes or to establish maximum interest rates chargeable by classes of exempt lenders. Moreover, a legal principle known as the time-price doctrine operates to exclude a large number of transactions involving the payment of debt over time. 

Article 15, Section 1 of the California Constitution exempts a number of professional lenders from the interest rate limitations set by the California usury laws. For example, any banks "operating under and pursuant to any laws" are exempt, as are credit unions that are operating pursuant to any law establishing terms for their "incorporation, powers, management, and supervision."5 Industrial loan companies "as defined in and& operated under" the Building and Loan Association Act of May 5, 1931, (as amended) are also constitutionally exempt. 

Licensed pawnbrokers or personal property brokers are constitutionally exempt; however, the legislature has prescribed maximum interest rates for both classes. A pawnbroker is any person "engaged in the business of receiving goods, including motor vehicles, in pledge as security for a loan."6 The maximum interest rate pawnbrokers may charge is established by statute, and in no event may exceed 2.5 percent per month.7 A personal property broker is anyone who lends money in exchange for a security interest in personal property.8 The maximum interest rates for personal property brokers are essentially the same as those for pawnbrokers.9 

The California Constitution further exempts from usury laws any "nonprofit cooperative association" organized under Chapter 1, Division 20 of the Food and Agricultural Code.10 Also exempt are any qualified businesses or corporations securing money or credit from any federal intermediate credit bank. Qualified entities are those that are "engaged exclusively in the business of marketing agricultural, horticultural, viticultural, dairy, livestock, poultry and bee products on a cooperative, nonprofit basis." 

Loans that are "made or arranged" by California-licensed real estate brokers and secured in whole or in part by liens on real property are also constitutionally exempt. 

Proposition 2 also amended Article 15 to exempt from California usury laws any "successor in interest" to an exempt lender, but there are no reported California cases defining "successor in interest" in the context of the usury exemption. Black s Law Dictionary defines the term as "one who follows another in ownership or control of property." The absence of reported decisions clarifying this term is presumably due to its meaning being so well established that conflicts rarely, if ever, arise. 

Finally, it is worth noting that another provision of Proposition 2 amended Article 15 to exempt from the usury laws any "obligations of and loans made by" exempt lenders. The words "obligations of" could, in theory, mean that any loan to an already exempt lender would itself be exempt from the usury laws. However, it seems more likely that the addition of the words "obligations of" was an attempt to assure depository institutions that they were not inviting their depositors to commit usury when the institutions began paying interest greater than 10 percent on deposits during the high-inflation era in the late seventies and early eighties. Furthermore, the grammar and syntax of the exemption list would make it very difficult to support the contrary interpretation. In at least one case a California appellate court has agreed with this interpretation.11 

In addition to these constitutional exemptions, the California legislature has exempted a number of different types of lenders from the usury laws. Any loans made or arranged by federal savings and loan associations and federal savings banks and their service corporation subsidiaries are exempt.12 For purposes of this exemption, the term "service corporation" refers to a service corporation as described by the federal Home Owners Loan Act of 1933,13 California Financial Code Section 7252, or to a wholly owned subsidiary under Financial Code Section 7300. 

Similarly, California mutual and stock savings associations, savings and loan associations, and savings banks and their respective service corporation subsidiaries are also exempt, as are foreign savings associations authorized to conduct business in California (as well as their respective service corporation subsidiaries).14 

Non-California U.S. banks are exempt.15 However, non-U.S. banks are exempt only under certain circumstances.16 These include that, at the time of the loan, the bank 1) must have assets equal to at least $100 million, 2) must be licensed to maintain an office in California, 3) must be licensed or otherwise authorized by another state of the United States to maintain an agency or branch office in that state, or 4) must maintain a federal agency or federal branch in any state of the United States. 

In addition, bank holding companies and savings and loan holding companies and their respective nonbank/non-S&L subsidiaries are exempt.17 The word "subsidiary" is used as defined in the federal Bank Holding Company Act18 and the National Housing Act.19 Finally, when acting as a fiduciary for others, California state banks, national banks that maintain their main office or a branch in California, and any other U.S. banks that maintain a branch office in California are also exempt.20 

In 1994, the California legislature replaced the Consumer Finance Lender s Law(formerly Finance Code Sections 24000 et seq.) and the Commercial Finance Lender s Law (formerly Finance Code Section 26000) with a single California Finance Lender s Law. The newer law retains the old laws exemptions for both California-licensed commercial finance lenders21 and California-licensed consumer finance lenders. A consumer loan is any loan "the proceeds of which are intended by the borrower for use primarily for personal, family, or household purposes." However, loans of less than $2,500 are subject to maximum interest rates.22 

The California Government Code exempts public retirement or pension systems. Included within this exemption is any public retirement system "acting pursuant to the laws of [California] or the laws of any local agency." "Local agency" is defined as a "county, city, city and county, district, school district, or any public or municipal corporation, political subdivision or other public agency of the state, or any instrumentality of one or more of any such agencies."23 Out-of-state public retirement or pension systems are also exempt, so long as they are "created, authorized, and regulated" by the laws of another state.24 Although pension fund or retirement systems subject to the Employee Retirement Income Security Act of 197425 are expressly exempted by statute,26 this statutory exemption has been questioned as being preempted by ERISA.27 

Business and industrial development company licensees chartered by the Department of Banks are also exempt from the usury laws.28 Such entities are California corporations licensed to give business firms financial and management assistance under the Small Business Investment Act of 195829 and the regulations of the federal Small Business Administration.30 They are exempt from the usury provisions so long as they are licensed under California Financial Code Sections 31150 et seq.31 Non-California industrial loan companies are also exempt.32 

California s Civil Code exempts real estate secured loans or forbearances made or arranged by licensed California real estate brokers, whether made by brokers for their own account or as an agent for another.33 A broker will be deemed to have "arranged" a loan if the broker receives or expects to receive a fee for arranging the loan or forbearance. In general, the level of broker participation required to qualify for the exemption is not extraordinarily high.34 While this exemption appears to repeat one of the constitutional exemptions, it was enacted to clarify and interpret that provision. 

The legislature has also exempted from the usury laws any state or local government bonds and their purchasers and holders. This provision extends to any 

[L]oan, lease, installment sale, investment, forbearance of money, or other agreement between a user of the proceeds of or other moneys pledged to secure bonds and the issuer of the bonds, or entered into by or on behalf of the issuer of the bonds which 

provides for the use of the proceeds of the bonds or other moneys pledged to or securing the bonds, and the issuer of the bonds or any person acting on its behalf in connection with the foregoing.35 

Also exempt is evidence of indebtedness, such as corporate bonds, issued pursuant to qualification with the California Commissioner of Corporations under Corporations Code Chapter 2, Sections 25110 et seq. or Chapter 3, Sections 25120 et seq. Purchasers of qualified evidence of indebtedness are also exempt.36 

Evidence of indebtedness and its purchasers and holders are also exempted from the California usury law provided that 

1) The evidence of indebtedness is rated triple-B or better or investment grade commercial paper; or 

2) The issuer has securities listed on a national securities exchange or quoted on NASDAQ or is subject to Section 13 of the Securities Exchange Act of 1934 and has shareholders equity of at least $1 million and net income of at least $500,000 for three of the last four fiscal years; or 

3) The evidence of indebtedness is issued by a corporation with all outstanding shares owned by an entity that meets the requirements of the second condition.37 

Finally, licensed securities broker-dealers are exempt when acting pursuant to a current certificate issued under Corporations Code Section 25211.38 

There are also several miscellaneous exemptions to the usury laws: 

  • California admitted incorporated insurers are exempt so long as they are incorporated (not mutual) and hold a certificate of authority issued pursuant to California Insurance Code Sections 699 et seq.39    
  • Four-year collegiate educational institutions are exempt in several capacities, including loans to faculty and staff secured by residential dwellings, and student loans, which are subject to a schedule of maximum rates. However, community colleges are not eligible for these exemptions.40    
  • Cooperative corporations consisting of physicians are exempt. However, these cooperatives, which provide indemnity for medical malpractice, must consist solely of physicians and surgeons.41    
  • Lenders making shared appreciation loans secured by certain real property are also exempt. Shared appreciation loans are loans secured by owner-occupied property that give the lender a right to receive a share of the appreciation in the value of the security property.42 Such loans for seniors are similarly exempt, but are subject to a maximum rate.43   
  • Nonprofit corporations or unincorporated associations created for the purpose of managing a common interest development are exempt. The term "common interest development" includes condominiums, community apartment projects, planned developments, and stock cooperatives.44    
  • Bottomry contracts are statutorily exempt. Bottomry contracts provide that a vessel or its freight is security for a loan, which is to be repaid if the vessel survives a voyage. These contracts may lawfully stipulate a rate of interest exceeding constitutional limits, but a court may reduce the rate if it is found unjustifiable.45

The time-price doctrine applies when a seller makes a bona fide credit sale for which payments are extended over time. Then usury laws do not apply because there is no loan or forbearance involved. The time-price doctrine also applies to interest charges imposed when a buyer fails to pay off an account within a specified period of time.46 

In 1927 the California Supreme Court noted that in such cases, the owner of the property or commodity may "sell at a designated price for cash or at a much higher price on credit, and a credit sale will not constitute usury however great the difference between the two prices."47 However, in assessing the validity of such transactions, courts look to their substance and not their form, and rarely hesitate to strike down transactions that appear to be structured by the seller primarily for the purpose of lending money at a usurious rate.48 

The California Supreme Court recently extended the scope of the time-price doctrine by holding that it applies even to a credit-sale debt-restructuring settlement, in which the purchaser agreed to extend the time for payment of the debt in exchange for an increase in the interest rate and an additional $100,000 fee.49 Although at some level the credit restructuring would appear to be a forbearance to which the usury laws would apply, the court held that since the original transaction was a bona fide credit sale, any subsequent modification to that transaction was also exempt. 

Even though interest rate limitations do not apply in the realm of credit sales, these sales are frequently governed by other statutes. For example, the Unruh Act applies to the financing of retail installment sales contracts relating to consumer goods, that is, contracts in which a buyer agrees to pay a service charge in return for paying for consumer goods and services in installments.50 The Automobile Sales Finance Act51 regulates the maximum finance charges that automobile sellers may charge, although third-party financing arranged by the automobile seller is not subject to the act. 

The compounding of interest that is, the charging of interest on interest that has already accumulated is prohibited in California unless both parties have agreed to it in writing.52 Furthermore, courts have determined that it is usurious for a nonexempt lender to compound interest when the contract already calls for the maximum rate of interest permitted by law.53 

Variable rate loans present a somewhat different issue. The California Supreme Court has considered whether variable rate loans that bear interest at legal rates when they are made, but subsequently exceed the constitutional maximum, are legal. The court held that such transactions are legal so long as the parties acted in good faith and without intent to evade the usury laws.54 Since the issue of good faith remains an issue for the trier of fact to decide, the legality of any particular variable rate loan remains difficult to predict with confidence. 

In determining whether variable rate loans violate the usury laws, only the usury ceiling calculated when the loan originated can be taken into account. Thus, if the variable rate rises above that original usury ceiling it may violate the usury laws, even though a recomputation of the usury rate would yield a new, higher ceiling. 

Harsh penalties can be imposed on those who violate the usury laws. One of the most common penalties is the invalidation of the entire obligation to pay interest. In addition, the borrower may recover all interest paid within the two years preceding the commencement of the usury action.55 At the court s discretion, the lender may be assessed a penalty of up to three times the interest paid within the one-year period preceding the commencement of the action.56 The deduction or offset against principal of all usurious interest paid at any time can extinguish the entire obligation to repay principal if the borrower has made interest payments for a sufficiently long time.57 Violations of maximum rate schedules by industrial loan companies, consumer finance lenders, or personal property brokers void the contract between the lender and the borrower and extinguish the obligation to pay any principal, interest, or charges.58 

Usury may also be prosecuted as a felony.59 In recent times, however, it appears that such prosecutions occur rarely, if ever. 

Despite these heavy penalties, lenders frequently discount the probability that a borrower will file a usury claim because of a close personal or corporate relationship between the parties. These lenders should be advised that a usury action could unexpectedly arise if control of the borrower passes to a third party with a pecuniary or fiduciary obligation to bring a usury action, such as a bankruptcy receiver or guardian. 

Usury claims are exceptionally difficult to defend even when the lender alleges fraud or estoppel. Courts have held that borrowers and lenders are not in pari delicto with respect to usurious transactions. Thus, the mere fact that a borrower knew that a transaction was usurious, willingly paid usurious interest, and even took the initiative in seeking the loan will not provide a sufficient defense for the lender.60 

However, California cases establish that it is possible to purge loans or forbearances of usurious character through a voluntary agreement of the parties. In Kogan v. Bergman, the court of appeals held: 

Though a contract is tainted with usury, the abandonment of the usurious agreement and the execution of a new obligation for the amount of the actual debt free from the usury and bearing only legal interest, purges the original usury and makes the second obligation valid and enforceable.61 

Under such an agreement, the lender may retain previously collected interest that did not exceed the lawful maximum and may continue to collect interest at a lawful rate. 

Other appellate level decisions have concurred, at least insofar as they admit that such a purging is theoretically possible.62 However, in only two cases have lenders successfully argued that an initially usurious transaction was cured by a subsequent agreement,63 and in one of those cases, there was substantial doubt whether the initial transaction truly was usurious.64 Consequently, there is little authority describing in detail what measures lenders must take to ensure that a usurious transaction is purged. 

In Kogan, the one case in which a clearly usurious transaction was successfully purged, the borrower received a loan of $35,000. In return, the lender initially received a one-year promissory note bearing interest at the maximum legal rate for a principal amount of $47,500. 

Approximately four months into the loan term, the lender discovered that the loan was usurious because of the note s overstated principal amount. The lender immediately contacted the borrower and insisted on correcting the transaction so that the note would evidence a loan of $35,000 bearing interest at 10 percent per annum, to which the borrower ultimately orally agreed. The lender further credited the borrower for the amount that had been unlawfully overpaid, and subsequent payments were adjusted to reflect the agreed-upon changes. The court held the credit and the payment adjustments sufficiently evidenced the oral modification of the original loan agreement to purge the transaction s usurious nature. 

Other California cases provide some guidance on what will not purge a transaction of its usurious character. For example, each of the following has been held to be insufficient: 

  • Simply executing a new or renewal note without returning interest already paid that exceeded the legal limit.65    
  • Obtaining a release without returning excessive interest or reducing principal by an amount equal to the excessive interest already paid.66    
  • A unilateral declaration by the lender, prior to the maturity of the loan term, of its intention to apply further interest payments to principal.67

In short, any efforts to purge a usurious transaction should include, at a minimum: 

  • Complete disclosure to the borrower of the usurious nature of the transaction;   
  • A lowering of the interest rate to one no higher than the legal maximum; and   
  • An offset against outstanding principal of all previously paid interest that exceeded the legal maximum.

Even without considering its criminal dimension, knowledgeable lenders rightly fear and respect the economic penalties imposed by the California usury law. It is ironic that the lenders paying the strictest attention to the law are those that are exempt from its reaches. The real trap for the unwary is that citizens and businesses not in the lending business may mistakenly emulate the policies of the exempt lenders that operate all around them and attempt to charge interest rates limited only by market forces. 


1 The current discount rate may be obtained by calling the Federal Reserve Bank of San Francisco Hotline at (415) 974-2230.

2 A forbearance is defined as "the giving of further time for the payment of a debt or an agreement not to enforce a claim at its due date." See Boerner v. Colwell Co., 21 Cal. 3d 37, 44, 145 Cal. Rptr. 380 (1978). 

3 Edward H. Rabin & Robert W. Brownlie, Usury Law in California: A Guide through the Maze, 20 U.C. Dav. L. Rev. 397 (1987). 

4 Civ. Code §1916-1. 

5 Fin. Code §15000 provides such a statute. Although the Fin. Code provision does not specifically exempt credit unions, it is sufficient to activate the constitutional credit union exemption, as evidenced by the statute s legislative history. 

6 Fin. Code §21000. 

7 Fin. Code §21200. 

8 Fin. Code §22009. 

9 Fin. Code §22303. 

10 Cal. Const. art. XV, §1. 

11 See Green v. Future Two, 179 Cal. App. 3d 738, 225 Cal. Rptr. 3 (1986). See also David M. Bosko & Thomas R. Larmore, Practice under the New California Usury Law, 20 Cal. State Bar J. 58 (Feb. 1980). 

12 Fin. Code §7675. 

13 Home Owners Loan Act of 1933, 12 U.S.C.A §1464(5)(c)(4)(B). 

14 Fin. Code §§7675, 5102. 

15 Fin. Code §3805. 

16 Fin. Code §1716. 

17 Fin. Code §§3707, 7675. 

18 Bank Holding Company Act, 12 U.S.C.A. §§1841 et seq. 

19 National Housing Act, 12 U.S.C.A. §1730a. 

20 Fin. Code §1504. 

21 California Finance Lenders Law, Fin. Code §§22000 et seq. 

22 Fin. Code §§22002-22004. 

23 Gov. Code §7509. 

24 Civ. Code §1916.2. 

25 Employee Retirement Income Security Act of 1974, 29 U.S.C.A. §§1001 et seq. 

26 Civ. Code §1917.220. 

27 See In re Seolas, 140 B.R. 266 (E.D. Cal. 1992) (holding that the exemption is preempted by federal ERISA law and invalid because it directly "relates to" ERISA regulation). But see J. Anthony Varr v. Gary L. Olimpia, 45 Cal. App. 4th 675, 53 Cal. Rptr. 2d 106 (1996) (holding that the exemption is not preempted by ERISA because it only has a "tenuous, remote or peripheral connection with covered plans" and ERISA has no "clear and manifest purpose" to override state law such as the California usury law exemption). 

28 Fin. Code §31410. 

29 Small Business Investment Act of 1958, 15 U.S.C.A. §§661 et seq. 

30 Fin. Code §31401. 

31 Fin. Code §31410. 

32 Fin. Code §18665. 

33 Civ. Code §1916.1. See, e.g., Nancy Stickel v. Joseph M. Harris, 196 Cal. App. 3d 575, 242 Cal. Rptr. 88 (1987); Dorothy Del Mar v. Dennis G. Caspe, 222 Cal. App. 3d 1316, 272 Cal. Rptr. 446 (1990); see also In re Francisco Castillo Lara v. Francisco Castillo Lara, 731 F. 2d 1455 (9th Cir. 1984). 

34 See James A. Jones v. Kenneth Kallman, 199 Cal. App. 3d 131, 244 Cal. Rptr. 609 (1988). 

35 Gov. Code §5906. 

36 Corp. Code §25116. 

37 Corp. Code §25117. 

38 Corp. Code §25211.5. See, e.g. David Thomason v. Bateman Eichler, Hill Richards, Inc., 245 Cal. Rptr. 319 (1988) (depublished). 

39 Ins. Code §1100.1. 

40 Fin. Code §§28000(a), (b), (c), and 28001. 

41 Ins. Code §1280.7. 

42 Civ. Code §§1917.005, 1917.020. 

43 Civ. Code §§1917.616, 1917.619. 

44 Civ. Code §§1351(a) and (c), 1366 (e). 

45 Harb. & Nav. Code §455. 

46 See Fox v. Federated Department Stores, Inc., 94 Cal. App. 3d 867, 156 Cal. Rptr. 893 (1979); Southwest Concrete Products v. Gosh Construction Corp., 51 Cal. 3d 701, 798 P. 2d 1247, 274 Cal. Rptr. 404 (1990). 

47 Verbank v. Clymer, 202 Cal. 557, 562, 261 P. 2d 1017, 1019 (1927). 

48 See, e.g. Golden State Lanes v. Fox, 232 Cal. App. 2d 135, 42 Cal. Rptr. 568 (1965) (assignment of lease and sublease with agreement to repurchase was actually a loan of money usurious on its face). 

49 Ghirardo v. Antonioli, 8 Cal. 4th 791, 883 P. 2d 960, 35 Cal. Rptr. 2d 418 (1994). 

50 Civ. Code §§1802.1, 1802.2, 1802.6. 

51 Automobile Sales Finance Act, Civ. Code §§2981 et seq. 

52 Civ. Code §1916-2. See, e.g. Arliss S. Curry v. Ann Moody, 40 Cal. App. 4th 1547, 48 Cal. Rptr. 2d 627 (1995). 

53 See Curtis v. Thaxter, 204 Cal. 439, 268 P. 630 (1928). 

54 See McConnell v. Merrill Lynch, Pierce, Fenner & Smith Inc., 21 Cal. 3d 365, 377-78, 146 Cal. Rptr. 371 (1978). 

55 See Stock v. Meek, 35 Cal. 2d 809, 816, 221 P. 2d 15, 20 (1950). 

56 Civ. Code §1916-3(a). See Burr v. Capital Reserve Corp., 71 Cal. 2d 983, 994, 80 Cal. Rptr. 345, 352, 458 P. 2d 185, 192 (1969) (within court s discretion to award treble damages). 

57 See Shirley v. Britt, 152 Cal. App. 2d 666, 670, 313 P. 2d 875, 877 (1957). 

58 Fin. Code §§18439, 22750. 

59 Civ. Code §1916-3(b). 

60 See, e.g., Techner v. Klassman, 240 Cal. App. 2d 514, 49 Cal. Rptr. 742, 749 (1966). 

61 Kogan v. Bergman, 244 Cal. App. 2d 613 at 623, 53 Cal. Rptr. 371 at 378 (1966) (quoting Whittemore Homes, Inc. v. Fleischman, 190 Cal. App. 2d 554, 12 Cal. Rptr. 235 (1961)). 

62 See Lamb v. Herndon, 97 Cal. App. 193, 275 P. 503 (1929); Credit Finance Corp. v. Mox, 125 Cal. App. 583, 13 P. 2d 937 (1932); Aspetia v. California Trust Co., 158 Cal. App. 2d 150, 322 P. 2d 265 (1958). 

63 See Kogan, 244 Cal. App. 2d 613, 53 Cal. Rptr. 371. 

64 See Credit Finance Corp., 125 Cal. App. 583, 13 P. 2d 937. 

65 See Westman v. Dye, 214 Cal. 28, 4 P. 2d 134 (1931); Shirley, 152 Cal. App. 2d 666, 312 P. 2d 875. 

66 See Aspeitia, 158 Cal. App. 2d 150, 322 P. 2d 265; Whittemore Homes, 190 Cal. App. 2d 554, 12 Cal. Rptr. 235. 

67 See Jue v. Bass, 299 F. 2d 374 (9th Cir. 1962) (applying California law). 


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