Archives of Reported Cases


RECENT APPELLATE CASES

No Toxic Air v Lehigh SW Cement Co

Cal Court of Appeal
Filed: 07/28/16

Lehigh sought a finding by the Santa Clara County Board of Supervisors that it had a right to run a quarry even though the predecessor owner did not obtain all of the requisite use permits. No Toxic Air opposed the petition. The Board granted it anyhow. NTA objects to that portion of costs attributable to attorneys preparing the administrative record, rather than paralegals. The trial court granted NTA's motion; this court reverses. The record shows that the use of attorneys was reasonable, given the complexity of the record, and the fees charged were reasonable.

Tag: Court award of costs

JAMS v Kinsella

Cal Court of Appeal
Filed: 07/27/16

Kinsella agreed to hire retired Judge Sonenshine after reading her biography on the JAMS website. He alleges that the biography was misleading and now sues JAMS and Sonenshine. This is a commercial speech case, so the anti SLAPP procedures cannot be used. SLAPP was not intended to apply to commercial advertising.

Tag: SLAPP Motions

People v Superior Court (Tejeda RPI)

Cal Court of Appeal
Filed: 07/25/16

The DA challenged Judge Goethals under CCP 170.6. The DA's office has been routinely challenging him under CCP 170.6 after adverse rulings in the "Dekraai" case. As a result, there has been a backlog in death penalty cases in Orange County. Nevertheless, under Solberg, there is no prohibition against the DA doing so. Thus the challenge is upheld.

Tag: Prosecutor Discretion

Ayala v Chappell (Warden)

Ninth Circuit
Filed: 07/20/16

This is a habeas corpus petition. Ayala claims ineffective assistance of counsel because his attorneys failed to call certain impeachment witnesses who were gang members. The attorneys had decided to eliminate all evidence that would show Ayala's gang affiliations. In doing so, they reasoned that Ayala would be more likely to be acquitted. That is the sort of tactical decision that does not amount to IAC.

Tag: Ineffective assistance of counsel

Garmon v County of Los Angeles

Ninth Circuit
Filed: 07/05/16

Garmon was an alibi witness at her son's trial. She gave consent for the release to the prosecution of medical records pertaining to her upcoming brain surgery. The DA's office issued a subpoena referring to her as the murder victim and asking for all of her medical records. The mis-statements are not entitled to absolute immunity. She thus has a civil claim.

Tag: Prosecutor misconduct


City of Petaluma v Superior Court

Cal Court of Appeal
Filed: 06/30/16

Outside Counsel conducted an investigation for the City into charges that a fire fighter was fired for illegal reasons. The report is subject to the attorney client privilege and thus not discoverable. Counsel was hired to advise the City Attorney, who in turn would decide how to advise the City to proceed. The "avoidable consequence defense" would not apply here, because the investigation occurred after the employee left and therefore could not take advantage of corrective actions available to employees.

Tag: Attorney-Client privilege

Reed v Gallagher

Cal Court of Appeal
Filed: 06/29/16

During a race for state Assembly, Gallagher stated, "legal records show that Reed is an unscrupulous lawyer." Reed sued for defamation. The trial court granted an anti-SLAPP motion. In reality, the legal records refer to Reed's scruples; the trial court ruling is upheld.

Tag: SLAPP

Ramos v Garcia

Cal Court of Appeal
Filed: 06/28/16

Ramos sued three people as joint employers who had wrongfully deprived him of wages. As to Manual Garcia, the court found him to be a manager, a co-employee, but not an employer. The trial court determined that this was a non-payment of wages under Lab C 218.5, therefore, there is no recovery by the successful defendant/employee like there would be if the person were determined to be an employer.

Tag: Court award of attorney fees

People v Romero

Cal Court of Appeal
Filed: 06/28/16

During rebuttal argument, the prosecutor stated that once the jury believed that there was evidence beyond a reasonable doubt that the defendant committed the crime, then the presumption of innocence disappeared. Well, it's not really incorrect and more rhetorical, so, no prosecutor misconduct.

Tag: Prosecutor misconduct

Butler v LeBouef

Cal Court of Appeal
Filed: 06/20/16

Court invalidated a will and trust by Patton leaving $5,000,000 to his attorney LeBouef. It appeared that the will and trust were procured by undue influence. LeBouef was not entitled to attorney fees for his role as attorney to the trustee. However, The trust was void, and reasonable attorney fees do not include fees to advance LeBouef's own fraud and misconduct.

Tag: Court award of attorney fees

Lohrer v Thomas

Ninth Circuit
Filed: 06/17/16

The prosecution finished early in the afternoon. Defense counsel asked for a continuance to the next morning. He indicated that if the other witnesses testified as hoped for, he would not call Lohrer to the stand. The Judge said, we are in trial, so put Lohrer on the stand now. Defense objection overruled. The decision to put Lohrer on the stand had already congealed (sic), so no IAC for calling him as a witness against himself.

Tag: Ineffective Assistance of Counsel

569 East County Blvd v Backcountry Against the Dump

Cal Court of Appeal
Filed: 06/16/16

Developer sued citizen group and several of its members for opposing its project, and the Court granted an anti-SLAPP motion. The defendant's request for attorney fees was reduced dramatically, based on conflicting affidavits as to the proper hourly rate as well as the hours incurred. That's judicial discretion.

Tag: Court award of attorney fees

Kirtsaeng v John Wiley & Sons

U S Supreme Court
Filed: 06/16/16

Publisher sued Kirtsaeng for buying textbooks in a foreign country and selling them in the USA. The Supreme Court resolved a long-standing difference in the Circuits by ruling such activity constituted a "first sale" and thus did not violate John Wiley's copyright. In determining Kirtsaeng's right to attorney fees, the Supreme Court resolves another issue and holds that the District Court should have taken into consideration the objective reasonableness of John Wiley's position. Back to the District Court.

Tag: Court award of attorney fees

Tillman v Rheingold

Ninth Circuit
Filed: 06/15/16

Legal malpractice arbitration was dismissed when the client ran out of funds and could not make a prehearing deposit. Under the Federal Arbitration Act, the District Court should have permitted the case to go to trial rather than grant the law firm's motion to dismiss.

Tag: Arbitration,Tag: Legal malpractice

Runningeagle v Ryan (Director)

Ninth Circuit
Filed: 06/10/16

No ineffective assistance of counsel under Martinez & Strickland. Most the evidence that counsel did not present was cumulative. A new mental health report was equivocal, thus not showing IAC and not showing prejudice.

Tag: Ineffective Assistance of Counsel

Ulrich v Walker

BAP 9th Circuit
Filed: 06/09/16

Debtor Boates paid attorney Walker $60,000 for anticipated non-dischargeability representation. B/K Trustee seeks the money. At the time that the money was paid, the Fee agreement was executory and thus could be rejected by the trustee. However, under the agreement, the funds were deposited in Walker's general account, so the funds were never transferred to Boates' estate. The court has to hold an evidentiary hearing on value of services rendered before the termination. The alleged violations of the Rules of Professional Conduct are irrelevant because Ulrich is a third party to whom Walker did not owe duties.

Tag: Quantum Meruit

Nickerson v Stonebridge

California Supreme Court
Filed: 06/09/16

An award of attorney fees under Brandt is properly included as compensatory damages in calculating the ratio of compensatory to punitive damages. It does not matter if the fees are awarded by the jury as part of its verdict, or post verdict by the Trial Judge.

Tag: Court award of attorney fees

Williams v Pennsylvania

U S Supreme Court
Filed: 06/09/16

In 1984, District Attorney Castille approved seeking the death penalty of Williams in this matter. In 2012, after a stay was ordered on habeas corpus, Castille as Chief Justice of the Pennsylvania Supreme Court voted to vacate the stay. This was a violation of due process, thus the case must be remanded to the Pennsylvania Supreme Court. Duh!

Tag: Prosecutor misconduct

Currie v McDowell (Warden)

Ninth Circuit
Filed: 06/08/16

Back in 2005, the Ninth Circuit granted a writ of habeas corpus to Currie due to Batson violations by prosecutor Brown. At the second trial, the Trial Judge ruled that Brown violated Batson and declared a mistrial.. In the third trial, Brown challenged African American juror Jones. The Trial judge recited reasons for the challenge to Jones before the prosecutor explained himself; thus, the usual deference to the Judge's evaluation of prosecutor credibility is eliminated. Once again, this Court grants the writ of habeas corpus due to a Batson violation. There was no order recusing prosecutor Brown from the 4th trial.

Tag: Batson

Matter of Burke

State Bar Court Review Department
Filed: 06/03/16

While under an administrative suspension for failure to pay child support, Burke signed responses to Rogs and appeared at a CMC. During the CMC, the Judge informed him that he was under suspension. He also committed UPL in four other matters. This is his third disciplinary case, showing violations of the

Gray v Superior Court

Cal Court of Appeal
Filed: 05/31/16

Gray challenged the use of an automated camera for traffic enforcement, for failure to comply with the Vehicle Code. He had a partial victory in the Supreme Court but was convicted of an infraction. He then filed for attorney fees under CCP 1021.5. The trial court denied the petition. This appeal is dismissed because the denial does not affect his "substantial rights," which is the only grounds for an appeal of an infraction.

Tag: Court award of attorney fees

Baxter v Bock

Cal Court of Appeal
Filed: 05/24/16

An arbitrator's disclosures under the MFAA should be as extensive as made in contract arbitration under CCP 1281.9. The facts of this case show that the arbitrator's law practice does not favor one side or the other, as was the case in Kors, and thus no reasonable doubt as to his fairness. The attorney did not prove bias either, so the award stands.

Tag: MFAA

Foster v Chapman (Warden)

U S Supreme Court
Filed: 05/23/16

DA used peremptory challenges against all 4 prospective jurors who were Black. The venire list highlighted all Black people on the list. Those four and another prospective Black Juror, were listed as definite "no" before voir dire. DA's explanations appear pretextual, especially as several are contradicted by the facts in the record.

Tag: Batson

Kelly v Wengler

Ninth Circuit
Filed: 05/23/16

Private contractor operated a state prison, and settled lawsuit with a promise pertaining to staffing. A year later, plaintiff determined that the contractor was falsifying staff reports. Contractor was held in contempt. Plaintiffs' counsel sought attorney fees. Trial court added a multiplier in part because it is difficult in Idaho to find attorneys willing to represent prisoners. Also, among difficulties was the last minute provision of discovery by defendant.

Tag: Court award of attorney fees

Conservatorship of Bower

Cal Court of Appeal
Published: 05/16/16

Mr. Bower is under conservatorship. Conservator and Mrs. Bower disagree over what expenses are properly community expenses. Expenses for Mr. Bower properly come under Prob C 3080, et seq. Costs of administering the conservatorship, including attorney fees, are governed by Prob C 2640, et seq. The community is responsible for supporting the conservatee, not the conservatorship.

Tag: Court award of attorney fees

Sheriff v Gillie

U S Supreme Court
Filed: 05/16/16

State Attorney General employs private attorneys for specified debt collection work, labels them "special counsel." Thus, it is ok for those, special counsel to send collection letters to debtors on Attorney General letterhead. (Unanimous)

Tag: Public Attorney issues

McClatchy v Coblentz Patch

Cal Court of Appeal
Filed: 05/10/16

Two years after suing several law partners for breach of duties as trustees, plaintiff added the law firm itself as a Doe Defendant. Summons quashed. The existence and identity of the law firm is all over the trust paperwork. Dicta implies that the effect of this ruling will be, the firm has a good statute of limitations defense

Tag: Fee dispute

Matter of DeClue

State Bar Court Review Department
Filed: 05/10/16

DeClue employed support staff with knowledge that the staff had committed UPL for several years for several different attorneys. He failed to supervise their work and they committed more UPL. He is responsible for the ethical breaches they committed on his watch. Recommendation: he should be actually suspended for six months, "and until" he makes specified restitution.

People v Cortez

Cal Supreme Court
Filed: 05/09/16

During closing argument, the prosecutor said that reasonable doubt meant, "I believe I know what happened and my belief is not imaginary." But it was part of a larger discussion, and in response to the defense argument that reasonable doubt meant even a mother would believe her child was guilty. Not misconduct, but on a 4-3 vote.

Tag: prosecutor misconduct

Rishor v Ferguson

Ninth Circuit
Filed: 05/06/16

Rishor waived counsel and defended himself in pro per. He won some, lost some, and got one reversed on appeal. Held, the trial judge did not have to hold a second hearing on Rishor's pro per status unless Rishor asked.

Tag: Right to counsel

J-M Manufacturing Co. Inc. v. Phillips & Cohen LLP

Cal Court of Appeal
Filed: 05/02/16

Phillips & Cohen brought a qui tam case against J-M, in which the jury found J-M liable for falsely representing that its pvc pipes met community standards. The law firm issued a press release fairly describing the jury verdict, privileged under CC 47(d)'s fair report privilege. Thus, J-M's suit against the firm for defamation and trade libel was properly dismissed.

TAG: Attorney duty to third party

Li v. Yan

Cal Court of Appeal
Filed: 05/02/16

In a prior related case, Li was awarded in excess of $500,000. as a result of Yan's malfeasance while a law student and later as an attorney. Yan was disciplined by the State Bar in 2012 based on the same facts. This case involves Li's unsuccessful efforts to examine Yan as a judgment debtor. Yan appealed on spurious jurisdictional grounds and spurious claims of privilege as to his tax returns. Yan's appeal was rejected and the Court affirmed the order below, that Yan appear and produce documents.

TAG: Legal malpractice.

Osbourne v. Todd Farm Service

Cal Court of Appeals
Filed: 05/02/16

The Court granted defendant's motion in limine, barring counsel from mentioning alleged facts for which there was no evidence or documentation whatever. Nonetheless, throughout the case counsel repeatedly mentioned matters ruled inadmissible.
Counsel's conduct was flagrant and repeated sufficiently to warrant the Court's dismissal with prejudice.

Yamada v. Nobel Biocare Holding AG

Ninth Circuit
Filed: 04/20/16

Yamada and defendant Nobel Biocare reached a settlement in Yamada's class action. When Yamada sought a fee award, the Court refused Nobel's motion for access to the time records submitted in camera on the grounds of judicial efficiency. Held, reversed and remanded. Due process afforded Nobel the right to inspect timesheets on which a District Court relied in issuing a fee award.

TAG: Court award of attorney fees

Almanor Lakeside Villas Owners Association v. Carson

Cal Court of Appeal
Filed: 04/19/16

Owner's Association sued the Carsons for violation of certain CC& R's after the Carsons leased their properties as short-term vacation rentals. Owner's association prevailed on certain counts and was therefore entitled to attorney's fees and costs under fees provision of Davis-Stirling Act.

TAG: Court award of attorney fees

D P Pham LLC v Cheadle

Cal Court of Appeal
Filed: 04/15/16

One of the parties sought to disqualify opposing party's counsel because counsel submitted clearly privileged documents, correspondence between attorney and client, to support a motion. The Court improperly proceeded with an in camera review of the privileged documents, and made a ruling based thereon. Such review is prohibited under Evidence Code 915. Reversed and remanded to determine if use of privileged documents warranted disqualification.

TAG: Attorney-client privilege

Consumer Financial Protection Bureau v. Chance Gordon

Ninth Circuit
Filed: 04/14/16

CFPB brought action against attorney Gordon for alleged loan modification violations, resulting in summary Judgment against Gordon for $11.4 million in disgorgement and restitution. Attorney's defense was that CFPB's director was improperly appointed and his appointment improperly ratified, so as to lack authority for making the prosecution. Held,
a subsequent appointment and ratification was effective to cure deficiencies, so monetary judgment was affirmed except for that amount prior to second appointment and ratification.

TAG: Attorney discipline procedure

In Re Scheer

Ninth Circuit
Filed: 04/14/16

Attorney Sheer was suspended from the practice of law until she reimbursed a client for an improper fee. She filed bankruptcy, which discharged the debt. Thus, she is entitled to reinstatement of her law license under 11 U.S.C. 525(a), which prohibits revocation of a license "solely" due to a discharged debt.

Tag: Attorney civil liabililty for unethical conduct

Matter of Carver

State Bar Court Review Department
Filed: 04/12/16

Carver was properly served with Notice of Disciplinary Charges, done by certified mail under Bus & Prof 6002.1. He had instructed his mail service to refuse certified mail. When the mail went through, he switched to a USPS P. O. Box that would not accept certified mail. The State Bar warned him to file an answer or default would be taken. He did not act. His default was taken and he was enrolled inactive. He then appeared in court on behalf of a client. Held, UPL, violation of his duties under Bus & Prof 6068(a). His conduct also amounted to moral turpitude under Bus & Prof 6106, because he willfully blinded himself about his membership status. This was his third offense, so disbarment is recommended.

Gallegos v. Ryan

Ninth Circuit
Filed: 04/07/16

The evidence showing that defendant raped and murdered a young girl was overwhelming. There were no facts on which to base a defense to the rape and murder. Defendant's counsel's decision to concede defendant's involvement, under the circumstances, does not warrant habeas relief.

TAG: Ineffective assistance of counsel

Liao v. Junious

Ninth Circuit
Filed: 04/01/16

Liao was convicted of assaulting and attempting to kill his stepson in 2003. His defense was that he is a sleepwalker and could not have formed the requisite intent. Liao's attorney failed to produce medical evidence needed by his expert, that would have clearly established the "crucial" defense. The error was clearly not harmless; it went to the heart of the conviction. Now, as a parolee in 2016, Liao was granted habeas corpus.

TAG: Ineffective assistance of counsel

Luis v. U.S

US Supreme Court
Filed: 03/30/16

Federal statute 18 U.S.C. & 1345 (a) (2) permits Government to freeze assets of a defendant related in any fashion to the planning or commission of crime. Here, the sum of 2 million was untainted in any way but lower court nonetheless froze the assets, against defendant's claimed 6th Amendment right to use untainted funds to retain counsel. Supreme Court reversed. Sixth Amendment right to counsel prevails over government's attempt to secure fines, fees, etc. where funds are completely unrelated to criminal activity.

TAG: Right to Counsel

People v. Fedalizo

Cal Court of Appeal
Filed: 03/30/16

Representing himself, defendant admitted felony probation violation by committing another crime in a new case, and was sentenced to three years. After Proposition 47, he petitioned to recall his sentence in both cases. Court appointed counsel and defendant waived his right to appear at resentencing hearing. Without alleging that waiver was invalid for any reason, defendant claimed that his 6th Amendment right to self-representation and right to be present at hearing had been denied. Held, resentencing affirmed.

TAG: Right to Counsel

People v. Reyes

Cal Court of Appeal
Filed: 03/30/16

Reyes was convicted of various counts of sexual assault of a girl under age 18. Testimony at trial included the girl's statement that she was gay, but did not want her mother to know. In closing argument on rebuttal, prosecutor argued that another reason for lack of consent was the girl's sexual orientation. Defense counsel claimed to have been blindsided despite the trial testimony. Held, as in People v. Hill, (1967) 66 Cal. 2d 536, 562, it is not prosecutorial misconduct to argue facts based upon the record, so long as those remarks do no go beyond the record. Conviction affirmed. See also Modification of same date.

Tag: Prosecutor misconduct

Radcliffe v Hernandez

Ninth Circuit
Filed: 03/28/16

This class action against credit reporting companies settled. The settlement included a provision for class rep incentive awards to those class reps who supported the settlement. That clause created a conflict of interest between the class reps and the absent class members. That conflict does not require disqualification of counsel, because the DQ rule does not require automatic DQ in class actions.

Tag: Disqualification

Brooks v Yates (Warden)

Ninth Circuit
Filed: 03/28/16

Brooks' attorney missed the filing deadline for a habeas corpus petition. Brooks started inquiring about it before the deadline. Attorney did not tell him when deadline was. Attorney did not tell him of OSC, and attorney ignored repeated letters from Brooks asking for status report. This constitutes the "virtual abandonment" that could provide Brooks with relief. Case remanded to determine if Brooks was reasonably diligent once he learned of counsel's failure.

Tag: Ineffective assistance of counsel

Ling v PF Changs

Cal Court of Appeal
Filed: 03/25/16

Ling won a labor arbitration over missed meals, but she lost the big ticket item on classification as an exempt employee. The arbitrator awarded attorney fees to the employer and none to the employee. This award contravened clear statutory policy that attorney fee awards in overtime cases are one way - only the prevailing employee can get them. Since the issue was attorney fees and costs, it was proper for the Court of Appeal to correct the award rather than vacate it in its entirety. Thus, neither side owes attorney fees or costs to the other.

Tag: Court award of attorney fees

Ardon v City of LA

Cal Supreme Court
Filed: 03/17/16

During discovery, the City inadvertently released attorney-client privileged documents. Plaintiff contends that under Gov C 6254.5 in the Public Records Act, once released, the privilege is forever waived. Held, the Rico exception, that a party can show cause to retrieve inadvertently produced documents that are privileged, trumps Gov C 6245.5.

Tag: Attorney client privilege

IRMO Murchison

Cal Court of Appeal
Filed: 03/17/16

Court awarded family dwelling to wife, but she had to sell it in order to extinguish the community debt. She sold it to her attorney. Husband seeks to DQ wife's attorney after naming him as a witness to a post-trial hearing on whether the transfer met wife's obligations. Held, husband had no standing, because he had no stake in the transaction.

Tag: Disqualification

Costello v Buckley

Cal Court of Appeal
Filed: 03/16/16

Costello sued her former boyfriend Peter Buckley for repayment of a loan. Peter hired his brother Robert to defend him. Robert was disqualified because he had formerly represented her in a neighbor dispute and learned confidential information that he may be called upon to use in the present lawsuit. Note that the presumption in a "substantial relationship" argument is an alternative to proving that the attorney may have actually acquired confidential information.

Beauchamp v Anaheim Union High

Ninth Circuit
Filed: 03/16/16

Beauchamp seeks attorney fees after prevailing in an IDEA claim. The Ninth Circuit upholds an hourly rate of $400 for the attorney. In the contested hearing, the ALJ awarded fewer hours of counseling than the District offered in settlement; and the settlement offered tutoring that the ALJ did not award. Thus, the award was reduced from the $66,000 asked for, to $7,700.

Tag: Court award of attorney fees

Daire v Lattimore (Warden)

Ninth Circuit
Filed: 03/15/16

This was a fourth strike conviction. Defense counsel did not raise issues of Daire's history of mental health disorders. This court gives deference to the trial attorney's tactical decision, and additional deference to the trial court's findings. . It does not appear that the newly uncovered evidence would have altered the sentence. Thus, the Strickland standard was not met. Thus, under AEDPA, the conviction stands. Thus, no IAC.

Tag: Ineffective Assistance of Counsel

Ontiveros v Constable

Cal Court of Appeal
Filed: 03/14/16

Ontiveros, minority shareholder in Omega Electric, files this lawsuit against Constable, the majority shareholder. Moskowitz represents Constable and Omega, with consent given by Constable on behalf of himself and Omega. Ontiveros has vicarious standing to raise the issue. The allegations demonstrate an actual conflict of interest. Constable cannot waive for Omega. Moskowitz is DQ'd from representing Omega due to the loyalty issue. However, under Forrest and Blue Water, he is permitted to continue representation of Constable, because it is inconceivable that there are any secrets to be kept between Constable and Omega. Finally, though the case had been pending for over a year, litigation was still ongoing about the pleadings. For purposes of an estoppel issue, the stage of the proceedings is more important than its length.

Tag: Disqualification

Wearry v Cain (Warden)

US Supreme Court
Filed: 03/07/16

Wearry was convicted of murdering Walber, largely on testimony of Scott and Brown. Among the evidence not turned over to Wearry's attorney were statements of two inmates who heard Scott say that he wanted to get even with Wearry. Two attempts by Brown to get a better plea deal if he testified against Wearry; and a doctor whose opinion was that Brown could not have physically committed acts attributed to him in testimony of Scott and Brown. Habeas Corpus should have been granted.

Tag: Prosecutor Misconduct
Tag: Legal Malpractice

Sifuentes v Brazelton (Warden)

Ninth Circuit
Filed: 02/18/16

The D.A. challenged 9 black prospective jurors. The Court of Appeal upheld a trial court ruling that there was no purposeful discriminatory conduct. In this habeas corpus case, the Court of Appeal’s holding is entitled to double deference – first to the trial court’s findings, and second to the appellate court’s review. Thus, the Federal District Court should have denied the petition for habeas corpus.

Tag: Prosecutor misconduct

Younessi v Woolf

Cal Court of Appeal
Filed: 02/16/16

Plaintiffs failed to file an amended complaint and the court dismissed the case. Plaintiff’s attorney recited his personal fault in not doing so because he was distracted by other work. Since this was attorney fault, and occurred to the failure of an attorney to file documents, it is governed by the attorney fault standards in CCP 473(b), the motion to set aside the dismissal should have been granted.

Tag: Relief from default

Haeger v Goodyear Tires

Ninth Circuit
Filed: 02/16/16

After the case settled, evidence surfaced that Goodyear had suppressed discoverable evidence and did so with the knowledge of two of its attorneys. The federal court has inherent authority to issue sanctions under these circumstances. One attorney is sanctioned $540,000; both attorneys and a specific Goodyear executive are sanctioned $2,100,000 jointly and separately. The evidence was clear and convincing, though the Ninth Circuit declines to hold that such is a necessary standard of proof.

Tag: Court award of attorney fees,
Tag: Sanctions

San Diego Municipal Employees Assoc. v City of San Diego

Cal Court of Appeal
Filed: 02/09/16

City sued retirement board to compel it to obtain additional employee contribution to make up for investment losses. Union intervened on the side of the City. Case settled. Unions not entitled to attorney fees under CCP 1021.5. Their intervention was not necessary to obtain the result.

Tag: Court award of attorney fees
Tag: Attorney fees for private attorney general

Deck v Jenkins, Probation Officer

Ninth Circuit
Filed: 02/09/16

Deck thought that he had a date with an underage girl but it was a sting. He was convicted of attempted lewd act upon a child. The defense was, since he did not have intent to engage in sex that evening, the law required acquittal. The DA argued, even if the intent was not to do so that day, the next day or the next weekend was sufficient for intent. The trial judge realized that the jury did not know which argument was correct under the law but let them reach a verdict. Habeas Corpus granted; the defense was correct. The discussion seems to hold that an incidental mis-statement in a closing argument could be held non-prejudicial, but here the mis-statement was intentional and emphasized. En banc review denied; lengthy dissent from that vote is part of the opinion.

Tag: Prosecutorial misconduct

Uecker v Zentil

Cal Court of Appeal
Filed: 02/05/16

Bankruptcy Trustee sues attorney for LLC for assisting the LLC to perpetrate a fraud on investors. Demurrer was properly granted. Trustee stands in the shoes of the company as of the date of filing BK. Company was in pari delicto with defendant, and trustee has no right to sue because pari delicto is a defense against the company.

Tag: Malpractice

In Re Nakhuda

BAP Ninth Circuit
Filed: 02/04/16

Nakhuda’s attorney Shalaby filed 5 amended petitions before disclosing required assets, debts, and claimed exemptions. He made several assertions of law that were contrary to established bankruptcy law. The Bankruptcy Judge and the BAP found them to be "objectively frivolous." However, since this Sanction OSC was court initiated rather than party initiated, there had to be proof "akin to contempt," not merely unreasonable. Thus, the BJ’s sanction payable to the court and the suspension of Shalaby from practice are reversed. However, the disgorgement of attorney fees is upheld, because his services were neither necessary nor beneficial to the debtor. Rather, the services were detrimental to the estate, and they demonstrated a lack of skill, experience, and competence. His suspension of ECF privileges was proper even though the privileges have been reinstated. The temporary suspension may have disciplinary consequence.

Tag: Disgorgement,
Tag: Sanction

Liao v Junious

Ninth Circuit
Filed: 01/29/16

Defense counsel sought court approval for an expert sleep study of his client. The court granted the order but the clerk erroneously told the attorney’s associate that the motion had been denied. The absence of the study discredited the expert’s testimony. The error was IAC; habeas corpus granted.

TAG: Ineffective Assistance of Counsel

Martin Potts v Corsair

Cal Court of Appeal
Filed: 01/28/16

Corsair did not file answer to complaint, so default was taken and default judgment entered. Corsair’s attorney filed anaffidavit that it was his "mistake, inadvertence, surprise, or neglect" that resulted in failure to file an answer. No further explanation is required under CCP 473(b). Note that motions for relief from default based on other grounds do require an explanation.

TAG: Default relief for attorney error

Karnazes v Posner

Cal Court of Appeal
Filed: 01/27/16

Attorney Karnazes sued attorney Posner, attorney for opposing party Ares, alleging that Posner wrongfully obtained confidential information from Karnazes while promising to set up a payment plan from Ares to Karnazes. Clearly the communications were in contemplation of litigation with an adverse party. Anti-SLAPP motion granted.

TAG: SLAPP Motion,
TAG: Court Award of Attorney Fees.

Bucur v Ahmad

Cal Court of Appeal
Filed: 01/26/16

FedEx terminated its hauling contracts with Bucur, who eventually filed 5 lawsuits against overlapping defendants seeking damages for the contract termination. The Superior Court sanctioned him and his attorney in the 5th action, since he had lost the issues in the first case. The case discusses issue preclusion, collateral estoppel, res judicata, judicial estoppel, and judicial admissions, grounded in the theory of primary rights. The party and attorney were also sanctioned separately for this frivolous appeal

TAG: Attorney sanctions

USS-POSCO v Case

Cal Court of Appeal
Filed: 01/26/16

Employer USS-POSCO won a suit against former employee Case, for reimbursement of educational expenses, since Case quit shortly after completing an employer-paid set of classes. Employer was entitled to attorney fees. The statutory test in Lab C 218.5 changed after judgment was granted but before hearing on those fees. Held, attorney fee awards are "procedural" and thus the proper date for the test is the date of the hearing on attorney fees.

TAG: Court award of attorney fees

Stanger v McGee

Ninth Circuit
Filed: 01/15/16


Another Manuel Real special. This was a class action securities case that settled after two years of vigorous litigation for $3,780,000. Class counsel sought 25% in fees, approximately $944,000. The Court decided to use the lodestar method with a blended rate of $475, for around $666,000, and then reduced it to $466,000. This was an abuse of discretion. Among other things, the Ninth Circuit ruled that it was improper to reduce fees due to lumping of tasks without explaining why the groupings were inappropriate, or how the lumping affected the final fee award. When a court uses the lodestar, the reasonable rate times the reasonable hours is presumably the reasonable fee. Any adjustments should be the exception. The court should clearly show its rationale.

TAG: Court award of attorney fees

In Re Grand Jury Proceedings

Ninth Circuit
Filed: 01/14/16

The District Court properly found that there were adequate grounds to invoke the crime-fraud exception to the attorney client privilege. However, as a matter of first impression, the Ninth Circuit holds that, before ordering turnover of documents, the Court has to inspect them in camera and only order turnover of specific documents in furtherance of the crime or fraud.

TAG: Attorney client privilege

Klein v City of Laguna Beach

Ninth Circuit
Filed: 01/14/16

City of Laguna Beach denied Klein a sound permit based on a city ordinance that gave the City Manager the power to grant or deny them. Klein sued for nominal damages and to have the ordinance declared unconstitutional. The City amended the ordinance. The District Court ruled that it was constitutional but the Ninth Circuit reversed. After a second amendment to the ordinance, the Ninth Circuit upheld part and overruled part. Klein was awarded nominal damages. The district court ruled that since he did not win damages, no attorney fees were awarded per Farrar. Wrong. Farrar only applies to suits seeking substantial damages. Hensley and Gonzalez require an award of attorney fees for a vindication of constitutional rights.

TAG: Court award of attorney fees

Bravo v City of Santa Maria

Ninth Circuit
Filed: 01/12/16

Police shot off the door locks and SWAT team entered the Bravo residence, based on a search warrant that failed to disclose that the target of the search was actually in state prison. The family sued the police officers and the three local police agencies for civil rights violations, settled with some (Santa Barbara entities) for $360,000, of which $169,000 was attorney fees and $16,000 was costs. The family then proceeded to trial against the rest, City of Santa Maria defendants. The verdict was $5,000. The amount of the attorney fee award against the Santa Maria defendants was $1,000,000 and the cost award was $13,000. The case established and corrected deficiencies in the way Santa Maria inquired about custody status and executed nighttime SWAT team searches. Both the settled cases and the trial cases were intertwined. So the $1,000,000 attorney fee award was within the trial court’s discretion, as was the decision not to credit the attorney fees paid in the Santa Barbara settlement. As a matter of first impression, costs are more analogous to attorney fees than costs, so the question of a credit for costs is remanded to the court for further analysis.

TAG: Court award of attorney fees

Kelly v Orr

Cal Court of Appeal
Filed: 01/11/16

Rebecca was trustee of the Clark trust. Orr was the trustee’s attorney. Kelly served notice of removal on January 30, 2012, but she continued to act as trustee. Kelly filed suit. The case settled with Kelly replacing Rebecca on March 22, 2013. Kelly filed a malpractice suit against Orr on February 27, 2014 in Kelly’s capacity as successor trustee. Orr demurred that Kelly was aware of the malpractice facts prior to February 27, 2013, and thus the Statute of Limitations had expired. The court says no, the statute did not start to run until the day he became successor trustee.

Shirrod v Workers Compensation Director

Ninth Circuit
Filed:  12/31/15

Shirrod was awarded WC benefits under the Longshore Act.  His attorney Rabinowitz sought fees at $400/hr.; Rabinowitz proffered evidence to support his request. The ALJ awarded attorney fees at $340/hr.; the ALJ relied upon orders in two other cases that Rabinowitz appeared in.  Generally federal fee shifting cases use the lodestar, that is, the reasonable hourly rate times the reasonable amount of hours expended.  Using only hourly rates in other longshore cases does not produce a market rate analysis. Nor does reliance on a proxy market rate based on the annual Altman Weil survey.

TAG: Court award of attorney fees

JMR Construction v Environmental Assessment etc. Inc.

Cal Court of Appeal
Filed:  12/30/15

JMR prevailed; trial court indicated that it would award attorney fees but never made an order establishing the amount.  The trial court judgment is affirmed.  However, the attorney fee issue is still not final, so that issue is remanded for further hearing.

TAG: Court award of attorney fees

M’Guinness v Johnson

Cal Court of Appeal
Filed: 12/30/15

M’Guinness, Johnson, and Stuart each own one-third of a corporation, TLC.  M'Guinness sued Johnson & TLC, alleging mismanagement and diversion of corporate opportunities.  Johnson, represented by the Casas law firm, filed a cross complaint against M’Guinness, Stuart, and TLC.  Casas could not simultaneously represent Johnson and TLC and was thus disqualified, due to concurrent representation.  The facts showing concurrent representation include the open-ended fee agreement, holding funds in trust, ongoing billing, having control over corporate records.  One interesting fact was the failure of attorney Casas to claim that the attorney client relationship had ended when asked by M’Guinness’s attorney.

TAG: Disqualification; termination of attorney client relationship

Lanz v Goldstone

Cal Court of Appeal
Filed:  12/29/15

Lanz sued Bolio for attorney fees; Goldstone representing Bolio filed a cross complaint.  Lanz won the entire case.  Lanz sued Goldstone for malicious prosecution.  Goldstone filed an anti-SLAPP motion.  Denied.  Several of the causes of action in the cross complaint had no factual basis.  Goldstone’s arguments fail to cite clearly applicable authority. Among the useful language in this case, the accusation of violations of the Rules of Professional Conduct and State Bar Act with no factual basis.

TAG: Malicious prosecution

Kerkeles v City of San Jose

Cal Court of Appeal
Filed:  12/18/15

Plaintiff was wrongfully accused of sexual assault and held to answer based on a fabricated lab report.  After the fabrication was revealed, the criminal case was dismissed.  The civil case settled on the eve of trial.  This motion for attorney fees followed.  The trial court wrongfully reduced the lodestar with no explanation, and wrongly reduced the number of hours with no explanation.

TAG:  Court award of attorney fees

Jenks v DLA Piper

Cal Court of Appeal
Filed:  12/16/15

DLA Piper merged with another law firm.  That prior firm had an arbitration clause in the employment agreement.  That clause is enforceable in a dispute between DLA Piper and an associate who continued to work for DLA Piper after the merger.

TAG:  Law Firm disputes with employees

Crawford v JP Morgan

Cal Court of Appeal
Filed:  12/09/15

Terminating sanctions were proper when opposing counsel threatened the bank’s attorneys with a stun gun and pepper spray.  He referred to the trial judge in a variety of insulting ways.

TAG:  Imputation of attorney conduct to client

Kemper v County of San Diego

Cal Court of Appeal
Filed:  12/04/15

The County terminated Kemper’s parental rights to child NF.  On appeal, court denied reversal on several grounds, one of which was IAC.  The appellate court concluded that even if counsel’s performance was inadequate, termination of parental relations was proper due to Kemper’s own behavior.  Kemper now sues the attorneys for legal malpractice.  MSJ for attorneys granted and upheld.  Kemper lost IAC on grounds that would constitute causation.  Therefore, she is a party to the former action who is properly barred by collateral estoppel from relitigating the same issue here.

TAG:  Legal Malpractice

Catalina Island Yacht Club v Superior Court

Cal Court of Appeal
Filed:  12/04/15

The privileged log submitted in support of objections based on attorney client privilege was inadequate.  Such is not grounds for finding a waiver of the privilege; but such is proper grounds for sanctions.  The codes only specify 3 grounds for waiver, and an inadequate log is not one of them

TAG:  Attorney client privilege

IRMO Smith

Cal Court of Appeal
Filed:  11/20/15

Mark and Kiersten Smith continue to litigate child custody and support.  Kiersten brought Mark’s current wife Cindy into the protracted litigation.  Kiersten is sanctioned $150,000 for improper litigation tactics.  Kiersten’s father is funding her side of the case. The court can properly consider Daddy’s funding when assessing sanctions under Fam C 2030.  The court declines to rule, whether the award would be proper under Fam C 271.

TAG:  Court award of attorney fees

Zapien v Martel (Warden)

Ninth Circuit
Filed:  11/09/15

Prosecutor and his investigator came into custody of an audiotape in which Zapien’s attorney explained the strengths and weaknesses of Zapien’s case.  Trial court found that while the DA ordered his investigator to listen to the tape, the investigator instead destroyed it without listening to it.  It was work product, not exculpatory evidence, and thus no automatic reversal of the conviction.  As for other alleged IAC, decision not to cross-examine a 13- year old witness aggressively was tactical, as was the decision not to call a 6- year old or an 8-year old, in this murder case; same for decision not to rely on Zapien’s drug history.  Death sentence upheld.

TAG: Brady violationTAG: Ineffective assistance of counsel

USA v Kowalczyk

Ninth Circuit
Filed:  11/04/15

Kowalczyk burned through 9 court-appointed counsel, several whom were appointed for his competency proceedings.  The judge concluded that Kowalczyk was simply gaming the system and appointed an amicus attorney during the competency proceedings.  That attorney provided meaningful adversarial testing to the prosecution case, and thus met the requirement of court appointed counsel for a competency hearing.

TAG: Legal Mental CapacityTAG: Right to counsel

League of California Cities v. Superior Court

Cal Court of Appeal
Filed: 10/28/15

Goldsmith is City Attorney of San Diego. San Diego belongs to the League of California Cities, a voluntary association of 473 government entities.  Its Legal Advocacy Committee makes recommendations, inter alia, as to which cases the League should intervene in or participate as amicus.  The City Attorney of San Diego is a permanent member of that Committee.  San Diegans for Open Government sought all e-mails between Goldsmith and the League that went through Goldsmith’s private e-mail account but pertained to City business.  There were some contested e-mails that eventually were the subject of a privilege log, and the trial judge ordered production of all of them.  The League filed a writ of review.  As the alleged holder of the attorney client privilege as to the communications, the League thus had standing to file the writ.  As to communications among League members, the League failed to demonstrate who the attorney or client was, and the writ was denied as to those communications.  The court properly denied privilege status as to communications from the League’s legal assistant because there was no proof that the person was legal assistant to the League’s attorney.  However, once there was an adverse ruling, the League offered to produce the communications in camera.  Under the facts of this case, the court should have exercised discretion to review the communications with the legal assistant.  The trial court properly refused to grant work product status to e-mails that did not demonstrate the impressions, etc., of the League’s attorney.  But what the heck, as long as the case is going back for a partial review of privileged documents, the court should take a look at the purported work product e-mails too.

Tag: Attorney client privilege
Tag: Client confidentiality
Tag: attorney work product

Bocanegra v Jakubowski

Cal Court of Appeal
Filed:  10/27/15

Bocanegra was arrested due to confusion between him and another similarly named defendant.  By the time Deputy DA Jakubowski was assigned to the case, he was on notice that the wrong person was the defendant. Nevertheless, Jakubowski opposed Bocanegra’s release.  He thus committed the tort of false imprisonment.  However, he has absolute prosecutor immunity under the common law.

Tag: Prosecutor misconduct

Crittenden v Chappell (Warden)

Ninth Circuit
Filed:  10/26/15

Conviction set aside under Batson, even though the African American juror was not challenged solely due to race.  Batson, via Cook, only requires that race be a substantial part of the reason.

Tag: Prosecutor misconduct

USA v Eyraud

Ninth Circuit
Filed:  10/22/15

Eyraud plea-bargained to an embezzlement of about $114,000.  The victim’s investigation uncovered an additional $150,000.  In addition to an order of restitution for the full amount, the court ordered restitution of attorney fees of $174,00 in accord with the Mandatory Victims Restitution Act.  Attorney fees are awardable under the MVRA.  After the plea bargain, the government did not do any further investigation, so it was proper for the victim to do so and seek restitution.  Further, the victim was entitled to a recitation by the judge of the factors that went into the award, but not to the actual billing records that the judge reviewed in camera.

Tag: Court Award of Attorney fees

Dorsey v Superior Court

Cal Court of Appeal
Filed:  10/22/15

With limited exceptions, attorney fees in small claims appeals are limited to $150.  CCP 116.530, but see CCP 116.780.  This code section trumps an attorney client fee agreement that calls for more.

Tag:    Court Award of attorney fees

Sharif v Mehusa

Cal Court of Appeal
Filed:  10/14/15

Sharif won her claim against her former employer, Mehusa for violation of the Equal Pay Act.  Mehusa won the claim for unpaid wages and unpaid overtime.  There are two fee-shifting statutes in separate causes of action.  Thus, each is the prevailing party on its respective cause of action, and thus each is entitled to an award of attorney fees.

Tag: Court award of attorney fees

American Servicing Company v Tallard

Ninth Circuit
Filed:  10/14/15

ASC foreclosed on Tallard’s home in violation of the automatic stay in bankruptcy.  Under Sternberg, Tallard’s right to attorney fees ended once the home was reconveyed.  Sternberg is out of synch with all other opinions and will no longer be followed in the Ninth Circuit.  A debtor who is entitled to attorney fees after a violation of the automatic stay is entitled to all attorney fees in defending appeals too.

Tag: Court award of attorney fees
Tag: Automatic Stay

Sprengel v Zyblut

Cal Court of Appeal
Filed: 10/13/15

Sprengel and Mohr were equal owners of an LLC.  Zyblut represented Mohr and the LLC in the dissolution action, and represented Mohr when Sprengel sued Mohr for copyright infringement.  Those cases are over.  Sprengel now alleges that she had an implied attorney client relationship with Zyblut as half owner of the LLC.  Zyblut files an anti SLAPP motion. Held, previous court decisions have held that in a legal malpractice action, the anti SLAPP motion must be denied.  Dissent argues, the legislature should fix that.

Tag: SLAPP
Tag: Legal Malpractice

USA v Moser

Ninth Circuit
Filed:  10/06/15

Moser beat the government in a civil forfeiture action and was thus entitled to attorney fees.  District Judge made a low-ball award; Ninth Circuit reversed.  The government offered no evidence to contradict the hourly rate or the time spent.  Judge should not have lowered either without articulating why.  It was improper to use rates from a decade ago.  There is oblique language that it is not proper to cut down a solo attorney’s rate for routine work to that of "an associate," unless there is proof that big law firms do this sort of work.

Tag: Court award of attorney fees.

Maryland v Kulbicki

US Supreme Court
Filed: 10/05/15

During trial in 1995, an FBI agent testified as a ballistics expert, using a Comparative Bullet Lead Analysis (CBLA).  There was no IAC in defense counsel’s not challenging the testimony.  The IAC test looks at the conduct when it occurred.  The CBLA was well established at the time.  The Maryland courts first began refusing such testimony 10 years later.

Tag: Ineffective Assistance of Counsel

Conservatorship of Kevin A

Cal Court of Appeal
Filed:  10/01/15

Conservatorship was established under the LPS Act (Lanterman-Petris-Short).  He refused to waive jury trial but his attorney waived it for him.  Reversed under Blackburn and Tran.

Tag: Allocation of attorney client authorityTag: Waiver of Jury trial
Tag: Waiver of jury trial

In re Penrod

Ninth Circuit
Filed: 10/01/15

Penrod bought a new car on a secured contract that also included the unpaid balance on her trade in.  In her Chapter 13, the question was whether the debt could be bifurcated, because the property (the new car) was worth less than the total debt.  Ultimately, Penrod won under a Ninth Circuit interpretation of 11 USC 1325(a)(9).  Penrod can now seek attorney fees under Cal Civ C 1717, even though the legal issue was decided under federal bankruptcy law rather than California civil law.

Tag:  Court award of attorney fees

Conservatorship of Moore

Cal Court of Appeal
Filed: 09/30/15

Attorney William became trustee of Moore’s trust, was eventually removed, and this is a hearing on his accounting.  As attorney and trustee, he had a duty not to charge excessive fees.  The test for reasonableness is both the subjective opinion of the trustee as well as the objective reasonableness.  Here, the attorney incurred legal and expert fees with the subjective belief that he could spend all of the trust monies to seek Moore’s goals.  Wrong.  Given Moore’s lack of capacity, and William’s role as trustee, spending over one third of the estate’s assets was improper.  The court cut the fees and costs from $148,000 to approximately $50,000.

Tag: Court award of attorney fees
Tag: Legal Mental Capacity

USA v Flores

Ninth Circuit
Filed:  09/23/15

Flores was convicted of bringing marijuana from Mexico to the US.  Part of her defense was that she brought marijuana from the US to Mexico. During oral argument, the prosecutor made references to her admittedly being a drug smuggler.  Well, that was not true, but neither was it plain error.  Conviction upheld.

Tag: Prosecutor misconduct

Magnetar Technologies v Intamin

Ninth Circuit
Filed:  09/14/15

Magnetar and Intamin make magnetic roller coaster brakes.  Intamin obtained a patent, sued Magnetar for infringement, but lost.  Magnetar then sued Intamin for filing a fraudulent application and sued Intamin’s attorney for malicious prosecution.  Under the facts of this case, a reasonable attorney could argue that the patent was valid, thus the district court properly granted summary judgment on malicious prosecution (and fraudulent patent application).

Tag: Malicious prosecution

Bobbitt v Milberg LLP

Ninth Circuit
Filed:  09/10/15

Milberg is a class action law firm.  Due to missed deadlines, the class action in the "VALIC" class was decertified and the case eventually dismissed.  This is a class action malpractice case filed in Arizona, where the VALIC case was filed.  However, there are several defendant law firms from across the country, as well as plaintiffs from across the country.  Choice of law looks at place where the injury occurred (Arizona as the forum state for the VALIC case).  Conduct was in several states, but the critical conduct was the failure to meet deadlines in Arizona.  There was some relationship with absent class members in their home states, but they would have been bound by an Arizona ruling.  Class members reside in all 50 states, while defendant resides in six different states.  No one state has a predominate interest on that criteria.  Thus, case belongs in Arizona.

Tag: Legal Malpractice.

People v Lewis

Cal Court of Appeal
Filed: 09/09/15

Arresting officer did not testify at trial.  Turned out he was on administrative leave and later prosecuted for several felonies.  There was no disclosure to the defense until the morning of trial.  Evidence was withheld (Brady #1), and it would have been impeaching (Brady #2).  It was not material (Brady #3) because officer did not testify at trial, and because there is no probability it would have altered the result.  Court chastises prosecution, reminding them that their discovery obligations are broader than Brady.

Tag: Prosecutor misconduct

Elmore v Sinclair

Ninth Circuit
Amended Opinion Filed: 09/03/15

After consultation with various experts and running two mock trials, attorney decided to present a mitigation case based on acceptance of responsibility, rather than mental disorder mitigation.  Jury still voted for the death penalty.  No IAC.  Reasonable strategy, given facts of the case

Tag: Ineffective assistance of counsel

Kaass Law v Wells Fargo Bank

Ninth Circuit
Filed:  08/27/15

Under 28 USC1927, sanctions can be awarded against an individual attorney but not against his law firm.

TAG: Sanctions

James Harris etc. Inc. v West Bay Builders

Cal Court of Appeal
Filed:  08/27/15

Harris sued West Bay for violating the prompt payment statutes governing contractors.  West Bay cross-complained for damages due to deficient performance by Harris.  Both sides lost.  Held, there was no prevailing party and thus trial court properly denied West Bay’s petition for attorney fees.
TAG: Court award of attorney fees

Carrillo v County of L.A.

Ninth Circuit
Filed:  08/26/15

Since 1984, prosecutors have been aware of their duties under Brady.  A police officer therefore can be civilly liable for suppression of evidence that leads to a wrongful conviction.

TAG: Prosecutor misconduct

USA v Turner

Ninth Circuit
Filed:  08/25/15

The FBI had a legal wiretap on the phone of Pellicano, the Investigator.  Some of the calls were with Attorney Christensen, and demonstrated that Pellicano was illegally obtaining information about Christensen’s opposing party and relaying it to Christensen. The government properly handled these calls in accord the Zolin case, by having a separate "filter" team of attorneys and investigators screen the material; make a showing to the court as to which items were privileged; and then making the showing of the crime fraud exception before turning over the investigative team.  Christensen’s sentence had an upward adjustment due to his supervisory role; due to the economic benefit he derived (fees) for engaging in illegal behavior.  There was another upward adjustment for using his skills as an attorney to break the law, even though the victim was not his client.

TAG: Attorney civil liability for unethical conduct

Royal Pacific v Arneson

Cal Court of Appeal
Filed: 08/24/15

Employer appealed Labor Commissioner award, then paid up when employee identified new claims that could be raised in Superior Court.  Trial Court should have awarded attorney fees to employee because the award was more than zero, Lab C 98.2.

TAG: Court award of attorney fees

Lee v Hanley

Cal Supreme Court
Filed:  08/20/15

Lee demanded a fee refund from attorney Hanley, who refused to make a refund.  She sued him more than one year later.  If this case is based solely on wrongful conduct in the performance of professional duties, it is barred by the S/L in CCP 340.6.  If the complaint is based on generally applicable obligations, it is not barred by CCP 340.6; back to trial court for an amended complaint.

Tag:  Legal Malpractice

Salazar-Gonzalez v Lynch

Ninth Circuit
Filed:  08/20/15

Salazar was denied cancellation of removal.  His attorney recommended against appeal and in favor of returning to Mexico to apply for the I-130.  Bad advice.  Because he was removed, he could not apply for 10 years.  Such is IAC.

TAG: Ineffective Assistance of Counsel.

First Intercontinental Bank v Ahn

Ninth Circuit
Filed:  08/18/15

Georgia bank loans money to California residents to buy a Colorado hotel.  Choice of law clause was Georgia. After default, bank sued hotel, borrowers, and guarantors in federal court in California. One defendant won and sought attorney fees, which would be recoverable in California under Civ C 1717 but not in Georgia.  The California factors outweigh the Georgia factors in this particular case.

TAG: Court award of attorney fees

People v Tran

Cal Supreme Court
Filed:   08/17/15

In a hearing to extend the involuntary commitment of a defendant who pled NGI, the Judge must personally inform the defendant of his right to a jury trial.  A waiver must be personally made by the defendant, not his attorney.

TAG: Jury Trial; waiver

People v Blackburn

Cal Supreme Court
Filed:  08/17/15

In an MDO hearing, the Judge must personally inform the defendant of his right to a jury trial.  A waiver must be personally made by the defendant, not his attorney.

TAG: Jury Trial; waiver

Shelton v Marshall

Ninth Circuit
Filed:  08/07/15

Shelton, Thomas, and Silva abducted and killed Thorpe.  Silva was the shooter.  Shelton said that he was passive while Thomas gave him a more central role.  Under a secret plea bargain, the prosecutor waited until Thomas’s testimony was over before having him examined by a psychiatrist for mental competency.  The withheld information was favorable, the first prong of Brady.  It was withheld, the second prong of Brady.  In this case, the testimony would have been material to the murder verdict, meeting the third prong of Brady.  Habeas Corpus granted.

TAG: Brady

Andrews v Davis (Warden)

Ninth Circuit
Filed:  08/05/15

Andrews was convicted of murder and sentenced to death.  The evidence was that he and his partners in crime had executed 3 robbery victims.  Besides a prior conviction for murder, he had other robberies and crimes of violence.  Held, it was not IAC to present a mitigation case without employing a mental health professional.

TAG: Ineffective Assistance of Counsel

T. B. v San Diego USD

Ninth Circuit
Filed:  07/31/15

T.B. must be fed with a Gastrostomy Tube, and thus qualifies for an Individualized Education Plan under the Individuals with Disabilities in Education Act.  The trial court found that the various settlement offers from the school did not allow for a properly qualified person to administer the tube feedings; and further found that this was an important issue; and thus impliedly found that the settlement offer was inadequate.  Thus, the parents qualified for an award of attorney fees.  The amount ordered by the court was inadequate.

TAG: Court award of attorney fees

Newark USD v Superior Court

Cal Court of Appeal
Filed:  07/31/15

The District released papers under the Public Records Act, and then sought return of over 10 documents alleged to be privileged.  Section 6254.5 of the Act states that release of documents waives the privilege.  The purpose of that section is to prevent a government entity from releasing documents to some members of the public, yet assert privilege as to others.  Thus, it is not intended to apply to inadvertent release of privileged documents.  Thus the court can order the return or destruction if otherwise warranted by the facts.

TAG: Attorney client privilege

Klotz v Milbank Tweed

Cal Court of Appeal
Published:  07/28/15 (Filed 06/30/15)

Two partners sue the third partner and his attorney, alleging civil conspiracy.  The order striking that cause of action should have been upheld, as the alleged facts do not show any exception to Civ C1714.10, which requires a court order to file such a civil conspiracy complaint.  The rest of the complaint is still subject to possible demurrer, but in the trial court, not here.

Golba v Dick’s

Cal Court of Appeal
Filed:  07/24/15

Attorney Reis filed a pro hac vice application for attorney Spirut, which was not granted because Spirut did not complete his registration with the State Bar.  Spirut did not realize this until he was filing for an attorney fee award, and then re-filed.  Court denied the second application because Spirut had filed 12 PHV applications in the meantime.  No PHV status means, no attorney fees.  Reis is entitled to fees for work he did, but not for time communicating with Spirut.

Willard v Kelley (Registrar)

Cal Court of Appeal
Published:  07/21/15  (Filed 06/29/15)

Willard ran against Woolery for public office.  Woolery challenged Willard’s ballot designation and lost. Willard seeks attorney fees under CCP 1021.5.  Nope, the ruling did not enforce an important public right or benefit a large class of people – only Willard
.

Law Offices of Mark Grossman v Victor Elementary School District

Cal Court of Appeal
Published:  07/21/15 (Filed 6/26/15)

Grossman filed a request under the CPRA seeking information about the fees charged by defendant in an action Grossman brought on behalf of a minor.  Defendant refused, trial court upheld defendant, Court of Appeal reversed.  Grossman then sought attorney fees under CPRA.  Court denied, citing Trope.  Wrong.  This is a CPRA case, not a breach of contract case.  Back to trial court for an attorney fee award.

Moncrief v Clark

Cal Court of Appeal
Filed:  07/21/15

Smith sued Moncrief for legal malpractice.  Moncrief cross-complained against the opposing counsel Clark, alleging that Moncrief relied on Clark’s false representations in advising Smith.  Clark is an Arizona attorney.  The alleged misrepresentations occurred by phone.  Held, enough contacts for jurisdiction over Clark.

Even Zohar Construction v Bellaire Townhouses

California Supreme Court
Filed:  07/20/15

CCP 1008 applies to a renewed motion.  The moving party must show new or different facts, circumstances, or law.  That section applies to a renewed motion to set aside defaults based on attorney fault under CCP 473(b).

Haeger v Goodyear

Ninth Circuit
Filed:  07/20/15

After the civil case settled, it came to light that defense attorneys had concealed evidence, made misleading statements to the court, and deliberately delayed production of required information.  Held, the court still had the inherent power to sanction the attorneys and the defendants. The damages here were compensatory, not punitive, based on the additional attorney fees that the plaintiffs had to incur due to defense misconduct.  The misconduct permeated the whole case, so it is not necessary to link each act of misconduct to specific attorney services rendered by the plaintiffs’ attorneys.  The dissent agreed on inherent powers, disagreed on linkage, and would have held the amount to be punitive.

Torres v Goddard

Ninth Circuit
Filed:  07/16/15

In accord with Arizona’s civil forfeiture law, Deputy AG prepared warrants, obtained approval of the AG, then obtained a court order.  As a matter of first impression, prosecutors can assert immunity in civil as well as criminal cases.  AG as supervisor has absolute immunity under Imbler, since a court order was obtained.  Deputy AG acted as a peace officer in executing the warrant, so he doesn’t have absolute immunity, per Van de Kamp.  He might have conditional immunity, but such requires a court hearing.

Foley v Biter (Warden)

Ninth Circuit
Filed:  07/14/15

Defense counsel filed a habeas corpus petition in April 2001, and wrote Foley in December 2002 that these things take a long time.  Court denied habeas in August 2004. Counsel never informed Foley. Foley made inquiry in February 2010 and Foley ignored him.  Eventually, in February 2011, counsel filed a declaration that he had forgotten that Foley was a client with an ongoing matter, rather than a former client.  Counsel’s failure to notify Foley, and ignoring subsequent correspondence, constituted client abandonment, which is grounds for permitting Foley to file a late appeal now.

Coldren v Hart/King

Cal Court of Appeal
Filed:  07/13/15

Retiring partner Coldren brought action against his law firm and the continuing partner for an accounting.  Since the lawsuit is direct and not a derivative action, there is no conflict of interest for the same attorney to represent Hart and the law firm.

TAGS: Disqualification, Conflict of interest

USA v Chan

Ninth Circuit
Filed:  07/09/15

Chan is a Permanent Resident.  She plea-bargained to several counts of perjury in 2000, after obtaining advice of counsel that the conviction would not affect her immigration status. This case is not directly controlled by Padilla, which refers generally to counsel’s duty to advise, and is closer to Kwan, which refers to the test after getting bad advice.  Thus, the writ of coram nobis should be granted, setting aside the conviction.

Martinez v California Dept. of Transportation

Cal Court of Appeal
Published:  07/07/15 (Filed 06/12/15)

Cal Trans’s attorney repeatedly asked questions that were prohibited by in limine orders.  Objection would be upheld, and the attorney would ask the question again, and again, and again.  The questions generally imputed bad behavior to Martinez.  The trial judge failed to declare mistrial or restrain the egregious misconduct of the attorney.  Defense verdict reversed.

Coalition (etc.) v City of Yucaipa

Cal Court of Appeal
Published:  07/06/15 (Filed 06/08/15)

Target agreed with Palmer to develop the Oak Hills Marketplace.  After an EIR, the City approved the project.  Coalition filed a writ of mandate to overturn the approval.  Meanwhile, Palmer missed some deadlines and Target abandoned the project.  The City then revoked the land use permits.  The end of the project was not due to any actions of Coalition, which thus is not entitled to attorney fees under CCP1021.5.

People v Johnson

Cal Supreme Court
Filed:  07/06/15

This case discusses the interplay between Brady and Pitchess.  District Attorneys do not have automatic access to police personnel records.  Thus, the police have to inform the DA that there is Pitchess-type information and explain how it might affect the officer’s credibility.  The DA must inform the defense, who can decide whether to file the Pitchess motion.  If the DA wants the information, it can file its own Pitchess motion.

Finton v Bidna

Cal Court of Appeal
Filed: 06/29/15

Bidna represented Reeves in a lawsuit against Finton.  Finton filed this separate lawsuit against Bidna for actions in the still pending lawsuit.  Bidna replied with an anti-SLAPP motion in this suit.  On the eve of oral argument on the appeal, the parties settled this suit.  The Court of Appeal castigated Finton’s attorneys for scorched earth tactics and published this opinion as an object lesson.  All acts by Bidna occurred while representing Reeves. This separate suit, along with a police complaint, State Bar complaint, and two efforts to depose Bidna, are all improper and exceed
the boundary line of proper advocacy.

USA v US District Court of Nevada

Ninth Circuit
Filed: 06/29/15

Judge Robert Jones routinely denies PHV status to Department of Justice attorneys who are not admitted in Nevada.  When this writ was filed, he reversed his order as to this attorney in this case.  Since he has made other denials both before and after this one, the issue is not moot.  Generalized refusal to grant PHV status to all attorneys not admitted in the forum state is an abuse of discretion.  Denial of PHV status must be supported by an articulated, reasonable basis.  General doubts about "government attorneys" is insufficient.

Shaoxing v Keehn

Cal Court of Appeal
Filed:  06/25/15

Shaoxing employed attorney Keehn to seek redress in a bankruptcy proceeding filed by one of its debtors.  Keehn missed a 10/07/09 deadline, and the court refused to reopen in an order made 11/10/09.  New counsel entered into a settlement on 2/22/10.  Shaoxing sued Keehn for malpractice on 2/18/10.  Too late; statute of limitations expired no later than 11/10/10, one year after there was clearly damage, and more than one year after the negligence.  Assisting the transition to new counsel is not part of continuing representation.

Castaneda v Superior Court

Cal Court of Appeal
Filed:  06/24/15

Attorney Banuelos was part of a court appointed settlement team that tried to settle the Castaneda case.  Several months later, her law firm became attorneys for the defendant.  She was screened off.  The Court of Appeal ruled that screening would not be permitted here.  If she received any confidential information, her whole firm is disqualified on the appearance of injustice standard.  A screen would work if she did not receive confidential information.

Amin v Superior Court

Cal Court of Appeal
Filed:  06/23/15

DA and defense agreed to a plea bargain that covered all crimes mentioned in the police report.  After sentencing, DA filed charges on an unrelated crime that was mentioned in the police report.  Improper.  The fact that she did not read the full police report is irrelevant. It isn’t defense attorney’s job to inform the prosecutor of possible missteps.

Mitchell v USA

U.S. Supreme Court
Ninth Circuit
Filed: 06/19/15

No IAC.  Defense counsel employed a psychiatrist and a psychologist prior to trial, and used their input in deciding trial tactics and the approach to sentencing.  Ditto for a mitigation specialist.

Davis (Warden) v Ayala

U.S. Supreme Court
Filed:  06/18/15

The DA excused 3 Black and 3 Hispanic prospective thus triggering the Batson / Wheeler principles.  The judge held an ex parte hearing, with only the DA present; that hearing violated Ayala’s constitutional right to be present at important hearings.  The US Supreme Court upheld the California Supreme Court’s ruling that the error was harmless under the Chapman principles, so Ayala can now be executed.

People v Allen

Cal Court of Appeal
Filed: 06/17/15

Batson/Wheeler issues over peremptory challenge to 3 female, Black jurors in a case where the defendant is female and Black.  No prima facie case shown.  Prosecutor excused any juror with a family history of mental problems, so as to eliminate jurors who might be sympathetic to a defendant whose criminal behavior was bizarre to the max.

Naffe v Frey

Ninth Circuit
Filed: 06/15/15

Frey is a blogger who published several unfavorable articles about Naffe on his personal website.  Frey is also a Deputy DA, so Naffe sued under 18 USC 1983, alleging that Frey acted under color of law.  District Court dismissed that claim.  Affirmed.  It was on his personal website that in turn had a disclaimer that he was only speaking for himself.  The Court also held that Naffe failed to prove that her damages exceeded the federal threshold of $75,000 for the remaining diversity claims.  Reversed.  Her allegation of damages in excess of $75,000 appear to be in good faith.  Dismissal would be valid only if evidence showed lower damages to a "legal certainty."

Baker Botts v Asarco LLC

U.S. Supreme Court
Filed:  06/15/15

The law firm of Baker Botts represented Asarco LLC in a Chapter 11 bankruptcy.  BB filed a petition for attorney fees, which Asarco opposed.  The court awarded BB $124,100,000 in fees; and also awarded BB an additional $5,000,000 for time spent litigating the fee application.  The statute does not permit the additional $5,000,000 award.

USA v Yamashiro

Ninth Circuit
Filed: 06/12/15

Defendant pled guilty.  On the day for sentencing, he asked to substitute counsel.  Judge granted the request and reset a new sentencing date.  However, judge then heard victim allocutions (witness impact statements), and later relied heavily on one of them for sentencing purposes.  Motion to set aside plea was properly denied.  Case is remanded to a different judge for sentencing.

Turner v City & County of San Francisco

Ninth Circuit
Filed:  06/11/15

Turner interviewed for a permanent position with CCSF and was offered a job.  When he showed up, he was hired as a temp.  He complained to his supervisor and to various county officials and union officials.  He was fired.  Held, this was a private grievance, not an issue of public concern.  Thus CCSF did not violate his First Amendment rights.

USA v Alcantara-Castillo

Ninth Circuit
Filed:  06/11/15

Prosecutor improperly asked defendant to comment on a peace officer’s testimony, then argued that the peace officer was sworn to uphold the law and thus was more credible than the defendant.  Thus, there was improper commentary on another witness’s testimony and improper prosecutorial vouching.  Reversed as plain error.

Monterossa v Superior Court

Cal Court of Appeal
Filed:  06/12/15

When a homeowner seeks a loan modification, banks often engage in dual tracking, which is, working with the homeowner on the loan while pursuing a foreclosure.  The legislature outlawed the practice in Civ C 2924.12.  Here, the homeowner secured a preliminary injunction against the foreclosure while the loan modification process was ongoing.  Held, homeowner is entitled to attorney fees, since the relief would be moot by the time a permanent injunction could be obtained.  (The court said, the lenders call it double tracking; borrowers would call it a double cross.)

Bemore v Chappell (Warden)

Ninth Circuit
Filed:  06/09/15

The District Court should have granted a writ of habeas corpus to Bemore.  His trial attorney put on a good guy mitigation case at the sentencing phase, without doing an adequate investigation of the mental health mitigation case.  Death Penalty remanded for new hearing.

Zapata v Vasquez (Warden)

Ninth Circuit
Filed:  06/09/15

The District Court should have granted habeas corpus to Zapata.  The prosecution’s rebuttal argument made up a fictional conversation between defendant and victim, and laced it with supposed ethnic slurs.  Thus, the failure of the defense attorney to object was IAC.

People v Scott

Cal Supreme Court
Filed:  06/08/15

The DA excused two prospective jurors who are Black, thus triggering the Batson / Wheeler principles.  The objection must be made before the jury is impaneled, but not necessarily when an individual juror is excused.  When the defendant has made out a prima facie case, the burden shifts to the prosecutor to explain.  In some cases, courts have ruled there was no prima facie case, but invited the prosecutor to explain anyhow.  In such a case, appellate review should begin with the first ruling.  If upheld, there is no review of the prosecutor’s explanation.

Northbay Wellness v Beyries

Ninth Circuit
Filed:  06/05/15

Attorney Beyries filed bankruptcy.  Northbay objected to discharge of his $25,000 debt, since he had stolen the money.  BK judge upheld the discharge, on the basis that Northbay came with unclean hands, since it was an illegal marijuana dispensary.  Reversed.  Courts are required to look at the behavior of both parties, not just one.  Beyries was a director and owner of Northbay, so the illegality was equal.  It is against public policy to permit attorneys to get away with theft of client funds.  Debt was thus not dischargeable.

Parrish v Latham & Watkins

Cal Court of Appeal
Filed: 06/26/15

In this malicious prosecution case against the law firm that brought the original litigation, the court granted an anti-SLAPP motion. In the underlying case, the trial court denied defendants' MSJ, but later ruled for the defendants. The denial of MSJ invokes the "interim adverse judgment" principle and conclusively establishes probable cause. The finding after trial, that the original case was filed in bad faith, does not supersede the principle.Castaneda v Superior Court

Animal Protection & Rescue v City of San Diego

Cal Court of Appeal
Filed: 05/27/15

APR filed a writ of mandate to require City to approve APR's installation of a guideline rope in a swim pool to protect seals. City confessed error after suit was filed. Held, City was an "opposing party" for an award of private attorney general fees under CCP 1021.5.

Kumaraperu v. Feldsted

Cal Court of Appeal
Filed: 05/26/15

When husband died, wife became sole owner of a bank account. However, he was the only authorized signatory. Attorney advised her to sign his name to the check and move money to another account. DA filed forgery charges against her, later dropped. It could not be forgery because she owned the funds. Therefore, negligent advice did not cause DA to file charges. It was not foreseeable that DA would bring unfounded charges. Demurrer to legal malpractice complaint upheld.

Leeman v Adams Extract

Cal Court of Appeal
Filed: 05/21/15

The court approved a Prop 65 settlement but reduced the agreed upon attorney fees by about 50%. It cannot do so. Either the settlement is approved or rejected. If the Court rejects the settlement due to the attorney fees, the trial court is "strongly encouraged" to explain its rationale.

Ryan v Editions Limited West

Ninth Circuit
Filed: 05/19/15

Plaintiff won a copyright infringement case. Plaintiff sought attorney fees under the contract. Granted; the statutory fees do not preempt state law permitting contract attorney fees. The court reduced the request without explanation. That included the reduction for "block billing." Because the court did not explain how it came to select a 20% reduction, remanded for a new hearing on attorney fee

Faton v Ahmedo

Cal Court of Appeal
Published: 05/15/15 (Filed 4/22/15)

Faton obtained a DVRO (Domestic Violence Restraining Order) against Ahmedo. Both were pro per and neither had checked the box asking for attorney fees. Ahmedo employed counsel and filed for reconsideration. Faton employed counsel and opposed the motion. Reconsideration was granted. There was a second hearing with counsel for each side. Faton won and asked for attorney fees. Granted. The attorney fees were incidental to the main relief, rather than an item of special damages.

In Re Butler

Cal Court of Appeal
Filed: 05/15/15

Butler is a parole eligible lifer. He has been denied parole 5 times over 26 years. He filed a class action asking that the Board of Prison Terms be required to set the base term during the first parole hearing. Otherwise, a prisoner would never know what the base term was when seeking 2nd and subsequent paroles. The case settled with a stipulation to the relief requested, except if the first parole hearing is over, then the base term will be set at the next hearing. Held, his court appointed attorneys are entitled to attorney fees, as this was a vindication of an important public policy. His attorneys asked for $439,000, which is way too high; the parties are invited to stipulate to a figure under half that amount, or submit further materials on the reasonable fee.

County of Nevada v Superior Court

Cal Court of Appeal
Filed: 05/14/15

County cannot enforce a routine policy that attorneys and clients cannot meet face to face, without a physical barrier. County remains able to enforce such a rule on a case specific basis.

USA v Brown

Ninth Circuit
Filed: 05/13/15

Criminal defendant has right to fire retained counsel. If he cannot afford new retained counsel, he has a right to court appointed counsel.

People v Miranda

Cal Court of Appeal
Filed: 05/13/15

Court properly permitted defendant to represent himself. During trial, there was evidence that he suffered from mental illness. However, there is no indication that his mental illness made him incapable of representing himself.
Thus, judge had no duty to make independent inquiry into the issue.

Bergstein v Stroock

Cal Court of Appeal
Published: 05/08/15 (Filed 05/01/15)

Suit by a former litigant against opposing counsel, met with an anti-SLAPP motion. An anti-SLAPP motion cannot be granted if the underlying conduct is illegal. "Illegal" for purposes of an anti-SLAPP motion means criminal conduct. By way of contrast, in a SLAPPback motion, illegal can be based on violation of a civil statute. In either type of case, the exact statute must be identified and alleged conduct must be described with particularity. Bergstein failed that test. Bergstein also failed the likelihood of success test.