RECENT APPELLATE CASES

People v Voit

Cal Court of Appeal
Filed 11/18/11

As part of the plea bargain, Voit's counsel stipulated that there was a factual basis for the plea.  Voit now seeks to set aside the plea bargain on the basis that there was no factual basis.  The motion is denied.  He is estopped from denying that which he acknowledge in the plea bargain, that is, that there was a factual basis for the plea. 

Vargas v City of Salinas

Cal Court of Appeal
Filed 11/18/11

Vargas supported a ballot measure to repeal the Salinas City utility tax. The city issued a report describing the impact on municipal services if the measure was enacted. The court held that this was not improper campaign material, since it did not advocate a yes or no vote. The Supreme Court upheld the result, though it established a new, more liberal, test for cases of this sort. Both sides petitioned for attorney fees. Plaintiffs are not entitled to attorney fees because they lost the lawsuit. The city of Salinas is entitled to attorney fees. While there are free speech and therefore First Amendment implications in such an award, the government does have an interest in not having to defend meritless lawsuits. This one had no merit under the old test and the new test.

Janopaul Block v Superior Court

Cal Court of Appeal
Filed 11/17/11

Janopaul was sued for construction defects at the El Cortez project. He tendered his defense to St. Paul Insurance. St. Paul delayed two years before agreeing to defend. St. Paul agreed to defend under a reservation of rights, and recognition of Janopaul's then-existing attorney, as independent counsel. St. Paul now seeks to have the issue of that attorney's attorney fees arbitrated in accord with the Civil Code. Before that motion can be heard, the trial court itself must first determine if there was a duty to defend in the first place. If so, St. Paul can make the motion, subject to whatever defenses Janopaul might have.

Khodayari v Mashburn

Cal Court of Appeal
Filed 11/15/11

Khodayari employed attorney Mashburn to represent him in a probation violation case. He was found to have violated probation. He claims that Mashburn committed malpractice. The probation violation should be treated like other malpractice cases arising out of criminal prosecutions. That is, the defendant must show actual innocence, and must also obtain post-violation exoneration. Khodayari did neither. Therefore, the court properly upheld summary judgment on behalf of Mashburn.

Salehi v Surfside Condo Association

Cal Court of Appeal
Filed 11/14/11

Salehi, an attorney proceeding in pro per, sued her condominium association in ten different causes of action. She represented another condo owner in a similar lawsuit. After that other lawsuit was decided adversely to her neighbor, and after her expert told her he had had a recent heart attack and was unavailable, Salehi dismissed eight of the ten causes of action against the condominium association. Three days later, she obtained a continuance of the trial on the remaining causes of action, based on the illness of the expert. As a result of those actions, the condo association was the practical winner in the lawsuit, having achieved most of its litigation objectives by means of the dismissal. Therefore, it is entitled to reasonable attorney fees, even though Salehi's reasoning was faulty in assuming she could not get a continuance on all causes of action.

In re the Marriage of Guilardi

Cal Court of Appeal
Filed 11/7/11

The Guilardi marriage ended in a settlement and a marital settlement agreement. Wife engaged in protracted litigation to set aside the MSA and lost. The court denies her attorney fees, because she knowingly consented to the MSA, which reasonably interpreted, only permitted a prevailing party to obtain attorney fees.

Roberts v McAfee Inc.

Ninth Circuit
Filed 11/7/11

Roberts is the former general counsel of McAfee. He alleges they maliciously prosecuted and defamed him to deflect attention from company-wide backdating of stock options. McAfee filed the SLAPP motion. The court should have granted the SLAPP motion. The evidence indicates that McAfee had probable cause to believe Roberts was guilty of a crime. The defamation claims are time barred.

U.S.A. v Sanchez

Ninth Circuit
Filed 11/1/11

Sanchez was convicted of importing cocaine with intent to distribute.  His defense was that he imported it under duress and threats by drug traffickers to harm his family.  In the rebuttal closing argument, the prosecutor said that the defense of duress should be rejected, that accepting this defense would be essentially sending a memo to all drug traffickers that they can get out of crimes by claiming duress.  This was an improper argument, because it asks the jury to makes it decision on something other than the evidence in this specific case.  It is plain error, and the case is reversed for a new trial. 

Serrano v Stefan-Merli

California Supreme Court
Filed 10/31/11

Stefan-Merli took the deposition of a witness and employed Coast Reporters.  Plaintiff requited an expedited transcript.  Plaintiff objected to the fee charged and ultimately won a ruling from the Court of Appeal, that the court had authority to limit deposition charges to that which was reasonable.  Serrano then sought attorney fees, which the court denied, holding that the plaintiff had a personal interest but that there was no public interest.  That holding is now reversed.  Court reporters at depositions act as ministers of the court, and there is an important public interest in what they do and what they charge.  The ruling obtained by plaintiff was therefore in the public interest.  This case is now remanded to the trial court for determination of the reasonableness of the attorney fees. 

Dzwonkowski v Spinella

Cal Court of Appeal
Filed 10/27/11

Spinella employed attorney Dzwonkowski to represent him in a probate matter. Dzwonkowski and Spinella had a fee dispute. Attorney Boltz, who is "of counsel" to the Dzwonkowski firm, represented the law firm. The arbitration panel found that Spinella owed Dzwonkowski $33,000. Dzwonkowski successfully petitioned to confirm the award. Dzwonkowski then filed a motion for attorney fees. The court awarded $16,000 in attorney fees under Civil Code 1717. This is not like Trope, an attorney representing himself. There is no evidence that Boltz was a straw man for Dzwonkowski.

In Re Douglas

Cal Court of Appeal
Filed 10/27/11

Douglas filed a petition for habeas corpus in 2010, seeking to set aside a 1997 conviction for sexual battery.  His grounds were that when he pled guilty in 1997, he was not informed that he had to register as a sex offender.  However, he was made aware of the requirement the day after he pled.  Furthermore, he consulted with counsel in 2008.  Therefore the statute of limitations began running on the day of awareness.  The trial court should not have granted habeas corpus. 

Miller v Bailey

Ninth Circuit
Filed 10/27/11

Sgt. Mata shot and killed Phillip Miller.  Miller’s family sues Mata and the City of Los Angeles.  The court issued an in limine order, that prohibited the defendants from arguing that Phillip was armed.  In the closing argument in the case, attorney Arias argued for Mata why Mata could reasonably believe that Phillip had a gun.  Plaintiff’s attorney moved to strike the last sentence of the argument.  The judge did so. Arias then said that he stands corrected, that there is no evidence that Phillip had a gun in his hand.  The issue here is whether the order was violated in bad faith. The problem is, the judge’s order did not clearly prohibit this sort of argument, but that Arias conceded at the trial level that it did.  This court holds that there can be no bad faith violation of an order, if the order was not violated in the first place, regardless of the attorney’s concession.  

CDF Firefighters v Maldonado

Cal Court of Appeal
Filed 10/26/11

CDF Firefighters (CDFF) is a labor union of firefighters employed by the state of California.  It fined member Maldonado $22,000 and member Pittman $743.  CDFF sued both of them in a one-count complaint.  After much litigation, Maldonado won his claim.  CDFF then dismissed the case.  When Maldonado sought attorney fees CDFF argued that the dismissal of the entire case meant that Maldonado could not be a prevailing party.  Wrong.  Although there was a one-count complaint, it was really comprised of two separate causes of action.  Pittman’s was dismissed, and therefore he cannot seek attorney fees.  Maldonado won his, and therefore he can. 

John Doe v Busby

Ninth Circuit
Filed 10/24/11

Doe filed his habeas corpus petition several years late.  Under the facts of this case he has shown grounds for equitable tolling.  He hired private counsel and paid him $20,000, well within the one year statutory period.   Doe began writing his attorney within the one year to encourage him to file on time.  When he learned his attorney had not done so, he filed a complaint with the State Bar.  The lawyer persuaded Doe to drop the State Bar complaint so the lawyer could find a way around the statute of limitations.  Doe periodically communicated with the lawyer for the next several years, and in October of 2003 counsel withdrew from the representation. Mere lawyer negligence is inadequate grounds for equitable tolling.  Unprofessional behavior can be, and is under these circumstances.  Doe has shown reasonable diligence.  He is not required to show extraordinary diligence.

Gananian v Wagstaffe

Cal Court of Appeal
Filed 10/21/11

Gananian complained to the DA that a local school district violates the PRA (Political Reform Act). In this case, he alleges that the DA refuses to investigate and prosecute.  A district attorney has discretion whether or not to prosecute, a principal based in the separation of powers and the due process clause of the state constitution. 

U.S.A. v Wilkes

Ninth Circuit
Filed 10/19/11

Wilkes was convicted of a variety of crimes pertaining to bribery and influence peddling of congressmen.  Among other issues on appeal, he argues that the prosecution should have granted immunity to one of his witnesses, Williams.  The case is remanded to the district court for a hearing on whether the failure of the prosecutor to grant immunity to witness Williams distorted the fact finding process, due to the decision of the prosecutor to give immunity to its own witnesses while simultaneously denying any immunity to defense witnesses. 

Smith v Cimmet

Cal Court of Appeal
Filed 10/18/01

William Smith and his wife Genevieve resided in Oregon.  They employed California attorney Cimmet with respect to claims against William’s former partner McPherson.  William died and Genevieve became Personal Representative of the estate.  As such, she then employed Cimmet and attorney Pavone, who sued McPherson in Marin County Superior Court.  In the meantime, William’s two children from a previous marriage contested the will leaving everything to Genevieve.  They prevailed, removed her as executor, and replaced her with one of the children, Daniel Smith.  By that time McPherson had won the underlying lawsuit and it was pending on appeal.  Daniel abandoned the suit, and the estate now owes McPherson approximately $600,000 in attorney fees.  The estate also paid Cimmet and Pavone about $1,500,000.  Daniel has now sued Cimmet and Pavone for malpractice.  He lacks standing to do so, because California does not permit the executor of an estate outside of California to sue in his representative capacity.  However, the trial court should give him an opportunity to seek an ancillary administration, and either he or the ancillary executor can resume the lawsuit against the two attorneys.  This court also reaffirms the rule that a subsequent executor has a cause of action in legal malpractice against attorneys for the former executor. 

U.S.A. v Reyes

Ninth Circuit
Filed 10/13/11

Reyes was convicted of federal crimes involving the backdating of stock options.  He alleges prosecutor misconduct.  There was none, because the evidence the prosecutor offered was actually truthful.  In dicta, the opinion says that prosecutor misconduct would include any argument by the government of inferences known to be false; or which the prosecutor has a strong reason to doubt; or which the prosecutor refuses to acknowledge error after the error is brought to his attention.

James v Schriro

Ninth Circuit
Filed 10/12/11

This is a habeas corpus petition.  There was ineffective assistance of counsel, because the trial attorney failed to investigate and present mitigating evidence of defendant’s troubled childhood, mental illness, drug abuse -- all of which are the kinds of factors a judge considers when determining whether or not to impose the death penalty. 

Nicholas Laboratories v Chen

Cal Court of Appeal
Filed 10/12/11

Nicholas Labs sued Chen, an independent contractor but not an employee of Nicholas Labs, alleging that while working for Nicholas Labs he set up a competing company and stole certain proprietary information.  The case was dismissed prior to trial.  Chen sought attorney fees under Labor Code 2802 and Corporations Code 317.  He is not entitled to attorney fees under Labor Code 2802, because that pertains to indemnity for damages and attorney fees in third party litigation.  He is not entitled to indemnity under Corporations Code 317, because Nicholas Labs is an LLC and not a corporation. 

In Re Placide

Ninth Circuit BAP
Filed 10/5/11

Attorney Marguiles represented Placide in a claim against Edison.  After obtaining an $82,000 judgment against Edison, Edison filed bankruptcy.  Placide and the trustee teamed up in an adversary proceeding, in which they pursued Edison and his wife for the $82,000.  The only possible source of recovery was from the wife.  Ultimately, they won the lawsuit against Edison, but not against the wife, so they collected no money.  Attorney Marguiles now seeks $125,000 in attorney fees.  Denied.  In bankruptcy court, attorney fees must be reasonable.  One measure of reasonableness is the amount of fees as contrasted to the amount at stake.  It is unreasonable to spend $125,000 in attorney fees, pursuing a claim for $82,000.  The amounts previously paid by Placide to Marguiles are adequate compensation.  Therefore the court awards Marguiles nothing more.

People v Uribe

Cal Court of Appeal
Filed 9/30/11

Uribe's conviction of rape was set-aside in a previous appeal, when evidence surfaced that the police had sent the victim to a medical examination, and had concealed the report. After the reversal, but before a new trial, it surfaced that the deputy district attorney knew about the report, and had lied about it in a hearing. Furthermore, the hearing brought forth evidence that this was not an isolated error, but a deliberate effort between prosecutors and police to conceal evidence from defense counsel generally. The trial court therefore dismissed the case against Uribe. The dismissal is reversed. While the conduct is outrageous, it did not prevent Uribe from getting a fair trial with availability of all evidence. Case is sent back for a new trial.

E.T. et al v Cantil-Sakauye

Ninth Circuit
Filed 9/13/11

This is a class action lawsuit on behalf of 5,000 foster children in Sacramento County, who allege that the caseload of attorneys representing children in the Sacramento County Dependency Court is so high, that the children cannot obtain effective assistance of counsel. The federal court refused to hear the case under the Abstention Doctrine, and Younger and its progeny. This was a proper exercise of judicial discretion. In order to hear this case, the federal court would have to make a detailed investigation of a state court system, and entertain remedies that have an impact on the judicial budget, program priorities, court administration, and the examination of numerous individual cases.

Chevron v M&M Petroleum Services

Ninth Circuit
Filed 9/12/11

In litigation between a franchisor and a franchisee, typically only the successful franchisee is entitled to attorney fees under the Petroleum Marketing Practices Act. However, in this case, when Chevron sued M&M, M&M responded with a counterclaim that was frivolous, based on perjury, and involved other misconduct. Therefore, the court properly exercised its discretion in awarding attorney fees to Chevron.

Santiago Rodriguez v Holder

Ninth Circuit
Filed 9/9/11

Santiago's attorney admitted in an immigration proceeding, that Santiago had aided and abetted his wife and brother in an attempt to illegally enter the United States. There was a persistent dispute between Santiago and the government over whether he had actually made the admission in an interview with an immigration agent. The attorney failed to investigate the discrepancy, and was therefore ineffective. Since the admission is apparently false, that is sufficient grounds to relieve the immigrant from the admission made by his own retained attorney.

Kayne v The Grande Holdings Ltd

Cal Court of Appea
Filed 9/2/11

In upholding substantial sanctions against Grande, the court noted that Grande produced a large number of documents in a disorganized fashion, shortly before a deposition. The court further held that the plaintiffs had no obligation to postpone their deposition or postpone their trial preparations, in order to give Grande a second opportunity to properly comply with discovery.

Fremont Reorganizing Corporation v Faigin

Cal Court of Appeal
Filed 8/30/11

Fremont Reorganizing Corporation (FRC) and Fremont Indemnity are subsidiaries of Fremont General. Faigin was in-house counsel to Fremont General, and in that capacity provided legal services to Fremont General, FRC, and Fremont Indemnity. Fremont Indemnity was insolvent, and the insurance commissioner obtained a court order prohibiting disposal or transfer of its assets. Fremont General fired Faigin on March 12, 2008. On March 13, he informed the commissioner that FRC and Fremont General were planning to sell property that belonged to Fremont Indemnity. Faigin sued for wrongful termination. FRC cross-complained for breach of attorney duty to a client. The court granted Faigin's SLAPP motion as to the cross complaint. Faigin may have violated the Rules of Professional Conduct, but his conduct may not be considered illegal as a matter of law under Flatley. This court holds that illegality under Flatley is limited to criminal conduct. Faigin's contact is not automatically protected by the litigation privilege, because that privilege generally does not protect litigation between attorneys and their own clients. Attorneys presumably acquire confidential information in the course of an attorney-client relationship, as held by Oasis West. Faigin's communications to the insurance commissioner would appear to violate the duty of confidentiality. Therefore, the SLAPP motion should have been denied as to the allegation of breach of fiduciary duty. The SLAPP motion is upheld as to conflict of interest charges under Rule 3-310(C). Faigin was a former attorney, not a present attorney for Fremont entities, and therefore could not have violated the present attorney prohibition of that rule.

In re Blue Pine Group

Ninth Circuit BAP
Filed 8/22/11

Blue Pine Group was formed by Mr. Pink and Mr. Grose. They had a falling out. Mr. Grose employed attorney Winterton to file bankruptcy on behalf of Blue Pine. The bankruptcy filing lacked a corporate resolution authorizing the filing. Shortly after it was filed, Pink's attorney notified Winterton of the defect. He also informed Winterton that there were four directors and shareholders, and there had never been a proper meeting of either to authorize the bankruptcy. Winterton may have had a valid basis to file the bankruptcy, but once it became evident that there was no authority to proceed with it, it was improper to continue the battle. Therefore, Winterton violated Bankruptcy Code Section 9011. The violation is determined on an objective basis. Pink is entitled to their attorney fees, in excess of $100,000, an amount that appears reasonable from the record in this matter.

IRMO Ramirez

Cal Court of Appeal
Filed 8/22/11

Rand represented Delia Ramirez in a dissolution of marriage from Isaac Ramirez.  Delia gave Rand a proper lien under the Family Code, which was properly recorded.  After the dissolution was over, Isaac sought to set aside the lien, serving Delia but not Rand, nor joining Rand as a party.  The first judge granted the motion.  When Rand discovered what had happened, she filed a joinder request, and asked for declaratory relief as to the order.  The second judge joined her in the case, but held that he had no authority to overrule the prior judge’s order. Rand was an indispensable party to the motion setting aside the lien.  Therefore, the order setting aside the lien is void as to her.  The second judge had authority and should have so ruled.  The case is remanded for a hearing on her motion.

Zelasko-Barrett v Brayton-Purcell LLP

Cal Court of Appeal
Filed 8/17/11

Zelasko-Barrett was a law clerk for the law firm of Brayton-Purcell.  The question is whether he was entitled to overtime pay under the labor code.  The answer turns on his law degree, rather than his job title.  The answer depends on the fact that his job required the exercise of discretion and independent judgment, rather than routine mental work.  The facts that he could not practice law, nor sign legal documents, nor make court appearances, were not controlling.  The kinds of decisions made in doing legal research, drafting legal documents, and writing legal memorandum require independent exercise of judgment and discretion.  Therefore, he was an exempt employee and not entitled to overtime.  

In re Hill

Cal Court of Appeal
Filed 8/9/11

Hill was convicted of multiple counts of sexual misconduct against his stepdaughter and a friend. His counsel was ineffective, for failure to secure medical photographs from the prosecution, and failure to employ an expert consultant, to advise as to the pros and cons of opposing the prosecution's expert. Defendant has provided evidence that a reasonable likelihood exists, that there are many doctors who would have contradicted the prosecution's expert.

Guardianship of H. C., a minor
Cal court of appeal
filed 8/09/11

H.C. is a 16-year-old girl who lived with her mother, and who was often left in the custody of her older brother Steven.  L.B. is another older brother.  After H.C. accused Steven of molesting her, L.B. and his wife sought guardianship of H.C.  The mother asked for appointed counsel, but was not given any.  Held: She had no right to appointed counsel in this proceeding.  The guardianship was prosecuted by a private person rather than by the government.  The existence of the guardianship itself cannot be used to deprive the mother permanently of her daughter’s custody.  At the hearing below, the judge gave the mother considerable leeway in questioning witnesses, testifying by narrative, and arguing in her own defense. 

People v Battle

Cal Court of Appeal
Filed 8/09/11

Defendant alleges that the judge did not hold a proper hearing under Wheeler and Batson, due to the prosecution’s preemptory challenge of an African-American juror.  The record does not demonstrate that the juror was the only African-American on the panel, and therefore the argument is not well taken. 

Giorgianni v Crowley

Cal Court of Appeal
Filed 8/04/11

Giorgianni entered into fee arbitration with her former attorney Crowley under the MFAA, Bus & Prof 6200 et seq.  She had paid $69,000 of a $77,000 bill, and the arbitrators awarded her a recovery of approximately $29,000.  He sought trial de novo in small claims court, limiting his claim to $5,000.  She filed to confirm her  $29,000 arbitration award in Superior Court, general jurisdiction.  The MFAA does not define how a party calculates the amount in controversy when seeking trial de novo.  Therefore, it was proper for Crowley to seek recovery in small claims court by waiving all amounts in excess of $5,000. 

USA v Houston

Ninth Circuit
Filed 08/03/11

Houston was a member of the Aryan Brotherhood that was involved in a prison attack on DC Blacks prison gang. One of the witnesses against him was McConaghy, a jailhouse informant. Prior to trial, the government disclosed that McConaghy would testify that Houston told him that Houston intended to keep killing black prisoners until he died. On cross-examination, the defense attempted to impeach McConaghy by pointing out that in a different trial, he had provided information about a Mr. Campbell but said nothing about Houston. In the middle of trial McConaghy testified that he had told US Attorney Martin about Houston. The prosecution then secured Martin’s notes, which said nothing about Houston, and provided a copy to the defense team. The defense attorneys then used those notes on cross-examination. There was no Brady violation here, because the evidence was not material. “Materiality” under Brady occurs if there is a reasonable probability of a different outcome, if the information had been disclosed. Here the defense had more powerful evidence, this evidence was similar to it, and they had an opportunity to use it.

Rappaport v Gelfand

Cal Court of Appeal
Filed 07/28/11

Rappaport was a 31% partner in Gelfand, Rappaport, and Glaser LLP. He indicated he wished to disassociate himself from the LLP, and the other two partners wished to continue the partnership. This is a case of first impression on how to value the interest of the disassociating partner under Corporations Code 16701, which is part of the Uniform Partnership Act (UPA). Under the UPA, a disassociation is different from a dissolution. The remaining partners have the right to continue the business, and the disassociated partner has the right to be paid a buyout price. The buyout price is the hypothetical sales price of the departing partner’s interest. The trial court correctly looked at the categories of pending cases, and treated each of them separately, assessing a value, then discounting it to the present cash value of the anticipated future outcome of the receivables. Under the UPA, only the partnership is liable for the buyout, not the individual partners.

Ingram v Oroudjian

Ninth Circuit
Filed 07/27/11

Ingram brought lawsuit against the Federal and State Fair Housing Act, and prevailed against an unlawful detainer action. The Court held that Ingram and his attorneys took unreasonable settlement positions and prolonged the litigation. Therefore, it awarded him a much lower attorney fee than he asked for. It was legitimate for the trial Judge to consider the settlement negotiations, and also to rely upon the Court’s own knowledge and experience with attorney fees in setting the hourly rate.

John-Charles v State of California

Ninth Circuit
Filed 7/22/11

With court approval John-Charles fired his attorney and represented himself mid-trial.  When the trial began several months later, he asked the court to reappoint counsel.  Denied. He had no constitutional rights to have the motion granted.

People v the Appellate Division of the Superior Court 

Cal Court of Appeal
Filed 7/22/11

Two companies are being prosecuted for violating local ordinance against supergraphic advertising signs.  The prosecutor filed a motion for corporate discovery, to obtain such items as articles of incorporation, statement of officers, etc.  The trial court held that such discovery was not permitted under Proposition 115, as codified in Penal Code 1054.  However, Penal Code 1054.4 preserves the prosecutor’s right to obtain nontestimonial evidence, even under prior existing Supreme Court case law. 

Gonzalez v Chinn

Cal Court of Appeal
Filed 7/21/11

This is a medical malpractice case on behalf of the plaintiff minor against the doctor who delivered her.  The case settled for $200,000.  The attorney sought $61,000 in fees, the maximum awardable under MICRA.  The court awarded $50,000, the maximum permitted under the L A local rule of court.  The attorney appealed, seeking the additional $11,000 in fees.  There is no automatic entitlement to the MICRA maximum.   The trial court’s reliance on a local rule instead of CRC 7.955 was improper.  The attorney’s affidavit in support of fees does not address with most of the criteria in Rule 7.955. The case is thus remanded for further hearing under the applicable state rule.  It is the duty of the respective courts to make an independent analysis of the request, using the criteria in Rule 7.955, and also to make sure that the minor’s interests are adequately protected.

In re Corrinet

Ninth Circuit
Filed 7/19/11

Corrinet is a California lawyer who was admitted to the US District Court in Oregon, even though he was not an active member of the Oregon State Bar, as required by local US District Court rule. During one of his cases, the judge indicated that Corrinet should attempt to be admitted by Oregon. Five months later, he revoked Corrinet's admission to the US District Court. The order is reversed. The proceeding is more like a disbarment hearing, and the judge failed to give Corrinet all the procedural requirements, such as adequate notice, opportunity to be heard, and opportunity to put on a defense.

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CASES PENDING IN CALIFORNIA SUPREME COURT

Kirby v Immoos Fire Protection

Review Granted 11/17/10

May attorney fees be awarded under Labor Code 218.5 or 226.7 when the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?

Serrano v Stefan Merli

Oral Argument 09/07/11
Is plaintiff eligible for an award of attorney fees under the private attorney general doctrine based on a successful challenge to a court reporter’s service charges that established legal precedent?

Coito v Superior Court

Review Granted 06/09/10

Is the statement of a witness that is recorded verbatim by an attorney entitled to the protection of the California work product privilege?

People v Carranco

Review Granted 05/17/10

This case is on hold pending ruling in People v Hernandez. The issue is whether a gag order, precluding defense counsel from discussing with his client, a sealed declaration of a witness, is automatic reversible error, or requires a showing of prejudice.

Jankey v Lee

Review Granted 05/10/10

Is an award of attorney fees to a prevailing defendant under the California Disabled Persons act preempted by the Federal American with Disabilities Act?

People v Hernandez

Review Granted 2/22/10

The trial court issued a gag order that precluded defendant's counsel from discussing with his client a sealed declaration of a testifying prosecution witness. Is this structural error reversible, per se, or does there have to be a showing of prejudice?

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CASES PENDING IN THE U.S. SUPREME COURT

Pending U.S. Supreme Court Cases

Lafler v Cooper

Oral Argument 10/31/11

Cooper was being prosecuted for assault with intent to commit murder.  He rejected a plea bargain based on advice from his attorney, which in turn was based on an erroneous understanding of state law.  After an otherwise fair trial, he was convicted and received a longer sentence.  Does the Sixth Amendment right to effective assistance of counsel now give him the right to set the conviction aside and accept the plea bargain? 

Missouri v Frye

Oral Argument 10/31/11

Frye was sentenced to three years in prison for driving with a revoked license, it being his fourth offense.  After he was convicted, he discovered that the prosecutor had offered his attorney a 90-day sentence, but the attorney never told him.  Does he have a federal remedy due to the ineffective assistance of counsel?

Fox v Vice 

Argued 3/22/11

Fox ran for police chief against Vice.  Vice committed acts of extortion and abuse of his position in an attempt to get Fox out of the race.  Fox filed both federal and state civil rights claims.  He dismissed his federal claims just prior to a ruling on a motion for summary judgment.  However, the state claims continued to be valid.  The lawsuit was against Vice as well as against the city.  The city now claims to be the victorious defendant and seeks attorney fees.  The lower court ruled that it was entitled to attorney fees, and entitled to them without apportionment between successful and unsuccessful claims. 
 

Ashcroft v Al-Kidd

Oral Argument 03/02/11

Al-Kidd was arrested as a material witness under 18 USC 3144.  The application did not disclose that Al-Kidd was an American citizen, married to one, and that Mr. and Mrs. Al-Kidd had children and all lived in the U.S.  Neither did the application disclose that he had previously cooperated with FBI agents.  After he was arrested he was moved to three different detention centers in three different states, before he was released by court order which required him to live with his in-laws in Nevada, report to a probation officer, and consent to home visits.  The restrictions ended 15 months later, by which time he had been fired from his job and his wife had left him.  The question here is whether he can civilly sue the Attorney General of the United States, based on A. G. Ashcroft’s actual knowledge of the illegality of Al-Kidd’s detention.  The question also includes whether this would be direct liability or vicarious liability, and absolute immunity or qualified immunity.

Cullen v Pinholster

Oral Argument 11/9/10

Pinholster was convicted of murder.  His counsel spent 6.5 hours preparing for the penalty phase.  Although counsel knew Pinholster had a history of seizures and was not being medicated for it, he relied on a short interview with a psychiatrist that Pinholster did not show any signs of mental disorder or brain damage.  After conviction Pinholster filed a habeas corpus proceeding with a different attorney, showing that he actually had a history of mental illness, bipolar disorder, and severe seizure disorders.  This, too, was denied.  He then filed federal habeas corpus.  In that proceeding, he brought the original doctor, who testified that the trial attorney had only provided him with police and probation reports, not educational, medical and psychiatric records.  The case went back to the state courts for further habeas, which were denied.  They came back to the federal court.  Counsel now brought in two new doctors.  The district court granted habeas corpus.  Ninth Circuit affirmed.  The question here is, is it proper to grant habeas corpus based on new evidence brought in federal court that was not presented in the state court?

Premo v Moore

Oral Argument 10/12/10

Moore was convicted of murder, in part due to a confession obtained in violation of his Miranda rights.  His attorney never filed a motion to suppress the confession.  The error met the first part of the test for ineffective assistance of counsel, because it was unreasonable to fail to file the motion.  The question is whether there is a reasonable probability that the proceeding would have a different outcome if he had performed properly.  That is Strickland.  We now get to AEDPA.  AEDPA mandates that the state court rulings be given great deference, that is, benefit of the doubt.  Here, the state court has held that it is unlikely there would have been a different outcome.  However, Fulminante requires that when there is a confession, the state has to prove that the admission of the confession was harmless.  The two standards clash and the Supreme Court is asked to resolve the clash.

Harrington v Richter

Oral Argument 10/12/10

In the prosecution of Richter and Branscombe, they were accused of entering Klein’s house to rob him, and that Branscombe shot Klein during the robbery.  Richter’s defense was that they had no intent to rob him, that he heard gunshots when Branscombe went into the house, and came in after Klein had been shot.  Klein was lying in a pool of blood at the time.  Richter’s counsel did not seek costs to have a forensic analysis of the blood.  Rather, he relied solely upon his powers of cross-examination to discredit the prosecution blood witnesses.  The question is whether his conduct constitutes ineffective assistance of counsel.

Holder v Humanitarian Law Project

Oral Argument 2/23/10

18 USC 2339 prohibits, among other things, the knowing provision of service, training, expert advice, or personnel to a designated foreign terrorist organization. HLP wishes to provide healthcare advice, legal advice, economic advice, and advice on how to pursue a political argument at the United Nations, to two different organizations that have been designated as terrorist organizations. The Ninth Circuit has declared 18 USC 2339 as unconstitutional in violation of the first amendment. Some commentators have argued that the language is so broad that it could include lawyers making legal arguments on behalf of people prosecuted under the act.

Mohawk Industries v Carpenter

Argued 10/5/09

Mohawk fired Carpenter after an investigation that included an interview with Carpenter by Mohawk's attorney. The trial judge found that Mohawk had waived the attorney-client privilege and ordered disclosure of various communications with that attorney. The question here is whether this is reviewable under an interlocutory appeal, or must wait until the case is over. The federal circuits are evenly split on this issue.

Perdue v Kenny A.

Argued 10/14/09

Kenny A filed a class action case to fix the Georgia foster care system. Ultimately a consent decree was issued. Kenny A's attorneys then sought attorney fees. The trial court began with the lodestar, reasonable hourly rate X reasonable hours. It then adjusted the lodestar based on the high quality of performance by the attorneys. The state of Georgia appeals, arguing that the quality of performance was already included in the lodestar.

Pottawattamie County v McGhee

Argued 11/4/09

McGhee provides evidence that he was framed for a murder he did not commit. The District Attorney and the police investigators both withheld exculpatory evidence, which ultimately came out and resulted in McGhee being released from prison. The DA and police argue they have absolute immunity from any civil liability as a result of their official activities. McGhee argues that 42 USC 1983, as interpreted by Imbler, Burns, & Buckley only provide them with qualified immunity.

Kansas v Ventris

Argued 1/21/09

Ventris was held in jail pending trial. The police deliberately placed Doser in the cell with him, with instructions to Doser to listen to any statements Ventris made about the alleged crime. After Ventris testified on his own behalf, Doser was permitted to testify as an impeachment witness. Can the testimony can be used for impeachment purposes, as an exception to the suppression rule?

Montejo v Louisiana

Argued 1/13/09

The court appointed counsel for Montejo in the morning. In the afternoon the police took him to the murder site, and read him his Miranda warnings, claiming they did not realize he had appointed counsel. He waived those rights and made incriminating statements. The court refused to suppress the incriminating statements. The question presented is whether it was proper to approach him, since he had not expressly accepted the appointment of counsel on his behalf?

Caperton v Massey

Review granted 11/14/08

Should an appellate justice recuse himself from a case in which the CEO of one of the corporate parties donated $3,000,000 to his campaign?

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OTHER NOTABLE MATTERS

Ruiz v Podolsky

Cal Supreme Court
Filed 8/23/10

A wrongful death action is an independent action that belongs to the heirs of the decendent. However, if the medical care contract between the decedent and the decendent's healthcare provider contains a mandatory arbitration clause, that clause can bind the heirs whose wrongful death claim is based on medical negligence.

Skilling v U.S.A.

U.S. Supreme Court
Filed 6/24/2010

Enron CEO Skilling was convicted under 18 USC 1346, "honest services" statute, due to self-dealing. That's over a broad period. Section 1346 only applies to bribery and kickback schemes.

Bechler v Macaluso

Attorney who signed up Oregon client for California class action is governed by Oregon fee agreement law, since actual sign up occurred in Oregon.

Note: this is an unreported case from the US District Court in Oregon.

Minors Compromise

New rule 7.955 Cal. Rules of Court create statewide standards on awards of attorney fees in cases involving minors and persons with a disability. Use Judicial Council Form MC-350.

Malpractice Disclosure Requirement Comes Back

California Rule of Professional Conduct 3-410, requires disclosures to clients if an attorney does not carry malpractice insurance.

E-mail Address Required

All attorneys must lodge and e-mail address with the State Bar under rule 9.7, California Rules of Court. It can be a private one.

Findley v State Bar of California

Ninth Circuit
10/07/09

Disciplinary costs are no longer dischargeable in bankruptcy.

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