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Current and pending cases in various courts that may affect you or your client.RECENT APPELLATE CASESHarris v Bingham McCutchenCal Court of Appeal Hartwell asserts wrongful termination. Bingham seeks arbitration under the employment agreement. Choice of law in that agreement applies to Massachusetts law. Under that state’s law, statutory discrimination claims cannot be arbitrated without both parties’ consent. Hartwell gets a trial in superior court.
People v EroshevichCal Court of Appeal Dr. Eroshevich and attorney Stern were convicted of conspiring to provide patient/client Smith with controlled substances. Stern knew that controlled substances were being provided under false names. As a lawyer, Stern could not have an honest belief that his conduct was legal. The court’s grant of new trial is reversed and the verdict reinstated.
In Re Marriage of BenedettiCal Court of Appeal Jeanette Benedetti, wife #1, joined Gunness, wife #2, as a third party in the first dissolution, alleging fraudulent transfer of property from Paul the husband to Gunness. Jeanette sought a pendent lite award of attorney fees, which the trial court granted. Held, the trial court had discretion to do so, even in the absence of Jeanette showing ahead of time, a likelihood of success.
Lim v CarrascoCal Court of Appeal Lim pays child support based on her 80% schedule at her law firm. Carrasco demands child support based on earning capacity for 100%. The proof was, she has to work 40 hours a week to make that 80%, and it is not in the children’s interests that she work more than that. The trial judge properly exercised discretion.
Mashiri v Dept. of Education9th Circuit Mashiri is an immigrant who seeks a Stafford Loan for law school. At the time, he had an asylum application pending. As such, his immigration status was “temporary” and therefore he did not qualify for a Stafford Loan.
Law Offices of Higbee v Expungement Assistant ServicesCal Court of Appeal Attorney Higbee alleges that EAS commits unfair competition by using non-lawyers and unregistered document preparers to prepare expungement petitions, thereby diminishing his law practice. Held, even in the face of Prop 64, he has alleged sufficient damages under the unfair competition law to survive a demurrer.
Matter of LawrenceReview Department State Bar Court Lawyer avoids disbarment for fourth offense in a three-strike system. He has severe physical difficulties that are mitigation. However, before he can resume law practice, he will have to prove that the problems are sufficiently controlled to avoid reoffending.
Entente Design v Superior CourtCal Court of AppealFiled 3/12/13 The case was assigned to Judge Meyer for all purposes. On November 9 he assigned the case to Judge Vargas to begin on November 14. That change was not sufficient to make Judge Meyer a master calendar judge, and thus the parties could file challenge to Judge Vargas under CCP 170.6 later that day, rather than be required to make it at once to Judge Meyer.
Elijah v Superior CourtCal Court of Appeal Psychologist employed by attorney as consultant in included within the attorney client privilege. Tarasoff does not apply, because Tarasoff only applies to treating psychologists.
Chaidez v USAU S Supreme Court Padilla holding, that it is ineffective assistance of counsel if criminal defense lawyer does not warn immigrant of possible deportation, is not retroactive.
Gunn v MintonU S Supreme Court Legal malpractice case arising out of a patent infringement suit may be heard in state court.
SF Unified School District v First Student Inc. Cal Court of Appeal Court orders parties and their attorneys to refrain from speaking with employees of opposing party. Order is an invalid extension of Rule 2-100 as it applies to parties speaking to one another. It might be valid as to two employees, who may have been the actual front line employees who performed acts sought to be imputed to a party. Counsel can generally advise a client about speaking to opposing party but cannot script the conversation. The order constitutes a prior restraint under the First Amendment, issued without adequate basis. And the communications may be exempt because of other statutory rights that would permit direct counsel to witness communications.
Mincal Consumer Law Group v Carlsbad Police DepartmentCal Court of Appeal Law firm sought 9 months of records and was given only 30 days - law firm appealed. Wrong remedy; statute requires review by writ, filed within 20 days of notice of entry of judgment.
Padgett v Loventhal9th Circuit District Court must show its work when awarding attorney fees so Court of Appeal can review the method by which the court reached its result.
Cates v ChiangCal Court of Appeal Cates obtained a ruling that required the Gambling Control Commission to conduct statutory audits on Indian casinos. Audits were done and the state collected an additional $11,500,000 as a result. Held, the attorneys were entitled to lodestar, a multiplier due to the contingent risk, for the main motion; but no multiplier for the motion for attorney fees. Further, the fact that the attorneys had to reconstruct time records went to weight of the evidence, and did not make the records inadmissible.
Correa-Rivera v Holder9th Circuit Correa-Rivera filled out an application for cancellation of removal, then gave it to his attorney, who did nothing with it. The attorney admitted that there was no excuse. That is sufficient grounds to reinstate the cancellation proceeding, even if some of the Lozada requirements were not met.
Lucky United v LeeCal Court of Appeal When the trial court enters an award for attorneys’ fees and costs on appeal, the award begins to accrue interest on the date it is entered. However, it is still considered part of the trial judgment. By way of contrast, the court of appeal award for costs is a separate judgment.
Windsor Pacific v SamwoodCal Court of Appeal Windsor sought establishment of a prescriptive easement, which was denied because it already had a permissive easement. Since there was a contract governing the latter, and the latter was asserted as an affirmative defense, Samwood can seek attorney fees.
Turkanis v PriceCal Court of Appeal Although court granted counsel a family law attorney real property lien, court had authority to expunge it at the conclusion of the case for good cause.
Silas v ArdenCal Court of Appeal Gunnell, represented by Arden; sued Silas for malpractice. Silas won at a jury trial, then sued Arden for malicious prosecution. Upheld. He continued to allege that Silas misappropriated money from Gunnell after unequivocal evidence to the contrary turned up. He continued to allege that she negligently abandoned a cause of action in the underlying case, after being confronted with evidence that the abandoned cause of action had no legal merit.
Campi v CampiCal Court of Appeal Husband appeals judgment, alleging his attorney was ineffective. Having no right to counsel, the assertion is frivolous.
Gray v ChiuCal Court of Appeal The case was ordered into arbitration. Ginsburg was Chiu’s attorney. He left his law firm to become a neutral at ADRS. Around the same time, the two party arbitrators chose as a neutral, another arbitrator at ADRS. That arbitrator did not disclosed Ginsburg’s role as another member of ADRS. He had a duty to do so. The duty is unwaivable, even though Ginsburg’s photo was on the wall of ADRS.
Rickley v GoodfriendCal Court of Appeal Goodfriend dumps debris on Rickley’s property. The court ordered Goodfriend to remediate, and as part of the plan $240,000 was placed in the trust account of Goodfriend’s attorney, who disbursed contrary to the court order. That violated the attorney’s duty to Rickley. The attorney personally directed work, also contrary to the court order. That violated the attorney’s duty to Rickley. Held, Rickley can sue both the defendant and the attorney in a separate action and include a cause of action for conspiracy.
Parker v HarbertCal Court of Appeal Husband brought contempt proceeding against wife over her conduct with their child while he was in prison. All but one charge was dismissed and she was acquitted on the other. Held, the proceedings were the sort that draw attorney fees under Fam C 271, and in this case, they amount to $92,000. Bank of America v Superior CourtCal Court of Appeal Tripartite relationship of insurance company, insured, and attorney also applies when the insurance company is a title insurance company, when the suit is for a plaintiff rather than a defendant, and even though there is a reservation of rights.
Ryan v GonzalesU S Supreme Court Mental incompetence of the prisoner does not create a per se right to a stay of a habeas corpus case.
USA v Sideman Bancroft9th Circuit IRS is investigating Nolan on suspected tax fraud. Nolan’s tax records are now in the possession of her attorney. The IRS knows what the records are and also knows that the attorney has them. Thus, under the “foregone conclusion” principle, the attorney has to turn them over.
People ex rel Herrera v. StenderCal Court of Appeal Stender is a non-California attorney who took over a disbarred California attorney's immigration law practice by becoming the sole shareholder of the disbarred attorney's California certified law corporation. Disbarred attorney stayed on as a "paralegal." Held, an injunction commanding Stender to comply with Rule of Professional Conduct 1-311 (warning clients that attorney is employing a disbarred attorney) sustained under Bus & Prof C 6167.
CASES PENDING IN CALIFORNIA SUPREME COURT
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