RECENT APPELLATE CASES

Montgomery v Superior Court

Cal Court of Appeal
Filed 7/16/10

Montgomery sued Knight for medical malpractice.  Montgomery listed as an expert, Dr. Shamoun.  Knight filed a motion to exclude Shamoun, because his attorney Schafer had represented Shamoun in prior litigation.  Shamoun then filed a declaration waiving any conflict of interest that might occur.  The duty of confidentiality is one owed by the attorney to the client, not vice versa.  Therefore, Dr. Knight’s motion was really intended to prevent Montgomery from asserting a disqualification later, if Schafer had to cross examine Shamoun using confidential information.  Thus, the waiver could properly be made by Shamoun, because it was his interest at stake.

La Serena Properties v Weisbach

Cal Court of Appeal
Filed 7/15/10

Weisbach was named as an arbitrator in a dispute between LaSerena and Merchant Builders.  It was alleged that Weisbach failed to disclose that Weisbach was the boyfriend of David Baskins’ sister, David Baskin being one of Merchant Builders attorneys.  Rather, Weisbach simply informed everybody that he was a personal friend of Baskins.  In California, arbitrators have the same judicial immunity as judges.  The failure to make an adequate conflict disclosure would be covered by that immunity, so that a party could not sue the arbitrator personally in a civil cause of action.  Weisbach was employed by the American Arbitration Association, and they cannot be held civilly liable for his actions, either.

People v Gabriel

California Court of Appeal
Filed 7/14/10

This is a civil action by the city against Gabriel, for improper activity as a landlord, under Bus & Prof 17200.  Gabriel’s improper sexual harassment of tenants could be deemed an unlawful business practice, subject to the remedies of the unlawful competition law.  However, since it is based upon a local ordinance, it is not proper to have a court award of attorney fees against the losing party. 

USA v Graf

Ninth Circuit Court
Failed 7/7/10

Graf was the founder of, and consultant to, Employers Mutual, a Nevada healthcare corporation.  Several corporate attorneys were ordered to testify in Graf’s criminal trial, with the trial court holding that the attorneys represented Employer’s Mutual and not Graf individually.  The trial court held that Graf did not seek personal advice, and therefore had no personal attorney-client privilege.  She also held that his purely subjective belief that his communications were privileged was not sufficient to establish it.  When a corporate agent speaks to an attorney, and intends to do so individually rather than on behalf of the corporation, it is the duty of the employee to make that distinction clear to the attorney.

Mindy’s Cosmetics v Dakar

Ninth Circuit
Filed 7/6/10

This is the Dakar family feud.  Israel and Natan are feuding with Sonya, Ygal, Daniella and Michal.  Israel and Natan sue the other members of the family, as well as attorney Kamran, for registering two Mindy’s trademarks in Sonya’s name.  In the first part of the analysis, filing a trademark application is protected under the SLAPP statute.  In this case, it also arises out of the protected act.  However, the filing of a trademark application is not done as part of litigation, or in contemplation of litigation, and is therefore not subject to the litigation privilege.  Israel and Natan have shown a likelihood of prevailing because it appears that Kamran acted on behalf of Sonya without sufficient corporate approval.  The case may proceed. 

Koszdin v State Comp

Cal Court of Appeal
Filed 7/6/10

Plaintiffs are a group of attorneys suing State Comp for failure to pay interest on attorney fees awarded in workers’ compensation cases.  Since the awards are made directly to the attorneys, they do have standing to bring the suit.  Since the actual awards did not specify interest, no interest is due and the suit must fail.

People v Lomax

Cal Supreme Court
Filed 7/1/10

Lomax was one of three defendants in a murder trial.  He had court appointed counsel, then acted pro per, then asked for court appointed counsel later in the proceeding.  His newly appointed counsel said he could not be ready for trial within the statutory time so the judge granted a continuance over Lomax’s objections.  Under these facts, the judge appropriately exercised his discretion and the statutory time to come to trial was properly waived by that particular attorney at that particular time.

Mundy v Neal

California Court of Appeal
Filed 6/30/2010

Mundy sued Neal for failure to provide a handicapped parking space at her automotive service station. Upon being served with summons and complaint, Neal began providing such a space. Mundy then dismissed the complaint. Since the complaint was dismissed, he’s not the prevailing party, and gets no attorney fees. Since he did not try to settle the case before filing it, he is not entitled to attorney fees as a catalyst, under current California law.

People v Jones

California Court of Appeal
Filed 6/30/2010

Jones claims that he told Attorney Quinn about two possible percipient witnesses to the alleged crime. Quinn says Jones did not. This is all besides the point. Once he learned of their names, Quinn should have   interviewed them . The failure to do any of the foregoing constitutes ineffective assistance of counsel.

Lal v State of California

Ninth Circuit
Filed 6/25/2010

Lal’s attorney failed to meet the court deadlines and file papers on time. The trial court therefore dismissed the underlying case. Lal has provided evidence that the attorney’s conduct constituted gross negligence, which is grounds for securing relief from a judgment. The dismissal is  therefore reversed. 

Simonia v Glendale Nissan

Ninth Circuit
Filed 6/24/2010

Simonia was receiving disability payments from Hartford under an ERISA plan. When social security also awarded him disability payments, Hartford reduced its payments. Hrtford and Simonia sued each other. The Hartford claim was dismissed and Simonia prevailed on a counterclaim. Held, this partial success meant that the court should have exercised discretion in deciding whether or not to award attorney fees to Simonia.

Schaffer v Superior Court

Cal Court of Appeals
06/23/10

Schaffer had his own private attorney in a criminal prosecution; therefore the district attorney charges $0.15 a page for photocopies, instead of the $0.03 that it charges public defenders and appointed counsel. That was sufficient to meet the DA's statutory duty. Counsel always had the option of reading the material in the DA's office.

Murdoch v Castro

Ninth Circuit
06/21/10

Murdoch and DeNardo robbed a bar, killing one patron and severely wounding another. DeNardo was tried and convicted, and the judge told him that the judge had 90 days to change the sentence. DeNardo then cooperated with the DA and testified against Murdoch. During Murdoch's trial, DeNardo revealed that he had written a letter to his own attorney claiming that the police had coerced him into confessing. The DA revealed the existence of the letter. Murdoch's attorney sought a copy, but was denied due to the attorney client privilege in the state of California. Murdoch was convicted. He now seeks habeas corpus. Under federal habeas corpus law, the state court decision would be overturned only if it contradicts clear US Supreme Court case law. There is no US Supreme Court case law of the clash between the attorney client privilege and the sixth amendment. Therefore, it would be improper to grant habeas corpus in this case.

People v Datt

Cal Court of Appeal
06/17/10

There is no rule of law that a defense attorney must always offer expert testimony on the reliability or unreliability of an eye witness. The judge has discretion to permit such testimony in the appropriate case. There was no ineffective assistance of counsel in this case, where the defense attorney did not offer such testimony.

Howard v Clark  

Ninth Circuit
06/15/10

Howard was accused of the murder of Freeman and the attempted murder of Ragland. The two trial witnesses against him were Hernandez and Fountain. Howard's attorney never interviewed Ragland. After the conviction, Ragland stated that Howard was not the shooter. One would normally expect the surviving victim to be the star witness for the prosecution. Ragland had given a statement to the police in which he declined to identify the shooter. A reasonable defense attorney would therefore attempt to interview him.

Astrue v Ratliff 

US Supreme Court
06/14/10

Ratliff represented Ree in a successful suit against the United States for social security benefits. The district court awarded attorney fees under EAJA. The government sought an offset, because Ree owed the government money. This was proper. An award of attorney fees is made to the litigant as the party, not to the litigant's attorney. The attorney may have a beneficial interest in the award, but the attorney does not own the award, the party does.

Holland v Florida

US Supreme Court
06/14/10

Holland was sentenced to death and asked his attorney to file a habeas corpus suit. Holland made several such requests. The attorney filed it five weeks late. The attorney did not respond to Holland's requests for information, and Holland made repeated requests to the state courts and the Florida Bar to remove the attorney from his case. The foregoing is sufficient due diligence for equitable tolling, and therefore is a legitimate excuse for late filing.

USA v Navarro 

Ninth Circuit
06/11/10

During closing argument, the prosecutor argued his interpretation of the law. Defense attorney objected, and the judge told the jury that the attorneys could argue their interpretations of the law, but that the jury would follow the judge's instructions. His instructions were correct. Therefore, no reversible error.

West v Ryan

Ninth Circuit
06/10/10

In a habeas corpus case, the district court denied a claim of ineffective assistance of counsel. In the death penalty sentencing phase, the trial attorneys decided to rely on legal arguments, rather than trying for a medical or other mitigation argument. West did not provide evidence of any facts, which if decided in his favor, would show any sort of habeas claim. Discretion was not abused, even though the ruling was made without a formal hearing.

G.R. v Intelligator 

Cal Court of Appeal
06/10/10

G.R. was the husband in a dissolution of marriage, and Intelligator was the attorney for the wife. Intelligator filed some court documents in violation of rule 1.20, by failing to hide certain personal information in financial documents. Husband now sues his wife's former attorney. She files a SLAPP motion to dismiss. The motion should have been granted, since the underlying activity occurred as part of a petition to the government. The chance of success does not exist here, because the activity is covered by the litigation privilege. Husband's remedies should have taken place within the dissolution action, such as requesting sanctions or requesting that his credit report be sealed.

People v Beckley

Cal Court of Appeal
06/09/10

In an attempt to impeach a witness named Fulmore, a prosecution investigator downloaded a photograph from Fulmore's MySpace site on the Internet. Nobody was able to authenticate the photograph. Nor did any expert testify that the photograph was not a composite or fake, something which is even more critical in modern times than it used to be, given modern technology. However, in this case, it was harmless error. A roster of Crips gang was also printed out from the Internet. There is insufficient evidence to show that it actually was a roster, and it was therefore not authenticated. Once again, this was harmless error.

People v Wilkinson 

Cal Court of Appeal
06/09/10

Wilkinson was found to be mentally retarded. She argues that her commitment should be reversed, because her attorney waived her personal appearance at trial over her objections. She had a right to be there. The case is reversed for a new hearing.

Prison Legal News v Schwarzenegger

Ninth Circuit
06/09/10

PLN alleged that California state prisons were illegally refusing to deliver its product in certain prison units. The two parties settled. Suit was filed and then dismissed, with the court retaining jurisdiction to monitor the settlement. PLN sought attorney fees, and the request included fees for monitoring the state prison systems compliance with the settlement. That was a legitimate component of attorney fees.

In re Southern California Sunbelt Developers

Ninth Circuit
06/09/10

Thirteen companies controlled by Grammer and Tedder filed an involuntary bankruptcy action against two debtors. The debtors obtained dismissal of the actions. The court properly awarded attorney fees, costs, and punitive damages against the petitioning entities, as well as individually against Grammer and Tedder, who controlled the entities. That award properly included attorney fees incurred for seeking attorney fees.

People v Weber

Cal Court of Appeal
06/07/10

Webber asked to appear pro per, and the judge held a Faretta hearing. Weber continuously interrupted the judge's Faretta warnings with frivolous objections. It appears he was deliberately attempting to create reversible error, and now seeks to reverse the conviction on the basis that he did not get adequate Faretta warnings. His appeal was denied.

Lahiri v Universal Music

Ninth Circuit
06/07/10

Plaintiff first pursued a copyright infringement action against the defendant for five years. The trial court found it to be frivolous, and among other things, awarded defendants $247,000 in attorney fees against plaintiff's attorney. There is no showing of an abuse of discretion. The court did not have to address what the proper legal standard of proof should be, because there was indeed clear and convincing evidence of bad faith in this case. Evidence of bad faith included: wrongful characterization of an agreement between two of the parties; wrongful description of a case from the Supreme Court of India that was published in English; and amending a complaint to contrive a cause of action after the US Supreme Court clarified the law while the case was pending. Also bad faith was retention of the judge's former law firm to defend against the sanction motion, then attempting to disqualify the judge based on that retention.

Scalzo v American Express

Cal Court of Appeal
Filed 5/28/10

Martin Scalzo persuaded American Express to release Fredrick Scalzo's credit card information to Martin. Martin turned the information over to attorney Baker. Martin and Baker than utilized the information in this litigation and in other unrelated litigation. Fredrick sues them for illegal use of the information. They filed an anti SLAPP motion. The motion filed by Martin is denied. He used illegal means to obtain information, and there is a likely cause of action against him that will prevail. The anti SLAPP motion filed by attorney Baker is granted, because there is no evidence that he did anything illegal. He is protected by the litigation privilege, since he apparently only used the information for litigation purposes and did nothing illegal.

Lucky United v Lee

Cal Court of Appeal
Filed 5/28/10

Lucky sued attorney Lee for malicious prosecution. Lee filed an anti SLAPP motion and won. He also secured an award of attorney fees and costs. Lucky made a payment, and the parties disagree over whether it was sufficient to pay Lee's judgment along with costs and fees. The amount was actually insufficient. Given the interplay of the technical statutes on enforcement of judgments, and the anti SLAPP statutes, Lee was entitled to additional attorney fees and costs, and Lucky was not entitled to a satisfaction of judgment filing.

Barragan v County of Los Angeles

Cal Court of Appeal
Filed 5/25/10

Barragan filed a late claim against the county and was denied. The court should have found excusable neglect, because she was physically unable to contact counsel during the period in question. She was in an accident that rendered her quadriplegic, was hospitalized for three months, and was bed ridden for the subsequent seven months.

Grove v Wells Fargo

9th Circuit
Filed 5/20/10

Grove prevailed against Wells Fargo in a fair credit reporting act case. He applied for attorney fees. As part of attorney fees, he should have been awarded non-taxable costs that attorneys customarily charge private clients with. That would include such expenses as paralegals and travel expense, among others.

Lockton v O'Rourke et al

Cal Court of Appeal
Filed 5/20/10

Statute of Limitations in a legal malpractice action is not tolled when attorneys continue to represent client in other matters, and when client acknowledged in a prior verified complaint that defendant attorneys refused to bring suit against certain defendants and told client to get other counsel to represent those defendants in a different jurisdiction.  

Attorneys’ fees may be awarded to a law firm representing itself in a legal malpractice case where reciprocal fee clause specifically so states.

Simpson Strongtie v Gore

Cal Supreme Court
Filed 5/17/10

The Gore Law Firm advertised for clients to make claims against Simpson. Simpson sued the law firm for defamation. Gore filed a SLAPP motion. Simpson claimed that the advertisement constituted a representation of fact about Simpson's business, and therefore was exempt from the SLAPP motion under CCP 425.17(c). To the contrary, this was an advertisement for legal services and does not constitute a representation one way or the other about Simpson.

Laclette v Galindo

Cal Court of Appeal
Filed 5/17/10

Galindo represented Laclette and her employer Elite in a lawsuit that settled for $350,000. Elite paid one half of it. Laclette was paying the other half in installments. More than one year after the settlement, Laclette sued Galindo for malpractice. Held, whether there was continuing representation for purposes of the statute of limitations is a question of fact, and not something that can be determined on summary judgment.

Hernandez v Tanninen

9th Circuit
Filed 5/12/10

Opposing a motion for summary judgment, Hernandez disclosed conversations with his former attorney Ferguson in turn with respect to communications with Tanninen. The district court ruled that such disclosure constituted a waiver of all communications between Ferguson and Hernandez. That order was overbroad.  The declaration only waived the attorney client privilege and attorney work product privilege with respect to communications about Tanninen.

Ron Burns Company v Moore 

Cal Court of Appeal
Filed 5/11/10

Plaintiff filed a late motion to extend time to move for attorney fees. His delay was excusable neglect, because the defense counsel stipulated to the extension . "Admittedly, the law frowns on an attorney's neglect to comply with a clear rule. However, it positively glowers at another attorney's exploitation of such neglect as an excuse to break his word."

People v Douang Panya

Cal Court of Appeal
Filed 5/11/10

There was no ineffective assistance of counsel by permitting the defendant to testify, knowing the judge would then rule that his prior crime would be offered into evidence and defined as moral turpitude.

Gutierrez v G&M Oil

Cal Court of Appeal
Filed 5/7/10

An in house attorney comes within the mandatory relief from default provision of CCP 473. It does not matter that the attorney was also "vice president" of the company.

Yassin v Solis

Cal Court of Appeal
Filed 5/6/10

Yassin is a licensed contractor who did work for Solis. Solis refused to make the final payment, alleging defective workmanship. In the lawsuit, Solis was awarded $50,000 in damages for defective workmanship. The last payment is not a "retention" under civil code 3260.1, and therefore Solis is not entitled to attorney fees.

Porter v Winter

9th Circuit
Filed 5/5/10

Porter obtained a civil order from the EEOC that the Navy wrongfully fired him in violation of Title VII of the Civil Rights Act. The EEOC granted him a small attorney fee award and he filed suit in District Court. Held, the District Court has jurisdiction to review the fee award.

Rouse v Clark

9th Circuit
Filed 5/3/10

Defendants on a verdict against Plaintiffs in a fair debt collection practices act case. They then sought attorney fees. There was no evidence of bad faith or harassment, and therefore Defendants are not entitled to attorney fees.

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CASES PENDING IN CALIFORNIA SUPREME COURT

People v Carranco

Cert 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

Cert 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?

Simpson v Gore

Oral Argument 04/06/10

Does CCP 425.17(c), exempt from anti-SLAPP protection, an advertisement by a lawyer soliciting clients for a contemplated lawsuit?

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.

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?

Cassell v Superior Court

Petition Granted 2/1/10

Are private conversations of an attorney and client for the purposes of mediation entitled to confidentiality through the Mediation Confidentiality Act?

People v Johnson

Review granted 11/17/08

Is a certificate of probable cause required to claim ineffective assistance of counsel, when the claim is based on failure to assist a client file a motion to withdraw a plea?

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CASES PENDING IN THE U.S. SUPREME COURT

Harrington v Richter

Cert granted 02/22/10

Was it ineffective assistance of counsel because counsel relied on cross-examination to create reasonable doubt about the defendant's guilt rather than expert-opinion testimony?

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

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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