USA v Capener
9th Circuit
Filed 1-8-10
After Capener was acquitted of criminal charges, he filed a motion for attorney fees under the 18 USC 3006A. The trial court made a partial award. Reversed. Although the government could have found some exonerating evidence if it investigated further, there was no notice to the government that further investigation was needed. This is not frivolous or vexation behavior necessary to support an award under 18 USC 3006A.
People v Orozco
Cal Court of Appeal
Filed 1-8-10
In his plea bargain, Orozco signed a supplemental waiver of the right to bring a motion to withdraw his plea. A valid waiver cannot apply to ineffective assistance of counsel in entering the plea or signing the waiver itself.
Priceline.com v City of Anaheim
Cal Court of Appeal
Filed 1-7-10
Anaheim retained private counsel on a contingency contract to recover hotel taxes from Priceline. The contract does not violate Clancy. The City Attorney is cocounsel and acts as supervisory counsel to the private counsel.
Polanski v Superior Court
Cal Court of Appeal
Filed 12/21/09
Roman Polanski pled guilty to one count of unlawful sexual intercourse with a 13-year-old girl. According to the trial judge, the prosecutor, and the defense attorney, there were unreported proceedings about sending Polanski to state prison at Chino for a 60-day sex offender study. The prosecutor and the defense attorney both declare that the judge promised that would be the only jail time Polanski would actually undergo. The judge denies that he made any promises. After reading the report, the judge indicated he was going to sentence Polanski to state prison. Polanski then fled the country. In 2008, another deputy district attorney claimed that he had several private conversations with the trial judge about the Polanski case, and had told neither the trial deputy nor defense counsel about them. Polanski remains a fugitive from justice. Therefore the court has discretion, but not the mandate, to hear his allegations of prosecutor and judicial misconduct without his returning to the country. Under the fugitive disentitlement doctrine, this power is discretionary and not mandatory. It appears that the trial court has not abused its discretion in refusing to hear these matters until Polanski comes back to the country. Among the reasons are failure of Polanski to seek remedies when most of the misconduct was known in 1978, and Polanski's turning down an offer by another trial judge to release him on bail immediately upon presenting himself to the trial court.
Hamazaspyan v Holder
Ninth Circuit
Filed 12/21/09
The immigration court served Hamazaspyan with a notice of hearing but did not serve his attorney of record. Therefore, inadequate notice was given and the deportation order should have been rescinded.
Blue Cross v Superior Court
Cal Court of Appeal
Filed 12/15/09
The city attorney brought a lawsuit against BlueCross alleging unfair competition and false advertising, based upon the way BlueCross and its subsidiaries signed up and then cancelled coverage. This case holds that the city attorney has standing to bring such an action.
Cox v Ayers
Ninth Circuit
Filed 12/10/09
Cox was convicted of murder. He was shackled during trial due to two reports that he intended to escape. That was a legitimate reason to shackle him, so there is no due process violation either during the guilt phase or the penalty phase. Furthermore, the facts of this crime make it highly unlikely that the jury would have come to a different conclusion if he had been unshackled.
Pinholster v Ayers
Ninth Circuit
Filed 12/9/09
Pinholster was convicted of two murders and sentenced to death. The defense counsel billed approximately 7 hours in preparation for the penalty phase, interviewing a psychiatrist who opined that Pinholster was normal. Pinholster's mother was his sole witness at trial, indicating that he had been somewhat of a wild child but otherwise was a decent kid. During the habeas corpus investigation, it turned out that Pinholster had suffered more than one brain injury as a child, had been diagnosed with organic brain disorders, was repeatedly beaten by both his grandmother and his stepfather while growing up. Therefore, counsel was ineffective and the case is sent back for a new sentencing hearing.
Mohawk Industries v Carpenter
US Supreme Court
Filed 12/8/09
The court ordered Mohawk to grant Carpenter access to information concerning his meeting with Mohawk's attorney prior to being fired in this wrongful termination suit. Held: a discovery order that implicates the attorney-client privilege can be adequately reviewed on appeal and is therefore not subject to interlocutory review. Note that this is a federal rule, and the rule is different in California state court.
People v Ervine
Cal Supreme Court
Filed 12/7/09
While Ervine was being prosecuted, deputy sheriffs searched his cell and apparently read attorney-client materials. The evidence indicates that the deputies did not communicate with the prosecution about the content of the documents. Therefore, although the conduct was wrong, it does not result in dismissal of the indictment.
Prediwave Corp v Simpson Thatcher
Cal Court of Appeal
Filed 12/2/09
Simpson Thatcher is a law firm that represented Prediwave and its former CEO, Qu. The lawsuit alleges that Qu looted Prediwave, and that the looting occurred when Simpson Thatcher represented both of them, and that therefore Simpson Thatcher has committed malpractice. This malpractice case is not the proper case for a SLAPP motion. The suit is not brought primarily to chill the exercise of constitutional rights.
Porter v McCollum
US Supreme Court
Filed 11/30/09
The murder conviction is reversed in part because Porter's trial attorney did not offer evidence of the severe personality changes that Porter underwent during the Korean War as a combat soldier. It was therefore ineffective assistance of counsel.
Costco v Superior Court
Cal Supreme Court
Filed 11/30/09
Costco asked for legal advice regarding its compliance with California overtime law. It received a written report. The trial court ordered a referee to read the letter, redact out the privileged portions, and leave in the unprivileged portions. This violated Ev C 915(a), which prohibits the court from actually reading privileged materials. The party claiming the privilege has to first establish that communication is privileged. Without waiving the privilege, however, it may voluntarily submit the document for an en camera inspection. However, the court may not otherwise order it.
Standard Microsystems v Winbond Electronics
Cal Court of Appeal
Filed 11/24/09
Plaintiff served defendant by registered mail in Taiwan and Israel. Such service is effective under CCP 415.40. Defendant's attorney advised both clients that the service by mail was ineffective. This is the kind of attorney fault under CCP 473(b) that mandates setting aside the default.
Legal Aid of Oregon v US Legal Services Corp
Ninth Circuit
Filed 11/23/09
In Legal Aid Society of Hawaii the Ninth Circuit upheld the federal ban on legal services programs participating in class actions or receiving court award of attorney fees. The decision was not abrogated by the US Supreme Court in Velazquez, and therefore the restrictions are upheld.
Howell v Hamilton Meats
Cal Court of Appeal
Filed 11/23/09
Howell was injured in an auto accident. Her medical bills came to $190,000. Her medical providers accepted $60,000 as full payment from Howell's medical insurance. The proper measure of damages in this situation is the amount of the bill, not the amount that the carrier paid. This is because under the collateral source rule, the defendant is not permitted to reduce damages by the amount of plaintiff's insurance. The measure of damage is the reasonable value of medical care received.
Hanif does not apply in this situation because Hanif Hanif involved public Medicare payments, not private insurance. Nishihama followed Hanif without considering the difference between public and private health care. The Howell court disagrees with Nishihama.
People v Johnson
Cal Supreme Court
Filed 11/23/09
If a defendant wants to appeal from a criminal judgment after a guilty or no contest plea, and the appeal is based on ineffective assistance of counsel, the defendant must first obtain a certificate of probable cause from the trial judge.
People v Reynolds
Cal Court of Appeal
Filed 11/20/09
Reynolds was denied release from prison, based on his continuing status as a sexually violent predator. He appealed. His court appointed counsel acknowledged that there was no basis for the appeal. That is not ineffective assistance of counsel, because there is no apparent evidence to support the petition in the first place.
Barboza v West Coast Digital
Cal Court of Appeal
Filed 11/19/09
Defendant in a class action lawsuit sold all of its assets and indicated that it would be filing bankruptcy. It then stipulated to a default judgment. In seeking court approval for the settlement, counsel sought an order that it would be relieved of further duties after the judgment was entered. Motion denied. Counsel has an obligation to the class to make some effort to collect the judgment. Afterwards it may seek further relief from the court if warranted under future circumstances.
Nilsen v Neilson
BAP Ninth Circuit
Filed 11/16/09
Nilsen was the bankruptcy trustee in the Cedar Funding bankruptcy. While acting as trustee, he made defamatory statements about Neilson, the founder and sole shareholder of Cedar Funding. Neilson sued him. However, the trustee in bankruptcy is carrying out quasi-judicial functions, and therefore has qualified immunity. It also qualified under the California Litigation Privilege because a bankruptcy proceeding is a judicial proceeding within the scope of that privilege.
State of Arizona v Yuen
Cal Court of Appeal
Filed 11/12/09
The State of Arizona obtained a judgment against Yuen in Arizona. It registered the judgment with the clerk of the Superior Court in California and executed on the judgment. Yuen filed a motion to set aside the judgment. The trial court granted the motion on the basis that the attorney who purportedly represented her in the Arizona action had a conflict of interest, that the hearing officer in Arizona was made aware of the conflict, and there is no evidence that Yuen ever signed a conflict waiver or authorized the attorney to appear for her. That is a proper basis on which to refuse to enforce a sister state judgment
Cassel v Wasserman
Cal Court of Appeal
Filed 11/12/09
Cassel sues Wasserman for legal malpractice. In the underlying case, Cassel accepted 1.25 million dollars in settlement from the opposing party. During the mediation, Cassel and attorney Wasserman spoke to one another outside the presence of opposing counsel and outside the presence of the mediator. Therefore, the conversations are not privileged under the mediation privilege and Ev C 1115.
Jackson v Yarbray
Cal Court of Appeal
Filed 11/10/09
Computer XPress sued Jackson after a failed effort to merge their company with his. A portion of that lawsuit was dismissed in a SLAPP motion. The remainder of the lawsuit was lost on summary judgment. In the first case, the trial court awarded $77,000 in attorney fees for the SLAPP motion work. In this case, Jackson prevails on malicious prosecution. He provided evidence that his attorney fees were $300,000 in the first case. Collateral estoppels precludes Jackson from re-litigating the amount awarded for the SLAPP attorney fees. However, the remainder of the attorney fees are not subject to collateral estoppel.
One of the law firms for Computer XPress in the underlying case was Best & Best. This court upholds their verdict against Jackson, because Jackson did not prove that the law firm acted with malice. To do so he would have to prove what he told them, what advice they gave him. None of that appears in the record.
Bobby v vanHook
U.S. Supreme Court
Filed 11/9/09
VanHook's attorneys did not violate the principles of ineffective assistance of counsel, at the time the vanHook case went to trial. Therefore, habeas corpus is denied. VanHook is not entitled to a review based on later established principles.
People v Hernandez
Cal Court of Appeal
Filed 11/9/09
Hernandez was charged with attempted murder, along with Townley, Rocha, Carranco, and Flores. Flores and Rocha pled guilty to lesser charges. As a condition of pleading guilty each had to lodge written declarations. Copies were shown to the attorneys for Townley and Flores, who were ordered not to discuss the contents or existence of the documents with their clients. Defense counsel were not permitted to have copies of them, either. At Townley's trial, Flores was called as a witness. The judge gave Townley's attorney a copy of the statement, with an order not to show it to Townley. Assuming for the sake of argument, that a court may restrict the defendant's ability to consult with counsel about the evidence, the order in this trial was still overbroad. The danger to Flores might require some sort of limiting order, but there was no evidence that any danger to Flores was attributable to Townley.
Cohen v US District Court
Ninth Circuit
Filed 11/5/09
This is a class action lawsuit against NVIDIA under the Private Securities Litigation Reform Act. Seven plaintiffs sought to be lead plaintiff, and a court selected two of them as co-lead plaintiffs. One of them was Cohen. Cohen selected a law firm of Kahn Gauthier as his counsel. The court appointed Girard Gibbs instead, who had been the nominated counsel of one of the other rejected plaintiffs. The court abused its discretion in doing so. Under the act the lead plaintiff selects counsel, not the court. The court's role is to determine if that choice is reasonable. Among the criteria are the sophistication of plaintiff, the criteria plaintiff used to select counsel, the qualifications of that counsel, and evidence that the plaintiff and counsel have an arm's length relationship. This case is, therefore, remanded for a new hearing on that issue.
Crawford v Astrue
Ninth Circuit
Filed 11/4/09
These are three consolidated appeals on attorney fee awards in Social Security cases, submitted to the Ninth Circuit en banc. Under the Supreme Court's ruling in Gisbrecht, the court reviews the attorney-client fee agreement for reasonableness, then determine if there is any reason to reduce the fee. Under federal law the maximum of a contingency fee in a Social Security appeal is 25%. In each of these three cases, there were contingency fees for 25%, and each attorney charged fees under that 25%. The hearing judge mistakenly applied the lodestar approach, using an hourly rate and then asking whether or not it should be increased. The lodestar rate is proper in fee shifting cases, when the attorney can also collect the remainder under contract with the client. It is not proper in a case like this, where the attorney and client have entered into a fee agreement that has been determined to be reasonable.
People v Katzenberger
Cal Court of Appeal
Filed 11/2/09
In a criminal prosecution the prosecutor argued that reasonable doubt was comparable to an eight-piece puzzle of the Statue of Liberty, that one did not need to see all the pieces to know what it was. This was prosecutor misconduct. First of all, reasonable doubt cannot be quantified. In this case the argument suggested that the jury could convict with 75% of the evidence. Second, the object used is iconic. Most Americans would recognize it long before the eighth piece.
Robinson v Kramer
Ninth Circuit
Filed 11/2/09
In the middle of trial Robinson made a motion to substitute his attorney out and substitute himself in pro per. The motion was denied. After conviction, appeal, and lower court habeas corpus, Robinson changed his argument to the effect that he was denied the right of self representation. Since he waited this late to make the claim, the appellate court will not hear it.
Toal v Tardif
Cal Court of Appeal
Filed 10/30/09
An agreement signed by attorneys for each party, that the parties will stipulate to private arbitration, by itself does not constitute substantial evidence that the parties themselves agree to arbitrate.
Cabral v Martins
Cal Court of Appeal
Filed 8/21/09 (published 9/4/09)
James Cabral owes Tammy Cabral child support. James' mother, Edwina, employed attorney Martins to modify her will, disinheriting James. When the will was submitted for probate, Tammy alleged that the actions of Martins violated the family code section which prohibits aiding and abetting anyone else in evading child support obligations. However, this is a SLAPP case. Actions by an attorney representing a client are generally protected by the SLAPP statute. There is no exception for this alleged conduct.
CASES PENDING IN THE CALIFORNIA SUPREME COURT
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?
People v Sutton
Review Granted 09/03/08
Were defendants' statutory speedy trial rights violated when defense counsel announced ready but that he might be in another trial, and the court continued trial for six days over defendants' personal objection. If so, was the error prejudicial?
Simpson v Gore
Review Granted 06/06/2008
Does CCP 425.17(c), exempt from anti-SLAPP protection, an advertisement by a lawyer soliciting clients for a contemplated lawsuit?
Goodman v Lozano
Review granted 04/15/2008
When a plaintiff settles with one tortfeasor, goes to trial against another, gets an award of damages, but gets no recovery because the award is less than the settlement, who is the prevailing party for purposes of an award of attorney fees and costs under CCP 1032?
Chavez v City Of Los Angeles
Review granted 04/02/2008
Does CCP 1033 permit a trial court to deny Gov C 12965 attorney fees to the prevailing plaintiff in an action under the Fair Employment and Housing Act, if the judgment obtained in a court with jurisdiction over unlimited" civil cases could have been rendered in a court with jurisdiction over limited civil cases?
Conservatorship Of John L., Etc.
Filed 10/10/2007
May a proposed conservatee's attorney, by making an unsworn statement to the court that the person did not wish to be present and did not object to the appointment of a conservator, waive the person's right to be present at the hearing under the Lanterman-Petris-Short Act, although the report of the officer providing conservatorship investigation states that the person did not want a conservator?
CASES PENDING IN THE U.S. SUPREME COURT
Jerman v Carlisle
Argued 1/13/10
In an action for violation of the Fair Debt Collection Practices Act, is a mistake of law allowed as a defense?
Florida v Powell
Argued 12/7/09
The Miranda warning tells arrested people that they have certain rights "at any time". Should this be clarified to add that the rights accrue even during a police interrogation.
Milavetz v US
Argued 12/1/09
A debt relief agency is not permitted to advise people to incur further debt in contemplation of bankruptcy. Milavetz is a law firm which challenges interpretation of the law to include law firms. It also challenges the rule itself as being contrary to the right of free speech under the first amendment.
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.
Padilla v Kentucky
Argued 10/13/09
Padilla entered into a plea bargain, after his attorney told him that his guilty plea would have no effect on his immigration status. The question before the Supreme Court is if that erroneous advice constitutes ineffective assistance of counsel warranting reversal of the conviction under the plea bargain.
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.
Wood v Allen
Argued 11/4/09
In a capital punishment case, the defense attorney did not investigate or present evidence that Mr. Wood had impaired medical conditions. The question before the US Supreme Court is whether that constitutes ineffective assistance of counsel.
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.
Jerman v Carlisle
Cert. granted 6/29/09
If a law firm makes a mistake of law, can it be a bona fide error that amounts to a defense under the federal Fair Debt Collection Practices Act?
Perdue v Kenny
Cert Granted 4/6/09
Under the 1976 Civil Rights Attorneys Fee Award Act, may the court enhance the attorney fee based upon particularly skillful representation?
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?
OTHER NOTABLE MATTERS
Malpractice Disclosure Requirement Comes Back
New California Rule of Professional Conduct 3-410, requires disclosures to clients if an attorney does not carry malpractice insurance. It becomes effective January 1, 2010.
E-mail Address Required
All attorneys must lodge and e-mail address with the State Bar under rule 9.7, California Rules of Court, effective February 1, 2010. It can be a private one.
Proposed Rule Amendment
The Judicial Council is proposing to amend rules 7.101, 7.950, and 7.955 of the Cal. Rules of Court, and to adopt rule 7.950.5 to create statewide rules on awards of attorney fees in cases involving minors and persons with a disability.
Bates v Rubio's Restaurants
Cal Court of Appeal
Filed 11/30/09
After ruling on a post-trial motion, the judge then recused himself. Held: the subsequent recusal does not retroactively invalidate the earlier order, even though they were both contained in the same written minute order.
Schatz v Allen Matkins
California Supreme Court
Filed 1/26/09
Under the MFAA, a client can require an attorney to arbitrate a fee dispute. Unless both parties agree at the time, arbitration is mandatory but not binding. Under the MFAA, the losing side has the right to trial de novo in superior court. The contract between Schatz and Allen Matkins required statutory arbitration instead of trial de novo, after the mandatory MFAA arbitration. This clause is upheld, given the public policy in favor of arbitration.
Williams v Russ
California Court of Appeal
Filed 10/27/08
Williams sued Russ for legal malpractice. Williams then obtained his entire client file by demanding it under rule 3-700(D). Williams then let the file be destroyed. Held: He had a duty to maintain the file, and he had the burden of proving that no prejudice occurred from its destruction.
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