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Current and pending cases in various courts that may affect you or your client.

RECENT APPELLATE CASES

County of LA v. Superior Ct. (ACLU)

Cal Supreme Court
Filed: 12/29/16

The ACLU submitted a Public Records Act request to the LA County Board of Supervisors, seeking invoices detailing the amount of money billed by outside law firms in nine cases filed against the LA Sheriff's Department. The cases alleged excessive force against inmates housed in the LA County jail system. The County agreed to produce copies of invoices for three cases that were not pending. However, it refused to comply with the CPRA request for the other six. The Superior Court issued a writ of mandate for all nine. The Court of Appeal ruled that all nine were privileged under Ev C 952.

The Supreme Court granted review. It held that invoices for legal services sent to a government agency are not categorically protected by the attorney-client privilege and therefore exempt from disclosure under the CPRA. The attorney client privilege protects those communications that bear some relationship to the attorney's provision of legal services, but only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose. This latter category includes any invoice that reflects work in ongoing litigation, but not closed cases. Thus, the ACLU is entitled to see the bills on the closed three cases.

Tag: Attorney-client privilege

Kahn v Shim

Cal Court of Appeal
Filed 12/29/16

Dr. Khan bought the dental practice of Shim's late wife. The contract had an attorney fee clause. Dr. Khan sued Shim. Dr. Khan dismissed the complaint.  Shim sought attorney fees. The dismissal of the complaint eliminated Shim's claim for attorney fees on the contract action. However, the clause was broad enough to permit the court to award him attorney fees on the tort action, after declaring him to be the prevailing party.

Tag: Court award of attorney fees

Navigators Specialty Insurance Co. v. Moorefield Construction Inc.

Cal Court of Appeal
Filed: 12/27/16

The Navigators insurance policy covered Moorefield for accidents. Navigators paid out $1,000,000 in the litigation against Moorefield before obtaining a ruling that it did not have to pay for Moorefield's intentional act. But Navigators did have to pay costs for the litigation under a different clause in the insurance contract. Those costs included attorney fees. The case is remanded for a trial on the allocation between the two amounts, which Moorefield will have to reimburse Navigators.

Tag: Court award of attorney fees

Sagonowsky v. Kekoa

Cal Court of Appeal
Filed: 12/21/16

Dissolution of marriage, resulting in a decree that Ms. Sagonowsky was awarded 7 parcels of community property and Mr. Kekoa was awarded two. She appealed, did not file a brief, and thus judgment became final. She refused to lift a lis pendens on his two parcels, kept him from moving into one, interfered with the sale of other properties, filed a federal action, falsely claimed disability. Her conduct warrants sanctions under Fam C 271. The court award for property value loss and punitive damages was improper under that section, and should not have been awarded since no sanctions were sought under CCP 128.5.

Tag: Court award of attorney fees

In Re FAITALIA

9th Circuit Bankruptcy Appellate Panel
Filed 12/06/16

Faitalia, the homeowners/debtors were successful in stripping an HOA lien in their Chapter 13 confirmation plan. The Bankruptcy court awarded attorney fees under the Hawaii HOA statute. Reversed. The local HOA statute does not include litigation over liens or property valuation. Nor does the federal Chapter 13 statute apply, since it does not include lien stripping cases for court awards.

Tag: Court award of attorney fees

FOXEN V. CARPENTER

Cal Court of Appeals (Filed 11/03/16)
Published: 12/01/16

Foxen retained the Carpenter firm to represent her in an auto accident case. The case settled in February 2011. During the 2011 personal injury trial, the accident defendants offered to settle for 5 million. Carpenter counseled Foxen to reject the offer. The jury returned a verdict of 2.3 million. After the verdict, Carpenter filed for a loss of consortium on behalf of Foxen's husband. The personal injury defendants settled out of court for a combined 3 million for both actions in February of 2011. She sued in 2014, alleging overbilling. The Court upheld a demurrer on the grounds that the statute of limitations had expired. The general statute of limitations is 1 year, CCP 340.6. Actions for actual fraud against an attorney are governed by a three-year statute of limitations. See CCP 338(d). Foxen's Bus & Prof 17200 claim for unfair business practices that arose out of alleged violations of the Rules of Professional Conduct was also governed by the specific one-year statute of limitations of §340.6(a) rather than the general four-year statute of Bus & Prof 17208.

Tag: Statute of limitations

Strickland v. U.S. Trustee (In Re Wojcik)

Bankruptcy Appellate Panel

Filed: 11/30/16

Strickland, who is not an attorney and does not have a law degree, is a bankruptcy petition preparer (BPP) in Las Vegas, where since 2009 she owns and operates "Low Cost Paralegal Services", a document preparation service. Wojcik, a Chapter 7 debtor, paid Strickland to assist her in filling out her Chapter 7 petition. The Bankruptcy Court ordered Strickland to disgorge her fee and imposed damages of $2,000, and fined her $500 under §110 of the U.S. Bankruptcy Code. The plain language of §110 prohibits the use of the word "legal" in an advertisement by a non-attorney BPP, and that includes the word "paralegal".

Tag: Unauthorized Practice of Law

People v. Ramos

Cal Court of Appeal
Filed: 11/25/16

Defendant Ramos was charged with making criminal threats against Garcia. The Court granted Ramos's Faretta motion to represent himself. Ramos made several attempts to delay the trial, and the judge threatened to remove him from the courtroom. During the DA's opening statement, Ramos stated that he wasn't having a fair trial and needed an attorney. The Judge removed him. The DA completed her opening statement and performed the direct exam of Garcia before letting Ramos back into the courtroom. Conviction reversed. Denial of counsel during testimony of a key witness is a per se violation of the Sixth Amendment requiring reversal without analysis for prejudice or harmless error.

Tag: 6th Amendment right to counsel

Gee v Greyhound

Cal Court of Appeal
Filed: 11/21/16

Gee a filed a civil complaint in Sacramento Superior Court. The court granted Greyhound's motion to change venue to Fresno and ordered Gee to pay the transfer fees, but Gee did not pay the fees. The court granted Greyhound's motion to dismiss the complaint based on Gee's failure to pay the transfer fees.Gee filed a motion to set aside the judgment of dismissal, under CCP 473 (b), due to attorney mistake. Gee's attorney stated that he understood the law required that moving party had to pay the fees. Motion granted.

Tag: CCP § 473 relief from default

Millview County Water District v State Water Resources Control Board

Cal Court of Appeal
Filed: 11/13/16

Millview successfully sued the State Water Resources Control Board to set aside an order that took away its water rights. Held, the victory does not merit private attorney general fees (PAGA) because there was no public benefit that transcended Millview's recovery.

Tag: PAGA, CCP 1021.5

Matter of Murray

Review Department, State Bar Court,
Filed: 11/10/16

Deputy DA provides defense with an altered transcript of police interview with defendant. Court rejects claim that it was a prank, increases recommended level of discipline to one-year actual suspension. Court also finds that the behavior was intentional. The intentional behavior was part of the disciplinary offense, so it cannot also be used as a factor in aggravation.

Tag: Prosecutor Misconduct
Tag: Level of Discipline

In Re Bundy; Bundy v District Court of Nevada

Ninth Circuit
Filed: 10/28/16

Attorney Klayman was denied pro hac vice status. Denial upheld. He failed to describe accurately, a pending ethics proceeding in another jurisdiction; he disclosed two Courts that barred him from future pro hac vice cases, but failed to disclose numerous cases where he was denied or sanctioned. He has a habit of suing judges who deny his pro hac vice applications.

Tag: Pro Hac Vice

Walker v Apple Inc

Cal Court of Appeal
Filed: 10/28/16

Plaintiff's attorney has a conflict of interest between this putative class and a certified class in the Felczer case. Felczer includes a subclass of non-exempt employees who were not paid termination pay or accurate wage statements on a timely basis. Walker makes similar allegations, but limited to Apple's store in Carlsbad. Apple disputes that it has a policy of doing so, but that some of its store managers may not have executed the policy properly, specifically identifying Ms. Karn of the Carlsbad store. Karn used to be a non-exempt employee and is thus a member of the Felczer class. Thus plaintiff's attorney in Walker would be conducting an adverse cross-examination of her, thus disqualification from this case.

Tag: Disqualification
Tag: Class action

Contreras v Dowling

Cal Court of Appeal
Filed: 10/26/16

Contreras sued her landlord and former attorneys, alleging illegal entry to her apartment. When Dowling subbed in, she sued him too for "aiding and abetting." That's not sufficient to demonstrate a cause of action, to evade the litigation privilege, so Dowling's anti-SLAPP motion should have been granted.

Tag: SLAPP

Agricultural Labor Relations Board v Superior Court (Gerawan)

Cal Court of Appeal
Filed: 10/25/16

Under the Public Records Act, Gerawan Farming sought communications between the ALRB and its General Counsel, when General Counsel sought consent from the ALRB to file an injunction proceeding against Gerawan. Gerawan argued that the General Counsel was acting as a prosecutor and thus its communications with the Board could not come under the attorney client privilege. Given the statutory scheme, however, seeking Board authority for an injunction under Labor Code 1160.4, is a private communication between the Board and its attorney and presumptively privileged. There is no due process violation under the principles of Morongo Band. If there are any communications that are discoverable, Gerawan must seek them within the administrative proceeding and not this separate action.

Tag: Attorney client privilege

Humboldt County Adult Protective Services v Superior Court

Cal Court of Appeal
Filed: 10/24/16

APS filed an ex parte request to remove wife as husband's agent for health care decisions. The motion was accompanied by a declaration of an APS nurse that was never admitted into evidence, and which did not disclose the diagnosis of husband's treating physician. Other deficiencies included presenting partial exhibits that omitted material information about husband's medical condition. The motion was granted on Friday the 13th but not served on wife until Monday the 16th. Wife employed counsel and filed opposition papers on March 26th. On March 31st, the County indicated it would be withdrawing its petition. It did so on April 2nd. The trial court found that the County had "reasonable cause" to proceed and denied wife's request for attorney fees. Reasonable cause is based on an objective standard, and that standard was not met here. There was no competent evidence to support the petition. And "information and belief" will not support "reasonable cause." Case remanded for determination of reasonable attorney fees.

Tag: Court award of attorney fees

Sunearth Inc v Sun Earth Solar Power

Ninth Circuit
Filed: 10/24/16

En Banc. A request for attorney fees under the Lanham Act (trademark infringement) should be reviewed like the attorney fee awards under the Patent Act. The court should look at the totality of the circumstances to determine if the case was "exceptional," using a preponderance of the evidence standard.
Tag: Court award of attorney fees

Goglin v BMW

Cal Court of Appeal
Filed: 10/21/16

Goglin sought rescission of an installment purchase of her BMW after discovering it had a history of mechanical failures and even an accident. She refused a settlement offer that required her to waive claims under CCP 1542 (the Song Beverly Act) and a non-disparagement clause. The latter request was unlawful under the statute. The court award of attorney fees is upheld, even though defendant proved that it paid its attorneys at a lower hourly rate.

Tag: Court award of attorney fees

Viscioti v Martel (Warden)

Ninth Circuit
Filed: 10/17/16

During post-conviction proceedings, the California Supreme Court found that trial counsel's performance at the penalty phase was ineffective, but that even effective counsel could not have saved Viscioti from the death penalty. Here, he argues IAC based on grounds other than those discussed in the Supreme Court opinion but otherwise not new. Under AEDPA, this court can't review the denial of IAC on that basis, due to the Law of the Case.

Tag: Ineffective Assistance of Counsel

California Public Records Research v County of Yolo

Cal Court of Appeal
Filed: 10/14/16

CPRR alleges that Yolo County overcharges for making copies of public records. After suit was filed, Yolo reduced the rates it charged for copies. CPRR now seeks attorney fees under PAGA, CCP 1021.5. Alas, CPRR did not change the methodology used by the County, so it gets no attorney fees.

Tag: Court award of attorney fees

Verio Healthcare v Superior Court

Cal Court of Appeal
Filed: 10/12/16

Three employees left SG Homecare to set up Verio Healthcare. SG sued them with allegations of misuse of trade secrets. Verio filed a motion to disqualify SG's law firm. Verio moved for a continuance of the litigation under CCP 595 and 1054.1 because the lead attorney is a member of the California Legislature. Those sections have to be interpreted as discretionary; otherwise they violate the separation of powers. Continuance denied.

Tag: Attorney Disqualification

People v Booth

Cal Court of Appeal
Filed: 10/12/16

After a shooting in 1992, 4 gangbanger suspects emerged. There was some vague evidence against Booth, but the witness Bradford insisted that Booth was not present. The investigation was dormant until 2009, when one of the other gangbangers identified Booth as the shooter and the Timmis brothers as participants. Inexplicably, that attorney rushed the case to trial, so that his investigator did not have the necessary time to track down Bradford. Also inexplicably, counsel did not file a motion to dismiss based on pre-charging delay. Thus, IAC and thus the conviction should be set aside. Keep mind that habeas corpus is an equitable remedy, so instead of a dismissal, the case is sent back for a new trial, where the taped interview of Bradford can be played in evidence.

Tag: Ineffective Assistance of Counsel

GoTek Energy Corp v SoCal IP Law Group

Cal Court of Appeal
Filed: 10/12/16

GoTek made malpractice claim against SoCal on November 5, 2012. SoCal replied with a letter on November 7, withdrawing from all GoTek client matters, and performed no further work for GoTek. On November 8th, GoTek told SoCal which new law firm to send files to. Files were sent on November 15th. The Court held that the attorney client relationship ended either on November 7 or 8, 2012. Thus, the malpractice suit filed on November 13, 2013 was too late.

Tag: Malpractice Statute of Limitations

Hjelm v Prometheus

Cal Court of Appeal
Filed: 10/05/16

Hjelm won a suit against his landlord because the apartment was uninhabitable. The lease had one-sided attorney fee clauses in favor of the landlord. The suit sounded in both contract and tort, so the tenant is thus entitled to attorney fees. The trial judge's finding of reasonable attorney fees is upheld. The trial judge properly exercised discretion in not apportioning those fees between contract and tort causes of action.

Tag: Court award of attorney fees

Wertheim v Omidvar

Cal Court of Appeal
Filed: 09/29/16

Judgment debtor appealed the judgment but did not post a bond. Judgment creditor sought moneys from third parties who filed interpleaders and were awarded attorney fees. Judgment was then reversed, and judgment debtor sought reimbursement for attorney fees. Denied. The interpleader was caused by JD's refusal to post a bond, so judge had discretion to deny the attorney fees.

Tag: Court award of attorney fees

Walker v Apple

Cal Court of Appeal
Filed: 09/28/16

Attorneys for putative class in this matter are also attorneys for a certified class in Felczer v Apple. This case alleges failure to provide terminated employees with a final wage statement. Apple contends that the failure was local to one store, where employee Karn was responsible; Walker contends the practice is company wide. It turns out that Karn is also a member of the Felczer class. DQ is not based solely on her membership in the class, but due to her identity being known and due to her likely role in the present case. While loyalty conflicts might not cause DQ in all cases, it is proper to apply it here.

Tag: Disqualification

City of San Diego v San Diegans for Open Government

Cal Court of Appeal
Filed: 09/22/16

City filed a tax validation action. SDOG filed a response while it's corporate status was suspended. By the time it revived its corporate status, the time to file a response had expired. Suspension of corporate status can be cured for procedural issues but not substantive ones. The time to respond is a statute of limitations and thus substantive. Thus, SDOG, a prevailing party, may not collect attorney fees under PAGA, CCP 1021.5.

Tag: Court award of attorney fees.

Note: as of 12/05/16 a request for review and a request for depublication are pending in Cal Supreme Court case # S238140.

JEFM vs. Lynch

Ninth Circuit
Filed: 09/20/16

Several minors are in administrative removal proceedings subject to federal immigration law. They seek Court appointed counsel. This Court cannot grant relief in this interlocutory appeal, since it only has jurisdiction over immigration claims under 8 USC 1252 after all administrative remedies are exhausted and a final order of removal is made.

Tag: Right to counsel

Matter of Hansen

State Bar Court Review Department
Filed: 09/14/16

Hansen made several misrepresentations to the WCAB, essentially avoiding disclosure of her own mistakes while seeking relief from the board. This might be disbarment case, since it's a third offense. However, the misconduct occurred before the other two cases, so she will be suspended for 18 months instead.

Tag: Misrepresentation

Draper v Rosario

Ninth Circuit
Filed: 09/07/16

In a civil rights case, the government attorney argued that the defendant prison guards would risk their jobs and careers by lying, while the plaintiff prisoner had nothing to worry about. This was improper vouching for a witness by defense counsel. As a matter of first impression, the panel applies the rule against vouching to civil cases as well as criminal cases. Since the plaintiff's attorney did not object to the argument, the court applies the plain error rule. The failure of the Court to the argument was not plain error, since, well, this is the case of first impression.

Tag: Closing argument

In Re Castellino Villas

Ninth Circuit
Filed: 09/06/16

The Castellino Company defaulted on a debt to Picerne Constructions. Picerne won the arbitration and Castellino filed Chapter 11. The BK court lifted the automatic stay so Picerne and the lender could fight over who had a superior lien. Picerne and Castellino entered into a settlement, which led to approval of Castellino's plan of reorganization. The settlement reserved the issue of whether the prevailing party could seek an award of attorney fees. The claim for attorney fees is fairly within the claim that existed pre-petition and was thus discharged by the approved plan. The continued litigation was not "new litigation."

Tag: Court award of attorney fees

Hiken v U.S. Dept of Defense

Ninth Circuit
Filed: 09/06/16

Hiken prevailed on an FOIA dispute and is entitled to attorney fees. Hiken presented evidence of market rates for the period during the dispute, but sought present hourly rates. The Judge relied on two local district court cases to establish a rate of $200/hr. The Judge did not evaluate the evidence of market rates because the attorneys only argued for current rates. Wrong; the Judge has to evaluate the evidence. The Judge used two local District Court cases to establish $200/hr. Wrong. Those cases applied market rates from several years ago. And BTW, regardless of the outcome of this case on remand, Hiken is entitled to attorney's fees for this appeal.

Tag: Court Award of Attorney fees.

Minick v City of Petaluma

Cal Court of Appeal
Filed: 09/02/16

Minick's opposition to MSJ was so poorly written that the trial judge wondered out loud if there was something wrong, and in its order granting MSJ, referred to some of the arguments as ludicrous. The Court of Appeal described them as "an unintelligible mess." Several weeks later, new counsel submitted a motion to set aside the ruling under the attorney fault section of CCP 473(b). Former counsel described in detail the medical issues and treatment that led to his cognitive impairment, along with his failure to recognize that cognitive impairment. The courts should not apply the same test to attorney fault under CCP 473(b) that it does to defaults under CCP 473, thus following Potts and disregarding Garcia.

Tag: Relief from default

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CASES PENDING IN CALIFORNIA SUPREME COURT

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Barry v State Bar

Oral argument: 11/02/16

Trial Court granted State Bar's anti SLAPP motion when Barry sought Superior Court intervention in a disciplinary case. Trial Court ruled that it had no jurisdiction to grant the relief requested, then held it thus had no jurisdiction to award attorney fees for granting the motion.

Heller Ehrman v Davis Wright

Review Granted: 08/31/16

What interest does a dissolved law firm have in fees for legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis?

Lafitte v. Robert Half

Oral argument: 05/27/16

Can a trial court to anchor its calculation of a reasonable attorney’s fees award in a class action on a percentage of the common fund recovered?

Sheppard Mullin v J-M Manufacturing

Review Granted: 4/27/16

The Court will review the test for advance conflict waivers with sophisticated clients; whether all conflicts of interest should result in automatic fee disgorgement; and whether conflicts of interest should be an automatic defense to a claim for attorney fees. Jerome Fishkin is co-author of an amicus brief proposing that there not be any automatic disgorgement or fee forfeiture, and that the Supreme Court articulate standards for disgorgement or fee forfeiture. The brief was filed on behalf of the Association of Discipline Defense Counsel (ADDC)

DisputeSuite v Scoreinc

Fully Briefed: 3/24/16

Were defendants entitled to attorney fees under Civil Code section 1717 as the prevailing parties in an action on a contract, when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause?

Mountain Air Enterprises v. Sundowner Towers

Review Granted: 03/18/15

Does the term "action" or "proceeding" in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense?

Parrish v Latham & Watkins

Review granted: 10/16/15

Parrish lost on summary judgment but won at trial. He now sues opposing counsel for malicious prosecution. The question is, does the loss of the MSJ establish probable cause as a matter of law.
TAG: Malicious prosecution

Hayward v Superior Court (Osuch RPI)

Review Granted: 11/09/16

Temporary Judge did not reply to objections based on actual bias, and was thus removed from a two year old case. Were actions by that temporary Judge void or voidable?

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OTHER NOTABLE MATTERS

New CCP 2034.415, effective January 1, 2017, requires an expert to lodge relevant materials 3 days before his deposition.

Before filing a demurrer, the demurring party has to meet and confer with the opposing counsel and identify deficiencies. CCP 430-41. The complaint may be amended until the date for filing an opposition has passed. CCP 472(a).

A party’s qualified denial of RFA’s is not admissible. This is a case of first impression. Gonsalves v Li, 232 Cal. App. 4th 1406.

A dispute between a party and a subpoenaed third party witness is subject to meet and confer, and thus sanctions, under CCP 1987.2. Evilsizor v Sweeney 230 Cal App 4th 1304

Rule 9.4 of the California Rules of Court now adds to the attorney oath, "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity."

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