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

RECENT APPELLATE CASES

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

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 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 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

Ibrahim v US Dept. of Homeland Security

Ninth Circuit
Filed: 08/30/16

Under the Equal Access to Justice Act, a court award of attorney fees to the wronged citizen should be based on the totality of the government actions, and not broken down action by action. In short, this ten-year-old case over a person wrongfully placed on the "no-fly" list is returned to the trial judge for another round of hearings on attorney fees

Tag: Court award of attorney fees

Sese v Wells Fargo Bank

Cal Court of Appeal
Ordered Published: 08/18/16

Sese sued Wells Fargo under the California Homeowner Bill of Rights. He obtained an injunction to prevent foreclosure on his home while his case proceeded. Held, while he may be entitled to attorney fees at the end of the case, Civ C 2924.12 does not require an award of interim attorney fees.

Tag: Court award of attorney fees

USA v Harmon

Ninth Circuit
Filed: 08/18/16

During the grand jury proceedings, the prosecutor concealed from the grand jury that witness Ebyam was testifying under an agreement to cooperate in lieu of being indicted on more crimes. By the time of trial, defense counsel knew about the agreement and cross-examined Ebyam about it. Such error in grand jury proceedings is not "structural," so it does not result in automatic reversal.

Tag: Prosecutor misconduct

Laffitte v Robert Half Intl

Cal Supreme Court
Filed: 08/11/16

Trial court awarded class action counsel 1/3 of the settlement fund, rather than the lodestar method. Under the facts of this case, such was a reasonable way to calculate the fees. A lodestar crosscheck is also reasonable.

Tag: Court Award of attorney fees.

Hardy v Chappell

Ninth Circuit
Filed: 08/11/16

Hardy was convicted of murdering Mrs. Morgan and her son. Boyd was a key witness against him. By the time of the Habeas Corpus petition, the evidence began to look like Boyd was guilty but Hardy was not. The California Supreme Court found ineffective assistance of counsel by Hardy's trial attorney, but not ineffective enough to set aside the conviction under AEDPA standards. The CSC held that there was substantial evidence that Hardy was guilty. Wrong standard. The test is whether there was a reasonable probability of doubt as to guilt, absent counsel's errors.

Tag: Ineffective assistance of counsel

Demirdjian v Gipson (Warden)

Ninth Circuit
Filed: 08/10/16

Defense counsel rebutted adverse evidence rather than moving to strike it. Reasonable tactical decision; no reversal under AEDPA standards. 50-year sentence for a juvenile was constitutional since he had a chance for parole.

Tag: Ineffective assistance of counsel

Reis-Campos v Biter (Warden)

Ninth Circuit
Filed: 08/08/16

Defendant shot and killed Fuentes, a member of a rival gang. The D.A. withheld some evidence. Well, there was enough evidence of Fuentes's propensity to violence that a little more low-grade cumulative evidence wouldn't make a difference. Habeas Corpus denied due to deference to trial Judge and the AEDPA standards.

Tag: Brady

Rancho Mirage Country Club HOA v Hazelbaker

Cal Court of Appeal
Filed: 08/08/16

Dispute over condo modifications, settled in mediation. HOA alleges that Hazelbaker failed to comply with the settlement. After suit was filed, Hazelbaker complied. The HOA is thus entitled to attorney fees under Davis-Stirling.

Tag: Court award of attorney fees

Travelers Insurance v Hirsh

Ninth Circuit
Filed: 08/03/16

California's anti-SLAPP statute is substantive and thus applies in this Circuit. Travelers sued its insured's former Cumis counsel for refund of fees, alleging that he should have set off fees previously paid from the settlement of the underlying case. The allegations do not pertain to Hirsh's rights of petition or free speech, and thus are not protected by the anti-SLAPP statute. These actions are post-settlement and thus not protected by the litigation privilege.

Tag: SLAPP Motion

No Toxic Air v Lehigh SW Cement Co

Cal Court of Appeal
Filed: 07/28/16

Lehigh sought a finding by the Santa Clara County Board of Supervisors that it had a right to run a quarry even though the predecessor owner did not obtain all of the requisite use permits. No Toxic Air opposed the petition. The Board granted it anyhow. NTA objects to that portion of costs attributable to attorneys preparing the administrative record, rather than paralegals. The trial court granted NTA's motion; this court reverses. The record shows that the use of attorneys was reasonable, given the complexity of the record, and the fees charged were reasonable.

Tag: Court award of costs

JAMS v Kinsella

Cal Court of Appeal
Filed: 07/27/16

Kinsella agreed to hire retired Judge Sonenshine after reading her biography on the JAMS website. He alleges that the biography was misleading and now sues JAMS and Sonenshine. This is a commercial speech case, so the anti SLAPP procedures cannot be used. SLAPP was not intended to apply to commercial advertising.

Tag: SLAPP Motions

People v Superior Court (Tejeda RPI)

Cal Court of Appeal
Filed: 07/25/16

The DA challenged Judge Goethals under CCP 170.6. The DA's office has been routinely challenging him under CCP 170.6 after adverse rulings in the "Dekraai" case. As a result, there has been a backlog in death penalty cases in Orange County. Nevertheless, under Solberg, there is no prohibition against the DA doing so. Thus the challenge is upheld.

Tag: Prosecutor Discretion

Ayala v Chappell (Warden)

Ninth Circuit
Filed: 07/20/16

This is a habeas corpus petition. Ayala claims ineffective assistance of counsel because his attorneys failed to call certain impeachment witnesses who were gang members. The attorneys had decided to eliminate all evidence that would show Ayala's gang affiliations. In doing so, they reasoned that Ayala would be more likely to be acquitted. That is the sort of tactical decision that does not amount to IAC.

Tag: Ineffective assistance of counsel

Garmon v County of Los Angeles

Ninth Circuit
Filed: 07/05/16

Garmon was an alibi witness at her son's trial. She gave consent for the release to the prosecution of medical records pertaining to her upcoming brain surgery. The DA's office issued a subpoena referring to her as the murder victim and asking for all of her medical records. The mis-statements are not entitled to absolute immunity. She thus has a civil claim.

Tag: Prosecutor misconduct

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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.

County of LA v Superior Court (ACLU, RPI)

Oral argument: 10/09/16

Are attorney bills to clients privileged? If so, does the California Public Records Act required disclosure of unprivileged materials in those bills?

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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