Justia Legal Ethics Opinion Summaries

Articles Posted in California Court of Appeal

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Former counsel moved to withdraw from representing a client, alleging another attorney had agreed to handle (and was already handling) postjudgment motions, and that the other attorney would also handle the appeal of an adverse judgment. The client sued former counsel for malpractice more than one year after the motion to withdraw was made, but less than one year after the motion was granted. The question this case presented for the Court of Appeal's review was whether the trial court properly granted summary judgment to former counsel based on the one-year statute of limitation provided by Code of Civil Procedure section 340.61 on the ground that the client could not have had an objectively reasonable expectation that former counsel was continuing to represent him after the motion to withdraw had been served. The Court concluded the trial court was correct in granting summary judgment. "Once the former counsel told the client, via the motion to withdraw, that the case had already been handed off to another attorney, the client was on notice that former counsel was no longer working for him. . . . because this lawsuit was filed more than one year after that time, no triable issue of fact remains as to the statute of limitation defense." View "Flake v. Neumiller & Beardslee" on Justia Law

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Gonzalez challenged an administrative order declaring that she should be reported to the statewide child abuse index for what was deemed excessive discipline of her 12-year old daughter. She had spanked the girl with a wooden spoon. After she successfully appealed the trial court’s denial of relief, she sought an award of approximately $60,000 in attorney fees incurred to four separate law practices. The trial court awarded $7,500, denying her claim as to all but her current counsel and finding the evidence in support of two other claims technically deficient, although no evidentiary objection had been asserted against them. It denied the third claim on the basis of objections that were only raised when the court permitted the opposing party to file a third opposition memorandum. The court of appeals remanded, stating that the rulings “may have grown out of an understandable frustration with counsel for plaintiff, whose several failings included the belated assertion of arguments and the devotion of considerably more attention to unsound technicalities than to making a bulletproof showing on the merits.” The court stated that complete denial of relief as to three of plaintiff’s four attorneys exceeded the bounds of sound discretion. View "Gonzalez v. Santa Clara County Department of Social Services" on Justia Law

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Plaintiff filed suit against his former employer, WaveFront, for wrongful termination. On appeal, plaintiff challenged the trial court's award of $8,125.00 in attorney fees to WaveFront. The court rejected plaintiff's contention that the trial court's attorney fees award was made without statutory authority and was an abuse of discretion. In this case, the record on appeal did not include any reporter's transcript of either the hearing on plaintiff's motion to withdraw his mistaken admissions or the subsequent hearing at which the trial court ruled on defendant's motion for attorney fees. The court explained that, as the party asserting error, it was plaintiff's burden to supply an adequate record. Other than the portion of the trial court's order that states Code of Civil Procedure section 2033.300, subdivision (c) was the statutory basis of its attorney fees award, the court had no reliable means of assessing the trial court's rationale for awarding fees. Because the court concluded that section 2033.300 does permit, as a general matter, a court to condition relief on the payment of reasonable attorney fees, the remainder of plaintiff's contentions must therefore fail. Accordingly, the court affirmed the attorney fees order. View "Rhule v. WaveFront Technology" on Justia Law

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Acting pro se, Clay Jones sued his former attorney, Alan Whisenand, for legal malpractice and civil rights violations allegedly committed in the course of civil commitment proceedings under the Sexually Violent Predator Act (SVPA). The trial court sustained Whisenand’s demurrer to the first amended complaint without leave to amend on the grounds that: (1) Jones failed to allege actual innocence of all charges in the underlying criminal case or post-conviction exoneration; and (2) Jones failed to show that Whisenand was a “state actor” acting “under color of state law.” After review, the Court of Appeal concluded that the actual innocence requirement did not apply to SVPA proceedings. However, public policy considerations underlying the actual innocence requirement (namely, judicial economy and the desire to avoid conflicting resolutions) compelled the conclusion that alleged SVPs should not be able to pursue causes of action for legal malpractice in the course of their SVPA proceedings unless and until such proceedings have been terminated in their favor. "[O]ur conclusion does not leave alleged SVPs without a remedy while proceedings are ongoing, as they may still seek relief for ineffective assistance of counsel in the SVPA proceedings themselves. Jones does not, and cannot, allege that the pending SVPA proceedings have been terminated in his favor. We therefore conclude the trial court properly sustained Whisenand’s demurrer to Jones’s cause of action for legal malpractice." The SVPA proceedings against Jones were still pending, raising the possibility that he might be able to comply with the favorable termination requirement in the future. Accordingly, the Court concluded the demurrer should have been sustained with leave to amend. With respect to his civil rights claim, the Court concluded the trial court properly sustained the demurrer without leave to amend. View "Jones v. Whisenand" on Justia Law

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Leighton sued Forster for breach of an attorney fee contract and an account stated, seeking damages in excess of $114,000. In granting Forster summary judgment, the trial court found that an engagement letter Leighton emailed to Forster’s husband Bob was not a valid contract because it was never signed (Bus. & Prof. Code, section 6148) and any claim for payment of the reasonable value of Leighton’s services was barred by the two-year statute of limitations (Code Civ. Proc, section 339(1)). The court of appeal affirmed, rejecting an argument that there were triable issues of material fact regarding Rochelle’s liability for the unpaid attorney fees because she produced evidence that, before Bob died, Leighton and Bob negotiated a fee arrangement that either satisfied the requirements of section 6148 or was exempt from those requirements. The absence of a written fee agreement conclusively establishes that Rochelle was entitled to summary judgment. View "Leighton v. Forster" on Justia Law

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Plaintiffs filed suit against defendants, lawyers and their law firms, alleging defamation and other causes of action. The action arose from statements two lawyers made on television and radio programs about a pending lawsuit involving bribery and kickbacks in connection with Pacific Hospital of Long Beach. The court granted defendants' special motion to strike the complaint as a strategic lawsuit against public participation (SLAPP), Code Civ. Proc., 425.16. The court, reviewing de novo, concluded that the action arose out of activity protected under the anti-SLAPP statute. The court also concluded that plaintiffs have not established a probability of success on the merits of their claims because the challenged statements are protected under the fair report privilege. Accordingly, the court affirmed the judgment. View "Healthsmart Pacific v. Kabateck" on Justia Law

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Starski identified himself as a lawyer in a demand letter to a business, claiming that his “client” (Cornett, his mother’s husband) had been injured at the business. The manager was suspicious and contacted authorities, who subsequently staged a pretext call during which Starski identified himself as an attorney. Cornett subsequently stated that he had not been injured at the business, but changed his story again for trial. A search of Starski’s computer uncovered documents revealing that he had been involved in several similar schemes, representing himself as an attorney. He is not a licensed attorney, but described himself as a “freelance paralegal.” After his trial on felony charges of attempted grand theft and conspiracy and a misdemeanor charge of unlawful practice of law (Business and Professions Code section 6126), the judge instructed the jury that section 6126 requires more than simply holding oneself out as an attorney, that “practicing law” entails use of that purported status. Starski and Cornett were convicted. Each was given to probation. The court of appeal affirmed, rejecting arguments of insufficient evidence; that the instructions on section 6126 were “overbroad” because they allowed conviction for what a recent U.S. Supreme Court decision made protected free speech; and that the judge erred by refusing to give Starski’s special instruction on a “claim-of-right” defense to the charges of attempting and conspiring to commit grand theft. View "People v. Starski" on Justia Law

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Dr. Hoang, a dentist, died in 2010. Dr. Khan agreed to buy Hoang’s practice. The contract allows the prevailing party to be awarded fees if “any litigation . . . is commenced . . . concerning its terms, interpretation or enforcement or the rights and duties of any party.” Two years later, Khan filed suit for breach of contract, fraud, concealment, negligent misrepresentation, and rescission. Khan alleged failure to comply with warranties, including that none of the practice records contained any untrue statement or material omission; that the practice was in compliance with laws and regulations; that patients and insurance companies had been properly billed; that the practice had not billed for services for which the practice was not entitled to compensation; that the practice had not, as a usual practice, waived co-payments or deductibles; and the practice had not increased any employee’s salary after April 2010. The estate counter claimed that Khan had failed to remit accounts receivable and to provide proper accounting. Before trial, Khan voluntarily dismissed her entire complaint without prejudice. The court found for Khan on all causes of action in the counter-complaint. The estate obtained an award of attorney fees as the prevailing party under Code of Civil Procedure section 1032(a)(4). The court of appeal remanded. Section 1717(b)(2), generally bars the award of fees after a pretrial voluntary dismissal for defense of contract claims, but the agreement's fee provision was broad enough to cover fees for defense against tort actions. View "Khan v. Shim" on Justia Law

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The parties married in 1992 and divorced in 2005. During their ongoing “litigation war” the court granted husband Family Code section 2711 sanctions of $767,781.23, including: $500,000 for wife’s “relentless and culpable conduct” in “driv[ing] up the cost of the litigation” and “purposefully frustrat[ing]" the settlement; $180,000 for causing a reduction in the sale price of property awarded to husband in the dissolution judgment; and $45,000 in interest on husband’s attorney fees. The court also awarded husband $28,510 in rents and security deposits that wife received on properties awarded to husband in the dissolution judgment. The court of appeal reversed in part. Section 271 sanctions are limited to “attorney’s fees and costs” so the court erred by imposing sanctions for conduct in increasing the cost of the litigation and frustrating settlement and for causing a reduction in the sale price of real property. The court otherwise affirmed, rejecting wife’s arguments that the court erred by granting the rents motion; the court violated the Americans with Disabilities Act (42 U.S.C. 12101) by denying her requests for accommodation and holding a motion hearing in her absence; and that husband was not entitled to attorney fees because he used the services of an attorney who previously represented wife. View "Sagonowsky v. Kekoa" on Justia Law

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Plaintiff filed suit against the former attorneys who had represented her in a personal injury action. Plaintiff alleged eight causes of action arising from alleged misconduct during the course of the parties’ attorney-client relationship. The trial court sustained defendants’ demurrer to plaintiff’s operative first amended complaint on the basis of the statute of limitations. The court concluded that all of plaintiff's causes of action are time-barred as a matter of law. Accordingly, the court affirmed the judgment. View "Foxen v. Carpenter" on Justia Law