Articles Posted in California Court of Appeal

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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

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This case involves a judgment in an interpleader action initiated by Southern California Gas Company against various defendants. After remand, the Gas Co., Andrea L. Murray, and Scott Tepper each filed a motion seeking payment from the interpleader funds on different grounds, and the trial court ultimately granted some portion of the funds sought by each party. Patrick J. Flannery and the Law Offices of Joseph Daneshrad appealed. The court concluded that the interpleader case satisfies the "separate, independent action" requirement for enforcement of an attorney fee lien. The court also concluded that the trial court's factual findings that Tepper withdrew involuntarily and for good cause did not violate due process. Accordingly, the court affirmed the judgment. View "Southern California Gas Co. v. Flannery" on Justia Law

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Hannon, an attorney, represented Barber in litigation against the victim, Barber’s former domestic partner, Dr. Magno. In December 2006, the parties agreed that Barber would fund a college trust for their children. Barber paid $27,500.32 to Hannon as the trustee of the children’s funds and authorized Hannon to open a bank account. In February 2011, the victim became aware that the children’s funds had been misappropriated. Hannon may have used the money to cover legal fees owed by Barber. Charged with grand theft by embezzlement by a fiduciary (Pen. Code 487(a), 506), Hannon ultimately pled no contest to misdemeanor theft by embezzlement. The trial court placed him on probation for two years, ordered him to perform 240 hours of community service, and ordered him to pay $40,800 in restitution to the victim: $25,000 in attorney’s fees, $15,000 in lost wages, and $800 in mileage. The court of appeal rejected challenges to the restitution award and held that the victim was entitled to file a victim impact statement on appeal, pursuant to the Victims’ Bill of Rights Act of 2008 (Marsy’s Law, Proposition 9 (2008)), but may not raise present legal issues not raised by Hannon or facts not in the record below View "People v. Hannon" on Justia Law

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Plaintiffs in this putative class action case, Stacey and Tyler Walker, appealed the trial court's order disqualifying their counsel, Hogue & Belong (the Firm), in this putative class action suit against their former employer, Apple, Inc. The trial court found automatic disqualification was required on the basis the Firm had a conflict of interest arising from its concurrent representation of the putative class in this case and the certified class in another wage-and-hour class action pending against Apple. Specifically, based on the parties' litigation strategies and evidence Apple submitted in support of its disqualification motion, the trial court concluded that to advance the interests of its clients in this case, the Firm would need to cross-examine a client in the Felczer class (the Walkers' store manager) in a manner adverse to that client. After review of plaintiffs' arguments on appeal, the Court of Appeals concluded that the trial court did not err in finding the Firm represented the store manager and that a disqualifying conflict existed between her interests and the Walkers' interests. View "Walker v. Apple, Inc." on Justia Law

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Contreras sued her landlords (Butterworth) and the Butterworths’ former attorneys based on their allegedly illegal entries into Contreras’s apartment. After attorney Dowling began representing the Butterworths, Contreras named him as a defendant. The trial court denied Dowling’s special motion to strike, ruling that Contreras’s action did not arise out of protected activity because she sought to hold him liable not for his activities as an attorney, but only for the underlying wrongful conduct of the Butterworths. Relying on opinions in the two prior appeals of the case, the court found Contreras had established a probability of prevailing on the merits. Finding Dowling’s motion frivolous, the granted Contreras’s motion for sanctions. The court of appeal reversed. Contreras’s claim against Dowling arises out of protected activity because the only actions Dowling himself is alleged to have taken are communicative acts by an attorney representing clients in litigation. Such acts are protected by Code of Civil Procedure section 425.16. Bare allegations of aiding and abetting or conspiracy do not suffice to remove such acts from the statute's protection. Contreras cannot demonstrate a probability of prevailing on the merits because Dowling’s communicative acts are within the scope of the litigation privilege codified in Civil Code section 47(b). View "Contreras v. Dowling" on Justia Law