Justia Legal Ethics Opinion Summaries

Articles Posted in California Courts of Appeal
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An award of attorneys' fees under Code of Civil Procedure section 1021.5 was properly denied to the prevailing defendants in an action brought by DFEH under Government Code section 12974. This case arose out of an administrative complaint filed with DFEH by a same-sex couple who alleged they were denied services at a bakery because of their sexual orientation.The Court of Appeal held that section 12974's unilateral attorneys' fee provision conflicts with Code of Civil Procedure section 1021.5, and the two statutes cannot reasonably be harmonized. The court explained that because section 12974 is the more specific, later-enacted statute, it governs. Therefore, the court held that a prevailing defendant in a section 12974 action is not entitled to an award of fees against DFEH under section 1021.5, and the trial court did not err in denying defendants' attorneys' fee request. View "Department of Fair Employment and Housing v. Cathy's Creations, Inc." on Justia Law

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As the foundation for the application of Code of Civil Procedure section 1021.5 to this case, the Court of Appeal held that an unincorporated association has standing to appear in an election contest as a representative of its members if (1) its members live in the area affected by the outcome of the election, (2) its members would suffer injury from an adverse outcome in the election contest, and (3) the questions involved were of a public nature.In this case, the court held that the unincorporated association met these requirements where it is undisputed that the patients residing at CSH-Coalinga are in an area affected by the referendum vote on Measure C; the members of DACE would have been harmed in at least two ways if the election contest was successful; and the specific challenge of illegal votes raised in this election contest involves questions of a public nature. The court held that the trial court's analysis of DACE's right to intervene in the election contest in the order denying the motion for attorney fees did not accurately reflect California law governing an unincorporated association and (2) DACE qualified for permissive intervention. Furthermore, as a de facto intervenor and based on its unique contribution to the evidence and argument presented in the trial court, DACE qualified as a party for purposes of section 1021.5's "successful party" requirement. The court rejected the remaining contentions, reversing the order denying the motion for attorney fees. View "Vosburg v. County of Fresno" on Justia Law

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The underlying lawsuit arose from plaintiffs' claim that Ken's salad dressing labels were deceptive. In June 2017, plaintiffs served Ken's with their prelawsuit notice and demand to remove claims about olive oil from the labels on its salad dressings. In October 2017, a neutral case evaluator concluded that plaintiffs' claims likely had merit and that the False Advertising Law and Unfair Competition Law claims would likely be certified as a class. In November 2017, Ken's drafted a PowerPoint presentation that described plaintiff's claims, proposed label changes, and thereafter revised its salad dressing labels and finalized the changes in 2018.The Court of Appeal affirmed the trial court's order granting plaintiffs' motion for attorney fees. The court held that the trial court did not err by concluding that plaintiffs were "successful parties" where the sequence of events provides a reasonable basis for the trial court's conclusion that plaintiffs' lawsuit was a catalyst motivating Ken's to change the labels on its salad dressings. Furthermore, there was a reasonable basis for the trial court to conclude that injunctive relief was the primary relief sought. The court also held that the lawsuit was meritorious and that plaintiffs reasonably attempted to settle the matter short of litigation. Finally, the court rejected Ken's public policy argument. View "Skinner v. Ken's Foods, Inc." on Justia Law

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Paul Copenbarger and Kent McNaughton formed Newport Harbor Offices & Marina, LLC (NHOM) in 2003 to acquire an office building in Newport Beach. McNaughton and Copenbarger were equal owners and the sole members of NHOM. Copenbarger delegated to McNaughton “management of the day-to-day operations of the commercial real property owned by the Company,” and McNaughton delegated to Copenbarger “management and handling of all legal affairs of the Company.” These delegations were “[s]ubject to revocation” by the delegating members. McNaughton later leased several office suites in NHOM’s building for his separate real estate business. McNaughton signed the rental agreement on behalf of both himself and NHOM. In early 2008, after learning McNaughton had unilaterally increased his monthly NHOM management payments to himself, Copenbarger revoked McNaughton’s delegated authority to manage NHOM’s day-to-day operations. In response, McNaughton stopped paying rent to NHOM. NHOM hired attorney Elaine Alston and her firm, Alston, Alston & Diebold (collectively, Alston), to file unlawful detainer actions against McNaughton. In June 2008, while the unlawful detainer actions and arbitration were pending, McNaughton formally revoked Copenbarger’s delegated right to manage NHOM’s legal affairs. He also filed a motion to compel arbitration of the lease dispute. The arbitrator issued an interim award in 2011, finding largely in Copenbarger’s favor. He further found McNaughton had breached his leases with NHOM by improperly withholding rent. Copenbarger petitioned to confirm the arbitration award with the trial court, and McNaughton filed a motion to disqualify Alston. The court denied McNaughton’s disqualification motion, granted Copenbarger’s petition to confirm the arbitration award, and confirmed the award in all respects. McNaughton filed an action seeking declaratory relief against Alston, "vaguely alleging" Alston was impermissibly representing NHOM in litigation matters now adverse to McNaughton. The trial court sustained Alston's demurrer without leave and granted her anti-SLAPP motion, citing the collateral estoppel effect of the first case. Alston then filed the underlying malicious prosecution action against McNaughton and his attorneys, who each filed anti-SLAPP motions. The Court of Appeal affirmed that portion of the trial court's order granting McNaughton's anti-SLAPP motion as to Alston's fraud claim; the portion of the order granting McNaughton’s and his attorney's anti-SLAPP motions as to Alston’s malicious prosecution claim was reversed. The matter was remanded for further proceedings. View "Alston v. Dawe" on Justia Law

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In 1995, 17 plaintiffs sued the Highsmiths on several promissory notes. The parties entered into a stipulation; a single judgment was entered in favor of the plaintiffs in various amounts. In 2005, an attorney representing the plaintiffs renewed the judgment using the standard Judicial Council form. The attorney subsequently died. When the judgment was again due to be renewed in 2015, one of the plaintiffs (Bisordi) did so, again using the standard form. Defendants moved to vacate the 2015 renewal, arguing that it was void because to the extent one plaintiff purported to file it on behalf of the others, doing so constituted the unauthorized practice of law. The trial court agreed. The court of appeal reversed. Bisordi was acting in a “clerical” capacity, or as a “scrivener.” The statutory renewal of judgment is an automatic, ministerial act accomplished by the clerk of the court; entry of the renewal of judgment does not constitute a new or separate judgment. Bisordi did not hold himself out as any kind of attorney, offer the other creditors any legal advice, or resolve for them any “difficult or doubtful legal questions” that might “reasonably demand the application of a trained legal mind.” View "Altizer v. Highsmith" on Justia Law

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Plaintiff filed suit against Regents after UCSB placed him on interim suspension pending its investigation into an allegation of dating-relationship violence and then delayed completion of the investigation, in violation of its own written policies. The superior court preliminarily enjoined the interim suspension pending completion of the administrative proceedings. Plaintiff was ultimately exonerated in the administrative proceedings. The Superior Court then dismissed plaintiff's action as moot and denied attorney's fees under Code of Civil Procedure section 1021.5.The Court of Appeal affirmed the order of dismissal, but held that plaintiff satisfied the criteria for an award of attorney fees under section 1021.5. The court agreed with plaintiff that the superior court misinterpreted section 1021.5 by focusing primarily on his personal interest in bringing the litigation, as opposed to the significance of the constitutional due process rights that were enforced, and that this misinterpretation "drove the denial of fees." Accordingly, the court reversed the denial of the fee motion and remanded for a determination of the amount to be awarded. View "Doe v. The Regents of the University of California" on Justia Law

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UHI and Lavine, its president, sued five defendants for fraudulent transfer. Following a two-day bench trial, the court held that the transfer was made in satisfaction of an antecedent debt, and entered judgment for defendants. The defendants then moved for costs of proof attorney fees under Code of Civil Procedure section 2033.420(a). A different judge awarded one defendant $35,595 in fees. The court of appeal held that the appeal from the judgment was not well taken and affirmed it. The court rejected an argument that a creditor whose debt is time-barred by the governing limitations period no longer has a “right to payment.” The statute of limitations is an affirmative defense that can be waived. The court struck the costs of proof award as improper. A defendant cannot, at the very inception of litigation, at a time when no discovery had taken place, and no deposition, serve requests for admission essentially seeking responses admitting that plaintiff had no case, and then, if plaintiff ultimately proves unsuccessful, recover costs of proof attorney fees. View "Universal Home Improvement, Inc. v. Robertson" on Justia Law

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The applicable standard of proof for the elements of causation and damages in a "settle and sue" legal malpractice action is the preponderance of the evidence standard. In this case, defendant, the attorney, contends that the element of causation and damages in a "settle and sue" legal malpractice case must be proven to a legal certainty, and that the legal certainty standard imposes a burden of proof higher than a mere preponderance of the evidence.The Court of Appeal explained that no published legal malpractice case using the term "legal certainty" expressly states the default burden of proof is replaced by a standard higher than preponderance of the evidence. Therefore, the court held that the term "legal certainty" is ambiguous and the court resolved the ambiguity by interpreting the statement that a plaintiff must present "evidence showing to a legal certainty that" the alleged breach of duty caused an injury as simply referring to the degree of certainty inherent in the applicable burden of proof. View "Masellis v. Law Office of Leslie F. Jensen" on Justia Law

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After plaintiff settled her civil action as the prevailing party, the trial court set a hearing three months out on an order to show cause (OSC) regarding dismissal, and ordered any motion for attorney fees to be filed and heard before the OSC date. Due to mistake, inadvertence, or neglect by counsel, plaintiff did not file a motion for fees by the court-ordered deadline. The trial court then refused to extend the deadline and dismissed the action pursuant to the settlement agreement. Four months later, counsel filed a motion to set aside the dismissal pursuant to the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b).The Court of Appeal affirmed the trial court's denial of the motion, holding that counsel missed the court-ordered deadline to move for attorney fees and section 473 provides no relief for such error. The court agreed with the trial court that dismissal was not caused by counsel's error. Rather, counsel's error simply caused plaintiff to lose the opportunity to file her fee motion. View "Hernandez v. FCA US LLC" on Justia Law

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Wittenberg and Daniel are the co-owners of Hertzel Enterprises LLC. Attorney Peretz formerly represented Hertzel and now represents Daniel. Wittenberg filed suit asserting claims, individually and derivatively on behalf of Hertzel, against defendants including Daniel and Peretz. Wittenberg alleged that Peretz breached his fiduciary duties of loyalty, care, and confidentiality by representing clients with interests adverse to those of Hertzel; using Hertzel’s confidential business information in his representation of clients with adverse interests; and conspiring with Daniel and others to dismiss with prejudice a cross-complaint that Hertzel had previously filed against Daniel.Peretz filed a special motion to strike under the anti-SLAPP law (Code Civ. Proc. 425.16). The trial court declined to strike the causes of action for breach of fiduciary duty and conspiracy, finding they arose not out of Peretz’s litigation conduct but the alleged breaches of his professional obligations. The court of appeal reversed, finding that Peretz carried his burden to show the two causes of action arise, in part, from protected activity, so that the burden shifted to Wittenberg to show minimal merit on her claims based on the allegation of protected activity, which she failed to do. The act underlying Peretz’s liability for this particular allegation is protected litigation conduct. View "Wittenberg v. Bornstein" on Justia Law