Justia Legal Ethics Opinion Summaries

In this California Fair Employment and Housing Act (FEHA) case, the Court of Appeal granted the petition for writ of mandate and directed respondent Los Angeles Superior Court to vacate its order awarding attorney fees to Charter and to conduct a new hearing to reconsider Charter's motion for attorney fees. At issue is whether an employer's arbitration agreement authorizes the recovery of attorney fees for a successful motion to compel arbitration of a FEHA lawsuit even if the plaintiff's opposition to arbitration was not frivolous, unreasonable or groundless.The court concluded that, because a fee-shifting clause directed to a motion to compel arbitration, like a general prevailing party fee provision, risks chilling an employee's access to court in a FEHA case absent Government Code section 12965(b)'s asymmetric standard for an award of fees, a prevailing defendant may recover fees in this situation only if it demonstrates the plaintiff's opposition was groundless. In this case, no such finding was made by the superior court in the underlying action before awarding real party in interest Charter its attorney fees after granting Charter's motion to compel petitioner to arbitrate his FEHA claims. View "Patterson v. Superior Court" on Justia Law

The court of appeal consolidated appeals from three attorneys’ fees motions by a judgment creditor (Wertheim) seeking over $800,000 for its efforts to enforce a 2009 judgment entered after a jury awarded it approximately $39,000. The court of appeal affirmed the denial of fees as to the appeal bond fee motion but reversed, in part, the denial of fees as to post-judgment enforcement fees. The court noted that even standing alone, these fee claims are striking in relation to the amount of the underlying judgment and also must be considered in light of the more than 40 appeals occasioned by the parties’ competing businesses in the last 12 years. The court concluded that the motion for post-judgment enforcement fees was timely but characterized Wertheim’s litigation strategy as “unnecessary and objectively unreasonable.” View "Wertheim, LLC v. Currency Corp." on Justia Law

Alevy was an owner, officer, and board member of Amusement, a real estate company, engaged in the ongoing Stern Litigation. In 2010, Alevy offered Missakian employment as in-house counsel at Amusement, including working on the Stern Litigation. Under the Oral Contract, Missakian would receive a salary of $325,000, and, after the Stern Litigation ended, Missakian would receive a bonus of $6,250 for each month he had worked on that litigation plus 10 percent of the recovery, excluding ordinary litigation costs. The parties exchanged multiple written drafts but never signed a written contract. Missakian left Amusement in 2014. The Stern Litigation settled months later. Amusement received $26 million. Missakian never received the Monthly Bonus or the Stern Litigation Bonus.A jury issued a verdict in favor of Missakian on the claims for breach of oral contract and promissory fraud and made special verdict findings in favor of Alevy on promissory fraud. The trial court granted judgment notwithstanding the verdict (JNOV) on Missakian’s promissory fraud claim against Amusement.The court of appeal reversed. The Oral Contract is void under Business and Professions Code section 6147, 2 which requires contingency fee agreements to be in writing. The jury’s special verdict on promissory fraud was inconsistent because it found Alevy did not make a false promise, but that Amusement (acting only through Alevy) did. Because the court cannot choose between the jury’s inconsistent responses, the court should have ordered a new trial. View "Missakian v. Amusement Industry, Inc." on Justia Law

Isaac Zafft was fatally shot when a marijuana greenhouse in which he was sleeping was being robbed. In 2014, Nathan Philbrook and Daniel Devencenzi stole marijuana from multiple marijuana farms and greenhouses Philbrook’s wife, Amber N., helped locate on Google Earth. In July, Philbrook invited defendant Finley Fultz to a marijuana theft with him and Devencenzi. Philbrook and defendant drove to California from Nevada in defendant’s truck and Devencenzi followed in his truck. Philbrook entered the greenhouse’s back door, while Devencenzi stayed outside the back door and, according to Philbrook, defendant walked to the front of the greenhouse. Zafft awoke to the sound of Philbrook’s presence and saw the laser sight attached to Philbrook’s AR-15 style handgun. Zafft ran out the front door of the greenhouse where defendant was located. Defendant shot five times, hitting Zafft. The group fled back to Nevada. Upon their return to Nevada, defendant admitted to Amber he delivered the fatal shots, and Philbrook made statements inculpating defendant as the shooter. During the pendency of defendant’s, Devencenzi’s, and Philbrook’s joint criminal prosecution, Devencenzi and Philbrook pled guilty in exchange for reduced sentences. The prosecution failed to inform defendant that those bargains were offered as package deals, contingent on both Devencenzi and Philbrook accepting the plea bargains and fulfilling the bargains’ terms for either to benefit. The prosecution also failed to inform defendant the offers were contingent upon Philbrook and Devencenzi including in a written factual statement that they and defendant participated in a robbery and defendant killed Zafft. When making those bargains, Devencenzi and Philbrook agreed to be interviewed by the prosecution, which the prosecution failed to audio record. Finally, the prosecution continued its investigation of the case against defendant during trial and did not disclose material it intended to use against him until shortly before it was to be offered into evidence. Based on the government’s conduct throughout the investigation and trial, the trial court made several credibility findings rejecting the prosecution’s innocent explanations for the constitutional violations. The trial court then dismissed the case against defendant finding there was no possibility he could receive a fair trial considering the nature of the evidence against him and the violations surrounding his accomplices’ pleas and interviews. The Court of Appeal concluded the trial court's finding was made in error: because the record demonstrated the trial court believed a fair trial could be had in the absence of the "Medina" error, it was appropriate to reverse the judgment and remand the matter to the trial court to "again tailor relief to neutralize the taint resulting from the prosecutor’s other misconduct." View "California v. Fultz" on Justia Law

In a suit concerning oil and gas royalties, Poole, an attorney, represented only himself. Poole's interest in the royalties is “less than 1%,” the other owners were members of two families. Poole sought “$50,745 for fees and [$1,572.75] for costs for work successfully defending the trial court judgment on appeal” plus “$46,020 for fees and $1,269.29 for costs for work performed in the Superior Court.” Poole requested that payment be made from the interpleaded royalties, citing the equitable common fund theory, which allows a party, who has paid for counsel to prosecute a lawsuit that creates or preserves a fund from which others will benefit, to require those other beneficiaries to bear their fair share of the litigation costs. Other parties objected, reasoning that an award would deplete the royalties available for distribution to family members; one told the court that Poole’s involvement was "counterproductive.”The court of appeal affirmed the denial of an award of attorneys’ fees under the common fund theory. An attorney who represents only himself and does not pay or become liable to pay consideration in exchange for legal representation may not recover attorney fees under the equitable common fund doctrine but may seek recovery of legitimate, reasonable costs excluding attorney fees under that doctrine. View "Leiper v. Gallegos" on Justia Law

The appointment of a guardian ad litem for a parent in a dependency proceeding radically changes the parent's role, transferring direction and control of the litigation from the parent to the guardian ad litem. While necessary to protect the rights of an incompetent parent—an individual incapable of understanding the nature and purpose of the proceeding or unable to assist counsel in a rational manner—appointment of a guardian ad litem is not a tool to restrain a problematic parent, even one who unreasonably interferes with the orderly proceedings of the court or who persistently acts against her own interests or those of her child.The Court of Appeal reversed the order appointing a guardian ad litem for mother, concluding that the appointment of a guardian ad litem for mother is not supported by substantial evidence and was not harmless. In this case, mother's clashes with counsel were not the result of any mental health disorder but were deliberate and strategic, designed to frustrate and delay proceedings she believed were going to be unfavorable to her. The court noted that, while mother is unquestionably a difficult party, a guardian ad litem cannot be appointed without any finding of her incompetence. View "In re Samuel A." on Justia Law

Milan and Dmitry Piterman were married in 1990. In 2013, Milan filed a petition for legal separation. Korchemny, a close friend of Dmitry’s, sued Dmitry, Milan, and Milan’s Trust based on two promissory notes. Dmitry filed a cross-complaint against Milan and the trust. After years of extensive litigation, Milan and the trust obtained summary judgment against Korchemny based on their affirmative defense of usury. They were later awarded $318,000 in attorney fees. Korchemny appealed both the judgment and the attorney fee order. On Dmitry’s cross-complaint, Milan and the trust obtained judgment on the pleadings against Dmitry.The court of appeal affirmed. When the payments made under the promissory notes are applied to reduce principal in accordance with California usury law, the result is that a 2000 note was fully paid off by May 2011 and the 2001 note fully paid off by January 2017. The attorneys’ fees award was fully supported. There was nothing for which Dmitry could be indemnified or get contribution; if Dmitry had acted like a defendant typically does, and fought against plaintiff Korchemny, Dmitry too, would have proven usury, and would thus not be liable to Korchemny. He would have been the prevailing party, entitled to his costs. View "Korchemny v. Piterman" on Justia Law

Rozanova, self-represented, sued her neighbors, the respondents, in 2019. Rozanova had previously asserted claims involving the same property in 2013. The respondents unsuccessfully moved to have Rozanova declared a vexatious litigant and to require her to post bond or dismiss the action. The trial court later granted their motion for judgment on the pleadings, finding the action was “barred by res judicata/collateral estoppel and the statute of limitation.”Respondents filed a memorandum of costs, seeking $2,905.69 from Rozanova: $1,080 in filing and motion fees, $90 in court reporter fees, $1,253.04 for preparing photocopies of exhibits, and $482.65 in electronic filing or service fees. Among her objections, Rozanova claimed that recovery for photocopies “is limited to trial exhibits” under Code of Civil Procedure section 1033.5(a)(13). The trial court reduced the amount for electronic filing and service fees and approved an award of $2,743.04. The court found the motions to declare Rozanova a vexatious litigant and for an order restricting discovery “were made in good faith.” The court of appeal affirmed. The costs are recoverable outside the context of trial under section 1033.5(a)(13), View "Rozanova v. Uribe" on Justia Law

Plaintiff Sayedeh Sahba Amjadi appealed the dismissal entered after a settlement was entered by her attorney on her behalf and over her objection with defendant Jerrod West Brown, and appealed an order denying her subsequent motion to vacate the judgment. The settlement was entered by plaintiff’s attorney pursuant to a provision in the attorney’s contingent fee agreement, which purported to grant the attorney the right to accept settlement offers on the client’s behalf in the attorney’s “sole discretion,” so long as the attorney believed in good faith that the settlement offer was reasonable and in the client’s best interest. The Court of Appeal determined such a provision violated the Rules of Professional Conduct and was void to the extent it purported to grant an attorney the right to accept a settlement over the client’s objection. Accordingly, the Court held the settlement to be void and reversed the resulting judgment. The Court also referred plaintiff’s former attorneys to the State Bar for potential discipline, as required by law and by Canon 3D(2) of the Code of Judicial Ethics. View "Amjadi v. Brown" on Justia Law

Plaintiff and her late husband, Grant Tinker, signed a premarital agreement (PMA) that in relevant part governed the ownership and testamentary disposition of their marital home. Respondents, Larry Ginsberg and his law firm, represented plaintiff in connection with the PMA and approved the PMA as to form on her behalf. Non-attorney Sidney Tessler, Tinker's longtime accountant and business manager, negotiated terms and approved the PMA as to form on Tinker's behalf. Plaintiff, the estate, and Tinker's children subsequently litigated plaintiff's and the children's claims, which were ultimately resolved in a global settlement.Plaintiff then filed suit against Ginsberg for legal malpractice in connection with the preparation and execution of the PMA, alleging that the PMA was unenforceable due to Ginsberg’s failure to ensure that Tinker signed a waiver of legal representation. The trial court granted Ginsberg's motion for summary judgment on the ground that Tinker ratified the PMA.The Court of Appeal reversed, concluding that there is a triable issue of material fact as to the threshold issue of whether Tinker satisfied the requirements of Family Code section 1615 when he executed the PMA. The court explained that, if the factfinder determines that Tinker did not comply with section 1615, and the PMA was therefore not enforceable, the question becomes whether Tinker's subsequent amendments to his estate plan could ratify the PMA and thereby rectify the statutory violation. The court concluded that the trial court erred by concluding that they could and did. The court held that a premarital agreement that is not enforceable under section 1615 is void, not voidable, and accordingly cannot be ratified. Because none of the other grounds asserted in the summary judgment motion support the trial court's ruling, the court reversed and remanded for further proceedings on plaintiff's malpractice claim. The court denied plaintiff's request for judicial notice as moot. View "Knapp v. Ginsberg" on Justia Law