Justia Legal Ethics Opinion Summaries

When Frank died, Leslie, his daughter, was appointed as executor and personal representative of the estate, Independent Administration of Estates Act (Prob. Code, 10400). In his will, Frank confirmed his surviving spouse’s (Caroline’s) interest in their community and quasi-community property, and bequeathed all of his separate property, plus his one-half interest in their community and quasi-community property, to his three children, explicitly disinheriting Caroline, who is not their mother. Leslie, on behalf of Frank’s estate, filed in propria persona in the probate action a complaint for partition by sale of real property, claiming that Caroline improperly withdrew proceeds from a reverse mortgage and other allegedly fraudulent conduct. Caroline argued Leslie, as the personal representative of Frank’s estate, could not appear in propria persona in that representative capacity.The probate court granted the motions to strike with leave to amend to give Leslie the opportunity to retain counsel. The court determined that Leslie’s complaint “primarily consists of civil claims typically raised in a civil action. [Leslie], a non-attorney, cannot properly prosecute those claims in propria persona in any venue.” The court of appeal affirmed. Leslie’s complaint is a claim against third parties for the benefit of the estate’s beneficiaries, such that it could not be prosecuted by Leslie in propria persona; her conduct in filing briefs and other pleadings as representative of the estate constituted the unlicensed practice of law. View "Estate of Sanchez" on Justia Law

Lee’s contract with Cardiff segregated the $231,500 price between the construction of a pool and spa ($88,400) and the construction of a pavilion, an outdoor kitchen, an outdoor fireplace, pavers, and other landscaping items ($143,000). Disputes arose and Cardiff left the project. Lee sued. The court largely rejected Lee’s claims pertaining to the pool construction, agreed with some of her claims pertaining to the pavilion and other landscaping items, and agreed that Cardiff had violated state contracting laws by hiring workers who were not licensed contractors and treating them as independent contractors for purposes of worker’s compensation. Based on that claim, the court ordered disgorgement plus interest ($238,470). It awarded contract and tort damages of $236,634, allocating $35,000 to deficiencies with the pool.The contract did not have an attorney fees clause. The court declined to award discretionary fees under Code of Civil Procedure 1029.8, ruling Cardiff had not knowingly violated the state contractor licensing law and disgorgement was a sufficient penalty for that violation. The court ruled that because Lee was “unsuccessful on the vast majority of [her] swimming pool claims,” there was no prevailing party under Business and Professions Code 7168, which pertains to swimming pool construction contracts.The court of appeal affirmed with respect to section 7168. None of the non-swimming pool projects can reasonably be categorized as part of “a contract for swimming pool construction.” View "Lee v. Cardiff" on Justia Law

Jennie requested that Rocky pay $45,000 in attorney fees she was incurring in response to Rocky’s appeals from their judgment of dissolution and from post-judgment efforts to enforce previous orders requiring him to pay $15,000 toward Jennie’s attorney fees and divide his 401(k) plan, with which Rocky had not complied. Jennie sought $45,000. Jennie declared that she had been out of work since March 2020 because of the pandemic, her unemployment benefits had been exhausted, and she was caring for the couple’s two children; her current income came from trust distributions, at the discretion of the trustee. Rocky, an attorney, responded that he was currently unemployed and had no income or assets to pay any portion of Jennie’s fees. Each submitted extensive evidence and disputed each other’s claims.The court of appeal affirmed a $25,000 award to Jennie for need-based attorney fees (Family Code 2030), rejecting Rocky’s arguments that the trial court erred in denying him an evidentiary hearing and that there is no evidence that he can comply with the order. The court declined to dismiss the appeal under the disentitlement doctrine. The trial court made explicit findings that Rocky’s income in 2020 was considerably higher than Jennie’s; her expenses exceeded her income; and Rocky had legal representation without paying attorney fees, while Jennie did not. The award complied with the statute and is supported by substantial evidence. View "Marriage of Hearn" on Justia Law

After obtaining a judgment against Defendants in a prior case, Plaintiffs filed this action against Defendants, their attorney, and others for fraudulent transfer, quiet title, and declaratory relief. Defendants filed a special motion to strike the entire complaint pursuant to the anti-SLAPP statute. At issue on appeal is whether the trial court erred in ruling Defendants failed to meet their initial burden of identifying all allegations of protected activity and the claims for relief supported by them. Further, the issue is whether the trial court’s earlier order granting the Defendants’ attorney’s anti-SLAPP motion compels the same outcome here.   The Second Appellate District affirmed the order denying Defendants’ anti-SLAPP motion. The court explained that where a defendant moves to strike the entire complaint and fails to identify, with reasoned argument, specific claims for relief that are asserted to arise from protected activity, the defendant does not carry his or her first-step burden so long as the complaint presents at least one claim that does not arise from protected activity. Here, Defendants not only failed to identify specific claims for relief arising from protected activity, they expressly asked the court to perform the type of gravamen analysis disapproved in Bonni. At no point did the Defendants “identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute.” And there are obviously claims in the complaint that do not arise from anti-SLAPP protected activity. View "Park v. Nazari" on Justia Law

Zaal Aresh appealed an order vacating a judgment he obtained to enforce his attorney fee lien and to collect the fees and costs he earned in two cases from the settlement funds recovered in those cases. His dispute was with respondent Daniel Williams, the attorney who took over the clients’ representation after Aresh’s services were terminated. Aresh had initially included Williams as a defendant in his lawsuit, along with all the other potential claimants to the settlement funds recovered in the cases, with the intent that all interested parties could participate in resolving their claims to those funds in a single action. But Williams demurred, arguing Aresh was required to establish the validity, value, and enforceability of his own attorney fee liens in an action against just his former clients before he could state any cause of action involving a third party. Aresh dismissed Williams and the other third parties as defendants in the case and litigated his fee claims against only his former clients. A trial court determined Aresh was entitled to recover his earned fees and costs from the settlement amounts pursuant to his liens. However, over Aresh’s objection, the court also purported to determine the amount of fees and costs Williams was entitled to be paid from the settlement funds in the two cases, and ordered that the remainder of the two settlement funds be dispersed to the clients. Williams moved to vacate the judgment, arguing the court could not adjudicate the amount of fees and costs he was entitled to receive in a case in which he was not a party. Williams also argued the court was required to vacate the entire judgment because if the court allowed the remaining provisions of the judgment to stand, it would dispose of all the settlement funds other than those awarded to Williams, and thus would implicitly preclude him from recovering a greater share of the settlement funds than had been awarded in his absence. The trial court agreed and vacated the entire judgment. The Court of Appeal disagreed, however, and reversed in part: where the trial court erred was in failing to distinguish between the provisions of the judgment awarding fees and costs to Aresh, and those awarding the remaining portion of the settlement funds to Aresh’s former clients. Only the latter could not be severed from the properly vacated provisions adjudicating Williams’s rights. The provisions adjudicating Aresh’s rights to specific portions of the settlement funds remained intact. View "Aresh v. Marin-Morales" on Justia Law

The trial court entered judgment for Respondent in this breach of contract claim. The Second Appellate District affirmed and also imposed sanctions against Appellant's counsel for filing a frivolous appeal.The Second Appellate District explained "An appeal is frivolous only when it is prosecuted for an improper motive – to harass the respondent or delay the effect of an adverse judgment – or when it indisputably has no merit – when any reasonable attorney would agree that the appeal is totally and completely without merit." The court held that here, the appeal was frivolous because it "indisputably has no merit." The matter was entirely within the discretion of the trial court, and the fact that Appellant's counsel consulted with two other attorneys who believed the claim had merit did not change the court's opinion. View "Champlin/GEI Wind Holdings, LLC v. Avery" on Justia Law

Kinney, an adjudicated vexatious litigant and disbarred former attorney, obtained leave to pursue an appeal from the final judgment in this probate proceeding. Leave was granted not because Kinney made the necessary threshold showing of merit and absence of intent to harass or delay under Code of Civil Procedure section 391.7, but because the vexatious litigant statute has no application to a party who files an appeal in a proceeding he did not initiate.Kinney appealed the Final Distribution and Allowance of Fees Order, apparently claiming that the probate court erred in approving the Special Administrator’s decision not to pay him his $1,000 statutory fee, cancellation of an agreement with a prior administrator of the estate to manage and perform various services relating to a house owned by the estate, and approval of a distribution of $329,684.82 out of the sales proceeds of that house to satisfy indebtedness pursuant to certain judgment liens against that property.The court of appeal affirmed, describing Kinney’s arguments as “incoherent” and a “hodgepodge.” On all but one of the issues presented, Kinney either has no standing to appeal or is barred under the doctrine of claim preclusion; on the remaining claim of error, the probate court acted within its discretion. View "Estate of Kempton" on Justia Law

McCormick sought disability retirement based on symptoms caused by her office environment. The California Public Employees’ Retirement System (CalPERS) denied her application. The court of appeal held that CalPERS members are eligible for disability retirement under the Public Employees’ Retirement Law (Gov. Code 20000) when they can no longer perform their usual duties at the location where they are required to work. A CalPERS member need not request an accommodation to become eligible for disability retirement. On remand, McCormick sought "prevailing party" attorneys' fees under Code of Civil Procedure section 1021.5, which applies when the action has conferred a significant benefit "on the general public or a large class of persons.”The court of appeal reversed the denial of that motion, finding that its prior opinion conferred a significant benefit on the public and that McCormick is otherwise entitled to attorney fees under section 1021.5. The conclusions reached in the earlier decision confer a benefit on a group larger than those CalPERS members who might seek disability retirement in factual circumstances similar to McCormick’s. The opinion emphasized that disability must be judged in light of a member’s actual job location and duties and that members need not seek an accommodation to become eligible. View "McCormick v. California Public Employees’ Retirement System" on Justia Law

When A.F. was 11 years old, she applied for a domestic violence restraining order (DVRO) against her father, Jeffrey F., who held joint legal custody with her mother, Andrea F. Mother was the original guardian ad litem (GAL), and she retained attorney Edward Castro to represent A.F. Father successfully moved to disqualify Mother as the GAL and Castro as A.F.’s counsel. A.F. appealed the order disqualifying Castro. A new GAL was not appointed. Although A.F. brought the petition on her own behalf, the family court in her parents’ dissolution matter, appointed a “minor’s counsel” to represent her best interests there, in anticipation of changes to the custody and visitation arrangement that could result from the outcome in the DV matter. A.F. retained attorney Aaron Smith, to represent her in the DV matter. The court disqualified Smith for numerous reasons, including that there was a potential conflict of interest from having her maternal grandfather serve as a third-party guarantor. The court also interviewed A.F. and determined she was not competent to retain counsel independently, and it found Smith did not meet the requirements detailed by the California Rules of Court to serve as a “minor’s counsel.” The court appointed counsel in the DV matter, and prohibited Smith from replacing the attorney the court appointed as a “minor’s counsel.” A.F. appealed, contending that the issue of selecting her attorney should have been stayed pending the appeal of the court’s order disqualifying Castro. She also contended it was error to appoint counsel in the DV matter and to disqualify the attorney she chose to represent her there. The Court of Appeal: (1) concluded the court had subject matter jurisdiction to act in the DV matter while the first appeal was pending because her original attorney substituted out of the case; (2) reversed the appointment of a “minor’s counsel,” which was improper in a DV matter where a minor seeks a restraining order under the Domestic Violence Prevention Act (DVPA); (3) affirmed the order voiding the agreement between A.F. and Smith and removing Smith as her attorney on the basis that A.F. lacked competency to select her attorney independently; (4) reversed the order prohibiting Smith from serving as A.F.’s attorney in the matter because it was an abuse of discretion to completely disqualify him on the basis that the court rejected the fee agreement or that he failed to meet the requirements of Rule 5.242. View "A.F. v. Jeffrey F." on Justia Law

Vivera Pharmaceuticals, Inc. (Vivera) was developing a medical test kit, but had received “negative publicity” from its litigation with a rival company. Vivera hired Sitrick Group, LLC (Sitrick) to manage a public relations campaign. Vivera did not make any payments and Sitrick filed demands for arbitration with Judicial Arbitration and Mediation Services (JAMS). Judge Swart was selected to serve as an arbitrator in a separate matter between Sitrick and Legacy Development (the Legacy matter). In that matter, Sitrick was employing the same law firm (but a different lawyer) as was representing it in the arbitration with Vivera. Sitrick filed petitions to confirm the arbitration award. Vivera asked the trial court to vacate the arbitrator’s award due to Judge Swart’s inadequate disclosure of the Legacy matter. The trial court issued an order confirming the arbitrator’s award.   The Second Appellate District affirmed. The court explained that the California Arbitration Act (the Act) requires arbitrators to disclose, among other things, matters that the Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics Standards) dictate must be disclosed. At issue here is whether the Ethics Standards require a retained arbitrator in a noncommercial case to disclose in one matter that he has been subsequently hired in a second matter by the same party and the same law firm. The court held “no,” at least where the arbitrator has previously informed the parties—without any objection thereto—that no disclosure will be forthcoming in this scenario. Because the arbitrator’s disclosures were proper here, the trial court properly overruled an objection based on inadequate disclosure. View "Sitrick Group v. Vivera Pharmaceuticals" on Justia Law