Justia California Court of Appeals Opinion SummariesArticles Posted in Legal Ethics
Big Lots Stores v. Super. Ct.
In this case, the real parties in interest and plaintiffs were former store managers for petitioner-defendant Big Lots Inc., who claimed they spent less than 50 percent of their worktime on managerial tasks and, as a result, should have been paid overtime compensation for hours worked in excess of a standard 40-hour week. Big Lots was an Ohio corporation. When this lawsuit was first filed, it retained a California law firm, Haight Brown & Bonesteel LLP (Haight Brown), as counsel of record. Big Lots later sought the superior court’s permission for attorneys from an Ohio law firm, Vorys, Sater, Seymour & Pease LLP (Vorys), to also represent it. The trial judge ultimately granted applications filed by three different attorneys in the Vorys firm. But after later being advised that these Ohio attorneys were attempting to represent various current and former Big Lots managers in depositions noticed by plaintiffs, the court revoked pro hac vice authorization for all three lawyers. Big Lots petitioned for a writ of mandamus to overturn that order. The Court of Appeal agreed with the trial judge that there was a between an attorney’s representation of the defendant corporation in a lawsuit and his or her representation of current or former employee witnesses. "Pro hac vice admission as to one client does not necessarily allow a lawyer to represent a different client even if substantive law does not otherwise prohibit it." The Court nonetheless concluded the total revocation of pro hac vice status for the Vorys attorneys was not supported by the record then before the trial court. The petition to vacated the revocation order was granted, but the matter was returned to the trial court for additional hearings/orders deemed necessary. View "Big Lots Stores v. Super. Ct." on Justia Law
Moore v. Superior Court
While representing a client at a mandatory settlement conference (MSC) before a temporary judge, petitioner Kevin Moore was rude and unprofessional. Among other things, Moore: (1) persistently yelled at and interrupted other participants; (2) accused opposing counsel of lying while providing no evidence to support his accusation; (3) refused to engage in settlement discussions; and (4) effectively prevented the settlement officer from invoking the aid and authority of the supervising judge by asserting this would unlawfully divulge settlement information. To make matters worse, Moore later acknowledged that his contemptuous behavior was the result of a tactical decision he had made to act in such a manner in advance of the MSC. After a hearing, respondent court convicted Moore of four counts of civil contempt, imposed a $900 fine for each count ($3,600 total), and ordered the payment of attorney fees and costs to the opposing party. Moore challenged all four contempt convictions and the associated sanctions. After review, the Court of Appeal concluded the record and applicable law required that three of Moore’s convictions be overturned; the Court affirmed one conviction and the punishment required for that offense. The clerk of the appeallate court was ordered to make the required notification to the State Bar for whatever additional action the Bar may consider appropriate. The award of attorney fees and costs here was precluded by statute. View "Moore v. Superior Court" on Justia Law
People v. O’Hearn
Police responding to a report of O’Hearn acting erratically had previously dealt with him. They suspected O’Hearn had “mental health issues” but, after he threatened to kill his neighbors, they arrested O’Hearn for making criminal threats and violating conditions of probation. O’Hearn had four prior felony convictions. During the ensuing months, O’Hearn was represented by three attorneys and pled guilty.Then-counsel Selby failed to sign O’Hearn's Cruz/Vargas Waiver. The PSR noted that O’Hearn had bi-polar disorder and was not taking his medication at the time of the offense. Another attorney filed a motion to vacate the plea, arguing that it was the consequence of ineffective assistance. Counsel “barely met" with O'Hearn, failed to attend the sentencing hearing, lost the case file, never explained potential defenses, did not inquire about O'Hearn's extensive mental health history, and did not advise him of the consequences or alternatives. O’Hearn’s 800-page medical record showed hospitalizations for mental health problems and a history of schizophrenia. Selby had been repeatedly found to have failed to provide competent legal services. The victims, one of whom had a criminal history, had interacted with O’Hearn for many years. Conviction of making criminal threats requires specific intent, which can be negated by a mental disorder.The court of appeal reversed the denial of O’Hearn’s motion to vacate his plea. Selby never asserted any strategic reason for failing to learn whether his client’s mental state provided the basis for a possible mental defense and the deficient representation was prejudicial. View "People v. O'Hearn" on Justia Law
McCluskey v. Henry
McCluskey sought damages for the termination of her Airbnb account, alleging intentional infliction of emotional distress. The court granted a motion to stay the action and compel arbitration under the contract between McCluskey and Airbnb. McCluskey filed a claim for arbitration with the American Arbitration Association (AAA), which set deadlines for paying filing fees. McCluskey paid her fee; AAA acknowledged receipt. Airbnb sent the fee by wire transfer. AAA did not acknowledge receipt. In an April 9 email, AAA informed all counsel that it had closed the arbitration due to defendants’ failure to pay their filing fee. Defense counsel contacted AAA, and, on April 19, sent documentation of an April 5 wire transfer and an email explaining the payment had been sent together with another payment. On May 1, AAA emailed all parties that payment had been received and that AAA needed confirmation, by May 6, that they wanted the case reopened. Not having heard from McCluskey, on May 9 AAA sent “a final request for confirmation.” McCluskey again did not respond.On May 10, McCluskey sought to lift the stay, asserting that the defendants’ failure to pay their filing fee by April 5, constituted a default, waiver, or breach of the arbitration agreement. The court denied the motion. The defendants served a section 128.7 sanctions motion. The court of appeal affirmed an award of $22,159.50, as “reasonable” attorney fees for opposing the motion to lift the stay and declining to award fees incurred in bringing the sanctions motion. View "McCluskey v. Henry" on Justia Law
People v. Reyes
Reyes, a deputy public defender who began practicing law less than three years ago, was charged with witness tampering under Penal Code section 136.1(b)(1), which proscribes an attempt to dissuade any victim of or witness to a crime from reporting “that victimization” to law enforcement, and under section 137(b), which proscribes the attempted inducement of any person “by the use of fraud” to “withhold” “true material information pertaining to a crime” from law enforcement. The superior court granted Reyes’s motion to set aside the information.The court of appeal affirmed the dismissal of the section 136.1(b)(1) count. Neither the statutory text, the structure of the statute, nor the legislative history addresses whether, to constitute "dissuasion," the suppressed report of “victimization” must be of a past, completed crime or may be either a past crime or an ongoing course of criminal conduct expected to continue into the future; the court resolved the ambiguity in Reyes’s favor under the rule of lenity. The court reversed the dismissal of the 137(b) count. The statute has no language requiring, even arguably, that the withholding of testimony or information to which it is directed must involve a past crime. All it requires is that the attempt to induce the withholding must be made “by the use of fraud,” which was indisputably alleged. View "People v. Reyes" on Justia Law
Levine v. Berschneider
John B. Richards, an attorney, appeals from the trial court's order finding him in contempt and the order to pay monetary sanctions for his lack of candor with the trial court about the fact that settlement funds had been paid.The Court of Appeal dismissed the attempt to appeal from the contempt finding and affirmed the sanctions order. The court held that a trial court's judgment or order in a contempt matter is final and conclusive, and the court declined to construe the notice of appeal as a petition for an extraordinary writ. However, the order directing payment of monetary sanctions is directly appealable because it exceeds $5,000. In this case, counsel's decision to not tell the trial court that he had received "word" from opposing counsel, was concealment and a half-truth, violating the attorney's obligation as an officer of the court to be candid with the court. The court rejected the attorney's contention that the trial court lacked subject matter jurisdiction to award sanctions and that he received inadequate notice of the factual basis for the requested order to show cause. Finally, the court held that the trial court properly exercised personal jurisdiction over the attorney. View "Levine v. Berschneider" on Justia Law
Posted in: Legal Ethics
Cornerstone Realty Advisors, LLC v. Summit Healthcare etc.
Plaintiffs-Respondents were Cornerstone Realty Advisors, LLC (CRA) and Cornerstone Ventures, Inc. (CVI). Respondent Winget Spadafora & Schwartzberg, was counsel for Plaintiffs during most of the trial court litigation, referred to as WSS. Defendants-Appellants were Summit Healthcare REIT, Inc. (Summit), Paul Danchik, Daniel Johnson, Dominic Petrucci, Kairos Partners, Inc., and Kent Eikanas. Defendants sought production of CRA’s and CVI’s financial and accounting records, including their general ledgers. Plaintiffs had access to the financial and accounting records, and could and should have produced them without objection or delay. Instead, Plaintiffs carried out a protracted and costly campaign of discovery abuse, which included disobeying several court orders to produce the documents, "with the successful aim of never, ever, producing the requested documents." The trial court responded to this misconduct by imposing monetary sanctions and ordering Plaintiffs’ complaint be dismissed as a terminating sanction. Imposition of terminating sanctions, though significant, was not the subject of this appeal; plaintiffs’ appeal challenging the terminating sanctions was dismissed. The issue this case presented for the Court of Appeal's review was the monetary sanctions imposed by the trial court. Defendants contended the trial court did not award them enough to cover their attorney fees and costs incurred as a result of plaintiffs’ discovery abuses and erred by not making plaintiffs’ trial counsel jointly and severally liable for the monetary sanctions imposed. The Court of Appeal concluded: (1) the trial court's decision to impose monetary sanctions was a reasonable exercise of the court's discretion; and (2) substantial evidence supported the trial court's finding that WSS did not advise the misconduct resulting in the discovery sanctions: [t]he trial court read and considered the discovery referee’s report, which had recommended making WSS liable for the monetary sanctions, but exercised its authority to reach a different conclusion based on the court’s own assessment of the credibility of the declarants and the weight of the evidence. The court did not err in so doing." View "Cornerstone Realty Advisors, LLC v. Summit Healthcare etc." on Justia Law
Doe v. Yim
The Court of Appeal affirmed the trial court's grant of respondent's motion to disqualify appellant's attorney, who is also appellant's mother and respondent's ex-wife, from representing appellant in all phases of tort litigation based primarily on the advocate-witness rule. In this case, appellant alleged that respondent sexually abused her from the time she was nine to 13 years old.The court held that the trial court reasonably concluded that the attorney is nearly certain to be a key witness at trial and thus the trial court acted within its discretion by effectuating the advocate-witness rule's purpose of avoiding factfinder confusion. Therefore, the trial court did not abuse its discretion in applying the rule to disqualify the attorney not only at trial, but also in depositions and pretrial evidentiary hearings at which the attorney is likely to testify. The trial court also acted within its discretion in disqualifying the attorney from representing appellant in all other phases of the litigation on the ground of the attorney's potential misuse of confidential information obtained through her 17-year marriage with respondent. View "Doe v. Yim" on Justia Law
Skaff v. Rio Nido Roadhouse
Skaff sued the Roadhouse restaurant and grill, located in Sonoma County, alleging that the Roadhouse and parking lot were inaccessible to wheelchair users. Skaff cited Health and Safety Code section 19955 and the Unruh Civil Rights Act, Civ. Code section 51. Under section 19955, public accommodations must comply with California Building Code disability access standards if repairs and alterations were made to an existing facility, triggering accessibility mandates. No evidence was presented that the Roadhouse's owner had undertaken any triggering alterations. The owner nonetheless voluntarily remediated the identified barriers to access. The court entered judgment against Skaff on his Unruh Act claim but ruled in his favor on the section 19955 claim, reasoning that he was the prevailing party under a “catalyst theory” because his lawsuit was the catalyst that caused the renovations. Skaff was awarded $242,672 in attorney fees and costs.The court of appeal reversed the judgment and fee award. A plaintiff cannot prevail on a cause of action in which no violation of law was ever demonstrated or found. Nor is the catalyst theory available when a claim lacks legal merit. That a prelitigation demand may have spurred action that resulted in positive societal benefit is not reason alone to award attorney fees under the Civil Code. View "Skaff v. Rio Nido Roadhouse" on Justia Law
Department of Fair Employment and Housing v. Cathy’s Creations, Inc.
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