Blog - The Mellor Law Firm

Reviewing Opponent’s Privileged Documents May Lead To Attorney Disqualification.

Posted on May 18, 2013 by Mark Mellor

Where law firm obtained opponents’ privileged documents which were protected by the attorney-client privilege and used these documents, the trial court properly disqualified the law firm. Where lawyers receive documents that are obviously privileged, they can only examine them to the extent necessary to determine the privileged character of the documents and immediately notify the sender that they possess such privileged documents. Clark v. Sup.Ct. (VeriSign, Inc.) (Cal. App. Fourth Dist., Div. 1; June 2, 2011) 196 Cal.App.4th 37, [125 Cal.Rptr.3d 36, 12011 DJDAR 8023].

Settlement Offers To Compromise Under Code of Civil Procedure Section 998, Must Conform To Statute.

Posted on May 17, 2013 by Mark Mellor

Since 2006, the statute governing statutory offers to compromise (Code of Civil Procedure section 998) has provided that the offers include “a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.” The language of the statute is mandatory and Puerta v. Torres (Cal. App. Fourth Dist., Div. 3; May 25, 2011) 195 Cal.App.4th 1267, [124 Cal.Rptr.3d 922, 2011 DJDAR 7614], http://www.courts.ca.gov/opinions/archive/G043745.PDF held that an offer not containing this sentence was void and costs could not be awarded to defendant even though the judgment was for less than the offer.

Posted in Appellate Law News, Legal News, Procedural Law News, Settlement Law News | Tagged 124 Cal.Rptr.3d 922, 195 Cal.App.4th 1267, 2006, 2011 DJDAR 7614, acceptance, accepted, accepting, accepting party, allows, arbitration, awarded, better served, bright line rule, case law, Civ.Proc., Civ.Proc. § 998, Code Civ. Proc., Code Civ. Proc. § 998, Code of Civil Procedure, Code of Civil Procedure section 998, containing, costs, defeat, defense counsel's, expert witnesses, expiration date, faxed, governing, held, include, indicate, ineffective, interpreter, invalid, judgment, language, legislative purpose, less, Malpractice, mandatory, Must Conform To Statute, new judgment, offer, offer to settle, offers to compromise, plain language, plain meaning, provided, provision, Puerta, section 998, sentence, settlement, settlement offer, Settlement Offers To Compromise Under Code of Civil Procedure Section 998, signing, statement, statute, statutory, statutory construction, statutory offer, Torres, track, unambiguous, void, witness fees, written offer, § 998 | Leave a comment

With Class Action Waiver Under Federal Arbitration Act State May Not Refuse To Enforce Arbitration Contract.

Posted on May 17, 2013 by Mark Mellor

The U.S. Supreme Court held that, where a contract is subject to the Federal Arbitration Act, a court may not refuse to enforce an arbitration clause with a class action waiver on grounds that such a clause is unconscionable. AT&T Mobility LLC v. Concepcion (U.S.Supr.Ct.; April 27, 2011) 131 S.Ct. 1740, [179 L.Ed.2d 742, 79 U.S.L.W. 4279, 161 Lab.Cas. (CCH) P10,368, 52 Comm.Reg.(P & F) 1179, 22 Fla.L.WeeklyFed.S 957, 2011 DJDAR 5846].

Posted in Arbitration Law News, Class Action Law News, Contract Law News, Legal News, U.S. Supreme Court | Tagged 131 S.Ct. 1740, 161 Lab.Cas. (CCH) P10, 179 L.Ed.2d 742, 2011 DJDAR 5846, 22 Fla.L.WeeklyFed.S 957, 368, 52 Comm.Reg.(P & F) 1179, 79 U.S.L.W. 4279, accomplishment, adhesion, agreement to arbitrate, arbitrate, arbitration, arbitration agreements, arbitration clause, Arbitrator, AT&T Mobility LLC, bargaining power, bilateral, certification, claimant's, class action, classwide, Clause, Concepcion, consumer, contract, court, customer, discovery, duress, enforce, Enforceable, exculpatory, Federal Arbitration Act, grounds, irrevocable, obstacle, public policy, Refuse, revocation, save, saving clause, state law, subject to, U.S. Supreme Court, Unconscionability, unconscionable, Waiver, With Class Action Waiver Under Federal Arbitration Act State May Not Refuse To Enforce Arbitration Contract. | Leave a comment

Attorney Fees Are Included In “Costs” In Section 998 Settlement Offer.

Posted on May 16, 2013 by Mark Mellor

After accepting a settlement offer under California Code of Civil Procedure section 998, in a specified amount and providing “that each side bear their own costs,” plaintiff moved for statutory attorney fees. Defendant opposed contending that the term “costs” included statutory attorney fees. The trial court agreed with defendant and denied the motion. The Court of Appeal affirmed. Under section 1033.5, the term “costs” includes statutory attorney fees. Martinez v. Los Angeles County Metropolitan Transportation Authority (Cal. App. Second Dist., Div. 1; May 23, 2011) 195 Cal.App.4th 1038, [124 Cal.Rptr.3d 802, 2011 DJDAR 7417].

Posted in Appellate Law News, Attorney's Fees News, Legal News, Procedural Law News, Settlement Law News | Tagged 124 Cal.Rptr.3d 802, 195 Cal.App.4th 1038, 2011 DJDAR 7417, accepting, affirmed, Agreed, allowable, attorney fees, Attorney Fees Are Included In “Costs” In Section 998 Settlement Offer, bright-line, Civ.Proc., Civ.Proc. § 1033.5, Civ.Proc. § 998, Code Civ. Proc., Code Civ. Proc. § 998, Code of Civil Procedure, Code of Civil Procedure section 1033.5, Code of Civil Procedure section 998, contending, costs, Court of Appeal, denied, disability, each side bear their own costs, expressly provided, expressly states, fees, includes, Los Angeles County Metropolitan Transportation Authority, Martinez, monetary, Motion, moved, offer of compromise, opposed, prevailing party, providing, section 1033.5, section 998, settlement, settlement offer, specified amount, statutory, statutory attorney fees, statutory fees, term, trial court, § 1033.5, § 998 | Leave a comment

Flyers Unrelated To Labor Dispute Distributed During Strike May Survive Anti-SLAPP Motion.

Posted on May 16, 2013 by Mark Mellor

Road Machinery’s union went on strike. Jim Price, a vice president of the company did not have any role in the negotiations with the union. Yet, the union placed flyers on his neighbors’ doors, reading things like “Neighbors, beware of this man, Jim Price.” He sued the union for defamation. The Court of Appeal affirmed the trial court’s denial of the union’s anti-SLAPP motion. The court held that the flyers were not of public interest, Price was not a public figure, and the flyers were solely personal attacks on him. Therefore, the flyers were not speech protected under the statute. Price v. Operating Engineers Local Union No. 3 (Cal. App. Third Dist.; May 20, 2011) 195 Cal.App.4th 962, [125 Cal.Rptr.3d 220, 2011 DJDAR 7321].

Posted in Anti-SLAPP Law News, Appellate Law News, First Amendment Law News, Legal News | Tagged 125 Cal.Rptr.3d 220, 195 Cal.App.4th 962, 2011 DJDAR 7321, affirmed, anti-SLAPP, apartment, bargaining, beware, cause of action, company, court, Court of Appeal, defamation, denial, distributed, doors, false light, flyer, flyers, Flyers Unrelated To Labor Dispute Distributed During Strike May Survive Anti-SLAPP Motion, free speech, furtherance, Jim Price, labor disputes, lawsuit, machinery, manager, Motion, negotiations, neighbors, number of people, ongoing, Operating Engineers Local Union No. 3, oral statement, personal attacks, placed, prevailing, price, privacy, probability, Protected, protected activity, public figure, public interest, public issue, public participation, reading, right of petition, rights of petition, Road Machinery’s, role, speech, statute, strike, sued, target, threshold, trial court’s, Union, union’s, vice-president, “handbilling” | Leave a comment

Supreme Court Expands Attorney Duties To Previously Represented Client.

Posted on May 15, 2013 by Mark Mellor

In an earlier case, Oasis West Realty LLC v. Goldman, the court of appeal held that a lawyer who had previously represented the plaintiff in a real estate permit application was not precluded from later engaging in political activity opposing the permit. The California Supreme Court reversed in Oasis West Realty LLC v. Goldman (Cal.Supr.Ct.; May 16, 2011) 51 Cal.4th 811, [250 P.3d 1115, 124 Cal.Rptr.3d 256, 2011 DJDAR 6980]. An anti-SLAPP motion by the defendant-lawyer should be denied because it may be inferred the lawyer used confidential information gained during his representation in engaging in opposition to the permit. The First Amendment did not entitle him to engage in political action in opposition to the former client.

Posted in Anti-SLAPP Law News, Attorney-Client / Attorney Work Product Law News, California Supreme Court Law News, First Amendment Law News, Legal News | Tagged 124 Cal.Rptr.3d 256, 2011 DJDAR 6980, 250 P.3d 1115, 51 Cal.4th 811, allowance, anti-SLAPP, application, attorney-client, breach of contract, Breach Of Fiduciary Duty, california supreme court, cause of action, confidence, confidential, confidential information, confidentiality, Court of Appeal, denied, depreciation, developer, during, duties of loyalty, engage, engaging, entitle, fiduciary, First Amendment Law News, former client, gained, Goldman, held, inasmuch, inferred, information, law firm, lawsuit, Lawyer, loyalty, Motion, not precluded, Oasis West Realty, Oasis West Realty LLC, Opposing, opposition, overturn, permit, political action, political activity, prevailing, previously, prior representation, probability, professional negligence, prong, protected speech, public issues, Real Estate, redevelopment project, referendum, referendum petition, representation, represented, reversed, signatures, Supreme Court Expands Attorney Duties To Former Client | Leave a comment

Attorneys May Not Prohibit Client From Settling Without Their Consent.

Posted on May 15, 2013 by Mark Mellor

A client has the right to abandon a suit without the lawyer’s consent. Therefore public policy voids a provision in a contingency fee contract that prohibits the client from settling the case without the consent of the lawyer. In Lemmer v. Charney (Cal. App. Second Dist., Div. 8; May 5, 2011) 195 Cal.App.4th 99, [125 Cal.Rptr.3d 502, 2011 DJDAR 6494], the client agreed to a “walk away” settlement. The lawyer sued for fees under a contingent fee contract, alleging that the client defrauded him. The trial court sustained defendant’s demurrer and the Court of Appeal affirmed.

Posted in Appellate Law News, Attorney's Fees News, Attorney-Client / Attorney Work Product Law News, Contract Law News, Legal News | Tagged 125 Cal.Rptr.3d 502, 195 Cal.App.4th 99, 2011 DJDAR 6494, abandon, affirmed, Agreed, alive, alleging, attorney fees, attorney-client, Attorneys May Not Prohibit Client From Settling Without Their Consent, Case, case to trial, causes of action, Charney, client, commit, consent, conspiracy, constrain, constrained, contingency fee, contingent fee contract, contract, Contractual, Court of Appeal, defendants, defraud, defrauded, demurrer, fee agreement, fees, fraudulent, fraudulently, inducing, intentional interference, interfered, lawsuit, Lawyer, lawyers, leave to amend, Lemmer, prohibits, prospective advantage, prospective economic advantage, provision, public policy, resulting damage, right, settle, settlement, settling, sued, Suit, sustained, trial court, unwanted, voids, walk, without, “walk away” | Leave a comment

Disabled Placard, Or License Plate? Try To Figure This One Out!

Posted on May 14, 2013 by Mark Mellor

Vehicle Code section 22511.5, permits unrestricted parking for vehicles with a disabled placard, or license plate, even when there are signs limiting parking time. So far, so good. But what if there are no signs but only a municipal ordinance limiting parking time? This was the issue in Spicer v. City of Camarillo (Cal. App. Second Dist., Div. 6; May 31, 2011) 195 Cal.App.4th 1423, [125 Cal.Rptr.3d 357, 2011 DJDAR 7803]. Incongruous as the result may appear to be, the court used appropriate tools of statutory interpretation to conclude that, if there is a sign noting a time limit for parking, disabled persons with properly marked vehicles may ignore it, but, if there is no sign, they must abide by the time limit.

Posted in Appellate Law News, Discrimination Law News, Government Law News, Legal News, Public Entity Law News | Tagged 125 Cal.Rptr.3d 357, 195 Cal.App.4th 1423, 2011 DJDAR 7803, abide, amount of time, appropriate, City of Camarillo, conclude, consecutive hours, court, disabled, disabled persons, disabled placard, displaying, equal protection, erected, highway, Ignore, Incongruous, legislative intent, length of time, license plate, limiting, local ordinance, mile, motorist, municipal ordinance, necessarily means, no sign, notice, noting, ordinance, parked, parking, parking time, Permits, placard, police officer, posted, properly marked, question of law, res judicata, result, section 22511.5, sign, signs, Spicer, statute's purpose, statutory interpretation, street, time limit, time-limiting, tools, Try to figure this one out, unlimited, unrestricted, used, Veh. Code § 22511.5, Veh.Code, Vehicle Code, Vehicle Code section 22511.5, vehicles, windshields, § 22511.5 | Leave a comment

Court May Not Deny Custodial Parent Permission To Move.

Posted on May 14, 2013 by Mark Mellor

When a parent seeks to move away from the area where the other parent, with joint custody, resides, the court should not determine whether that custodial parent is permitted to move. Rather the inquiry should assume the custodial parent will move and determine, using the child’s best interest as a guide, whether the move should require a change in custody. Mark T. v. Jamie Z. (Cal. App. Fourth Dist., Div. 1; April 28, 2011) 194 Cal.App.4th 1115, [124 Cal.Rptr.3d 200, 2011 DJDAR 6041].

Posted in Appellate Law News, Children Law News, Divorce Law News, Family Law News, Legal News | Tagged 124 Cal.Rptr.3d 200, 194 Cal.App.4th 1115, 2011 DJDAR 6041, area, assume, bad faith, bad faith conduct, best interest, best interests, change in custody, child support, child’s, court, Court May Not Deny Custodial Parent Permission To Move, custodial parent, Custody, custody arrangement, custody determination, custody order, determine, dissolution, from, frustrate, guide, inquiry, Jamie Z., joint custody, legal standard, loves, Mark T., minor child, minor children, modification, move, move away, noncustodial, novo, other parent, parent, parenting, Permitted, physical custody, primary caretaker, recommendation, relocate, relocating, relocation, requesting, require, resides, seeks, should, status quo, temporary, visitation | Leave a comment

Attorneys Cannot Recover Fees Representing Themselves In Breach Of Contract Action.

Posted on May 13, 2013 by Mark Mellor

When their insurer initially refused to defend an action, the insureds, who are attorneys, defended the action in pro per. They subsequently sued the insurer for the value of the attorney services they provided. The trial court granted summary judgment to the insurer. The Court of Appeal affirmed. The insureds did not sustain damages because they did not “incur” any attorney fees. Richards v. Sequoia Insurance Co. (Cal. App. First Dist., Div. 3; May 10, 2011) 195 Cal.App.4th 431, [124 Cal.Rptr.3d 637].

Also see, Carpenter & Zuckerman v. Cohen (Cal. App. Second Dist., Div. 5; May 10, 2011) 195 Cal.App.4th 373, [124 Cal.Rptr.3d 598, 2011 DJDAR 6665]. Where law firm used one of its associates to represent it in litigation, it was not entitled to attorney fees.

Posted in Appellate Law News, Attorney's Fees News, Contract Law News, Insurance Law News, Legal News | Tagged 124 Cal.Rptr.3d 598, 124 Cal.Rptr.3d 637, 195 Cal.App.4th 373, 195 Cal.App.4th 431, 2011 DJDAR 6665, 2011 DJDAR 6729, action, affirmed, associates, attorney, attorney fees, Attorneys, Attorneys Cannot Recover Attorney Fees Representing Themselves In Breach Of Contract Action., attorneys’ fees, business opportunities, Carpenter & Zuckerman, Cohen, compensate, contract damages, Court of Appeal, covenant, coverage, damages, defend, defended, distress, duty to defend, economic loss, emotional, entitled, expended, fair dealing, good faith, granted, insurance contract, insured, insureds, insurer, issues of material fact, law firm, lawsuit, legal expenses, litigation, obligated to pay, one, owed, pro per, propria persona, provided, reasonable expectation, Refused, represent, Richards, Sequoia Insurance Co., services, settlement, subsequently, sued, Summary judgment, sustain, tender of defense, trial court, underlying action, used, value, “incur” | Leave a comment

Reviewing Opponent’s Privileged Documents May Lead To Attorney Disqualification.

Settlement Offers To Compromise Under Code of Civil Procedure Section 998, Must Conform To Statute.

With Class Action Waiver Under Federal Arbitration Act State May Not Refuse To Enforce Arbitration Contract.

Attorney Fees Are Included In “Costs” In Section 998 Settlement Offer.

Flyers Unrelated To Labor Dispute Distributed During Strike May Survive Anti-SLAPP Motion.

Supreme Court Expands Attorney Duties To Previously Represented Client.

Disabled Placard, Or License Plate? Try To Figure This One Out!

Court May Not Deny Custodial Parent Permission To Move.

Attorneys Cannot Recover Fees Representing Themselves In Breach Of Contract Action.

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