Case Summaries

Attorney's Fees

[01/05] Marriage of Sorge
In an appeal from a judgment of the trial court modifying a child support award and imposing sanctions with an award of attorney's fees, judgment is reversed where the fiduciary duty to disclose material changes in income ends upon entry of a divorce decree, but affirmed otherwise.

[01/03] MarcTec, LLC v. Johnson & Johnson
In a case in which a patent holder's infringement case was dismissed on summary judgment and the district court subsequently granted the defendants' motion for an award of attorney's fees and expert witness fees, judgment is affirmed where: 1) the district court did not err in declaring the case "exceptional" under 35 U.S.C. section 285 and finding that the patent holder's claims were brought in bad faith and were objectively baseless, and that the patent holder engaged in litigation misconduct; and 2) the district court did not abuse its discretion in awarding expert fees because the patent holder's vexatious conduct and bad faith increased the cost of litigation in ways that were not compensated under 35 U.S.C. section 285.

[12/28] Portico Management Group, LLC v. Harrison
In an appeal from a judgment of the trial court denying plaintiff's motion to enforce an arbitration award against a trust and awarding successor trustees post-arbitration attorney fees as prevailing parties, judgment is affirmed where the trial court correctly held that it was improper to enter judgment against the trust, but reversed where it erred in denying plaintiff's motion to join a trustee as a defendant on an alter ego theory.

[12/22] Patrick v. Shinseki
In a case in which a widow of a deceased veteran had prevailed on a claim for dependency and indemnity compensation from the Department of Veterans Affairs and then sought an award of attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), judgment of the United States Court of Appeals for Veterans Claims denying her EAJA application is reversed and remanded for a determination of whether, in light of the totality of the circumstances, the government carried its burden of demonstrating that its position opposing the compensation award was substantially justified.

[12/21] Aleman v. AirTouch Cellular
In an appeal from a judgment of the trial court dismissing plaintiffs' complaint for labor and wages violations, judgment is: 1) affirmed because plaintiff was not entitled to receive reporting time pay for attending meetings at work, where all the meetings were scheduled and plaintiff worked at least half the scheduled time; and 2) affirmed as he was not owed additional compensation for working split shifts, where on each occasion he worked a split shift he earned more than the minimum amount required by a wage order; but 3) reversed on the trial court's award of attorney fees to the defendant since plaintiffs' claims were subject to Labor Code section 1194.

[12/20] UMG Recordings, Inc. v. Shelter Capital Partners LLC
In an appeal from an order of the district court granting defendant's motion for summary judgment on plaintiff's complaint for direct and secondary copyright infringement against a public website offering streaming music videos, judgment is: 1) affirmed where defendant is entitled to Section 512(c) safe harbor protection of the Digital Millennium Copyright Act (DMCA) and where the district court correctly concluded that Rule 68 attorney’s fees were inappropriate; but 2) remanded for the court to consider in the first instance whether defendant is entitled to Rule 68 costs, excluding attorney’s fees.

[12/16] Kumar v. Yu
Judgment of the trial court on plaintiff's complaint for breach of a property lease agreement is reversed as to the award of attorney's fees, but affirmed in all other respects.

[12/09] Cargill v. Souza
In an appeal from a judgment of the trial denying defendant's motion for attorney's fees as a prevailing party in an action to enforce a transfer agreement, judgment is reversed where the court incorrectly held that the relevant attorney fees provision did not apply to third party beneficiaries because had plaintiff prevailed, it would have been entitled to such fees as a third-party beneficiary.

[12/01] Plasterers' Local Union No. 96 v. Pepper
In an appeal from a judgment of the district court in favor of plaintiff-trustees in an action for breach of fiduciary duty under the ERISA, judgment is reversed where the court erred in its determination of liability, its method of calculating damages, and the award of attorneys' fees.

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Ethics & Disciplinary

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Legal Malpractice

[05/05] In Re: Teligent, Incorporated
In a dispute arising from an action for legal malpractice, judgment of the district court denying motion to lift bankruptcy protective orders and cross-motion for injunctive relief barring defendant from attacking the validity of a settlement agreement on the grounds of waiver is affirmed where: 1) defendant-law firm failed to make the requisite showing to lift orders; and 2) it was not a party in interest with standing such that its failure to contest the validity of settlement agreement constituted waiver.

[04/19] Callahan v. Gibson, Dunn and Crutcher
In a dispute alleging professional malpractice arising from the drafting of a deficient partnership agreement by the defendant, summary judgment on the ground that action was time-barred is reversed because placement of actual injury upon the execution of the defective agreement was erroneous where CCP section 340.6 (a)(1), tolled the limitations period until plaintiff could establish a cause of action for legal malpractice.

[04/13] Knopick v. Connelly
In a dispute arising from a legal malpractice claim and the timeliness of underlying tort action, summary judgment in favor of defendant on the ground that action was time-barred is reversed where district court failed to apply the discovery rule to underlying claim, and there was a genuine issue of fact prohibiting summary dismissal.

[03/04] Augusta v. Keehn and Associates
In a civil action alleging legal malpractice, order denying petition by plaintiff to compel arbitration of action is affirmed, as it is supported by substantial evidence.

[01/13] Cassel v. Superior Court
In plaintiff's malpractice action against his attorneys, claiming that by bad advice, deception, and coercion, the attorneys, who has a conflict of interest, induced him to settle for a lower amount than he had told them he would accept in the underlying action, the court of appeals' judgment vacating the trial court's grant of defendant attorneys motion to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and defendants' efforts to persuade plaintiff to reach a settlement in the mediation, is reversed where: 1) the result reached by the court of appeals contravenes the Legislature's explicit command that, unless the confidentiality of a particular communicative is expressly waived, under statutory procedures, by all mediation "participants," or at least by all those "participants" by or for whom it was prepared, things said or written for the purpose of and pursuant to a mediation shall be inadmissible in any civil action; 2) as the statutes make clear, confidentiality, unless waived, extends beyond utterances or writings in the course of a mediation, and thus is not confined to communications that occur between mediation disputants during the mediation proceeding itself, and by holding otherwise, and overturning the trial court's exclusionary order, the court of appeal erred.

[01/11] Warrior Sports, Inc. v. Dickinson Wright, P.L.L.C.
In a patent owner's malpractice action against a law firm, arising from an underlying patent infringement litigation involving patents directed to lacrosse sticks and heads, district court's dismissal of the suit for lack of jurisdiction is vacated and remanded as, because at least one of plaintiff's malpractice claims requires the court to resolve a substantive issue of patent law, 28 U.S.C. section 1338, which grants district courts exclusive jurisdiction over cases arising under a statute relating to patents, invests the district court with subject matter jurisdiction over the plaintiff's claims in this case.

[12/08] Hall v. Kalfayan
In plaintiff's suit for legal malpractice, claiming that the attorney's failure to timely perform his duties had deprived him of the majority of a testator's estate, trial court's grant of the attorney's motion for summary judgment on the ground that the attorney owed no duty to plaintiff, who was not his client and not the beneficiary of an executed estate plan, is affirmed as a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator.

[11/30] Dang v. Smith
In plaintiff's legal malpractice action against her former attorneys and their firm, who had represented plaintiff in obtaining and attempting to collect a judgment against two men who purchased a bakery business from her and then defaulted, claiming that defendants failed to record a judgment lien against real property in which one of the judgment debtors held an interest as joint tenant, trial court's grant of defendants' motion for summary judgment is affirmed as plaintiff made no attempt to demonstrate, by proposed pleading, declarations, or otherwise, that she could truthfully plead, let alone prove, the elements of a cause of action on any of her new three theories. Further, because plaintiff at no time moved, or even asked the court, for leave to amend her complaint, plaintiff's argument that the trial court erred by failing to grant leave to amend is rejected not only because it is procedurally insupportable, but because none of the proposed new theories appears to be substantively viable.

[08/26] Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.

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Professional Malpractice

[12/08] Creekmore v. Maryview Hospital
Medical malpractice judgment is affirmed where the plaintiff's expert witness is found to be qualified to testify as to the standard of care under state law because he performs the same procedure in the same context at issue.

[11/15] Khodayari v. Mashburn
In an appeal from a judgment of the district court dismissing appellant's tort complaint against his former counsel in postconviction proceedings, judgment is affirmed where the complaints sounds in legal malpractice such that appellant's failure to show actual innocence of the concerned probation violations and to obtain post-violation exoneration of those violations support the trial court's dismissal.

[10/20] Simon v. Usher
In an appeal from a judgment of the appellate division reversing the trial court's grant of defendant's motion to change venue in a medical malpractice action, judgment is reversed where the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) when a defendant serves its demand for change of venue by mail.

[10/18] Smith v. Cimmet
In an appeal from a judgment of the trial court dismissing a legal malpractice action brought by a successive estate representative on the ground that the representative lacked standing because he was never a client of the defendant-attorneys, judgment is reversed where: 1) an Oregon representative lacks capacity to sue in California because his authority does not extend beyond Oregon but may seek relief through an ancillary appointment by the California courts; and 2) under both California and Oregon statutory law, plaintiff has standing to sue attorneys who were retained by his predecessor to act on the estate's behalf.

[10/04] Liggon-Redding v. Estate of Sugarman
In a suit by pro se plaintiff alleging that defendant committed legal malpractice while representing her in a medical malpractice case in state court by failing to retain an expert, the District Court's dismissal of the complaint is reversed where: 1) Pennsylvania Rule of Civil Procedure 1042.3, requiring the filing of a Certificate of Merit in malpractice cases, is substantive law that federal courts must apply under Erie v. Tompkins, 304 U.S. 64 (1938); and 2) appellant did comply with this substantive law.

[09/22] Shugart v. Regents of U.C.
In an appeal from a judgment of the trial court granting summary adjudication in favor of the defendants in an action for medical negligence, judgment is affirmed where trial court correctly entered judgment in favor of the Regents because plaintiffs failed to raise a triable issue of fact as to the claims against these defendants, but reversed with respect to defendant-doctor because plaintiffs' expert declaration was admissible and raised triable issues as to defendant's alleged medical negligence.

[06/02] Collins v. Sutter Memorial Hospital
In an action for medical malpractice, judgment of the trial court granting plaintiff a new trial after vacating a defense summary judgment is affirmed, where order was timely under Code of Civil Procedure section 660 and based on proper grounds.

[05/26] Simke, Chodos, Silberfeld and Anteau, Inc. v. Athans
In a dispute arising from an action for breach of a contingency fee agreement, judgment of the trial court awarding attorney fees after entry of a default judgment for discovery violations is affirmed because a complaint does not have to specify, by dollar amount, the attorney fees that will be incurred and sought in a case ultimately resolved by a default judgment entered as a discovery sanction.

[05/05] In Re: Teligent, Incorporated
In a dispute arising from an action for legal malpractice, judgment of the district court denying motion to lift bankruptcy protective orders and cross-motion for injunctive relief barring defendant from attacking the validity of a settlement agreement on the grounds of waiver is affirmed where: 1) defendant-law firm failed to make the requisite showing to lift orders; and 2) it was not a party in interest with standing such that its failure to contest the validity of settlement agreement constituted waiver.

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