Long & Levit Lawyers and Judges Defense Blog

Summarizing, explaining and commenting on legal developments impacting California Lawyers and Judges

May 3, 2016

J-M Manufacturing Co. Inc., v. Phillips & Cohen LLP, (2016) 247 Cal.App.4th 87

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The Second District holds a press release reporting a trial result is privileged under C.C. §47(d), a fair and true report of an official proceeding. 

J-M, a manufacturer of PVC pipes used in underground water systems, was sued by Phillips & Cohen’s clients for false claim act violations.  J-M represented its pipes met industry standards established by the American Water Works Association (AWWA) and the Underwriters Laboratories (UL) for long-term strength and durability.  Phillips & Cohen alleged J-M falsely claimed all its pipes met the standards and were manufactured in a substantially identical manner to a pipe originally determined to comply with the standards.   Phillips & Cohen introduced evidence J-M had altered its manufacturing process to meet increased production goals and paid employee bonuses to achieve these goals. Phillips & Cohen emphasized this was not a products liability case and it did not need to show the pipes had failed.  The jury agreed J-M falsely represented uniform compliance with the industry standards.

After this phase of the trial Phillips & Cohen issued a press release stating a jury found J-M manufactured and sold substandard plastic pipe used in water and sewer systems which could expose it to potentially billions of dollars in damages.  The release explained the trial was bifurcated between liability and damages.  J-M responded with a complaint for defamation and trade libel alleging the press release was not a fair or accurate report of the proceedings.  … Read full Post

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May 2, 2016

Osborne v. Todd Farm Service 2016 WL 1756753

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The Second District holds an attorney’s violations of pre-trial evidentiary rulings warrant a sanction of dismissal.

Rebecca Osborne retained Glenn Murphy to sue Todd Farm Service and Berrington Custom Hay Stacking and Transport, Inc. (Berrington) when she was injured by a hay bale that unexpectedly gave way as she was tossing it. There was scant evidence that the hay bale was supplied by Berrington, and the broker Todd used multiple hay suppliers.

Murphy failed to timely designate experts, and attempted to remedy this error by serving a “supplemental” designation, which Berrington successfully moved to strike. Motions in limine precluded Osborne from testifying as an expert about the supplier of the hay bale, including her opinion about the geographic origin of the hay bale based on its color and texture, or the manner it was cut, harvested, baled, manufactured, stored and moved. … Read full Post

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April 16, 2016

DP Pham, LLC v. Cheadle (2016) 246 Cal.App.4th 653

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The Fourth District holds a court may not conduct an in camera review of attorney-client communications once the holder of the privilege makes a prima facie showing of privilege.  

Robert Obarr worked closely with his assistant, Christi Torres Galla, and was represented by Attorney Kimes in a variety of matters. Obarr sold a piece of real property to two competing buyers, Pham and Westminster, and became involved in litigation with them on claims and cross-claims.  Cheadle became the representative of Obarr’s estate after his death.

Pham’s counsel received Obarr’s attorney client communications from Galla, but failed to notify Cheadle and used them to oppose a summary adjudication motion. Pham argued Galla voluntarily provided the communications, one of which was not privileged.  Obarr and Cheadle had waived the privilege by disclosing them to third parties, by failing to reasonably try to preserve the privilege, and by putting the communications at issue.  Cheadle objected to the communications and sought Pham’s counsel’s disqualification.  … Read full Post

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March 28, 2016

Radcliffe v. Hernandez (9th Cir. 2016) 818 F.3d 537

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The Ninth Circuit holds courts need not apply conflict of interest automatic disqualification rules applicable to individual litigant cases in class actions in favor of a more flexible “balancing of interests” approach.

“White Plaintiffs,” named class members, were represented by “White Counsel.”  A different set of class representatives in a related separate case, the “Hernandez Plaintiffs,” were represented by “Hernandez Counsel.”  Hernandez Counsel was appointed lead counsel after the cases were consolidated.

A proposed settlement included incentive awards for each named class representative who did not object to the settlement. White Counsel asserted the incentive settlement awards created a conflict of interest between the class representatives and the absent class members. In a prior appeal the Ninth Circuit agreed, because the incentive award motivated the class representatives to maximize receipt of an incentive award over protecting absent class members.  The conflict extended to class counsel, who simultaneously represented clients with conflicting interests.  … Read full Post

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March 17, 2016

Costello v. Buckley (2016) 245 Cal.App.4th 748

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The Fourth District holds disqualification is proper in successive representation cases even if the matters have no substantial relationship to each other where the client proves the attorney actually received confidential information in the prior representation that is or could be pertinent to the later representation.

Robert Buckley represented Leslie Costello in an easement dispute with her neighbor. Leslie was dating Robert’s brother Peter, and she shared confidences with Robert about her relationship with Peter.  When Leslie and Peter split, Robert offered to withdraw as counsel in the dispute with the neighbor, but Leslie elected to continue with his representation.

Sometime later Leslie sued Peter to recover money she had loaned him. Peter retained Robert who served Leslie with requests for admissions demanding she admit she gave Peter money with no expectation of repayment due to their romantic relationship.  Leslie moved to disqualify Robert because he had acquired confidential information in the previous representation he could use against her.  … Read full Post

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March 17, 2016

Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176

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The Supreme Court holds inadvertent disclosure of attorney-client privileged and work product protected documents pursuant to a Public Records Act request does not constitute waiver, and the claw back rules of inadvertently disclosed documents apply.

Plaintiff filed a class action lawsuit against Defendant City challenging the validity of a certain tax and seeking a refund. The trial court agreed when the City refused to produce certain documents as covered by the attorney-client privilege and work product protection.  Several years later Plaintiff requested similar documents outside the litigation process utilizing the Public Records Act.  After the City Administrative Officer provided documents the Plaintiff’s attorney notified the City’s attorney that she had acquired several documents that appeared to match those on the original privilege log.

The City responded that the documents were inadvertently disclosed, asked they be returned and that Plaintiff not rely on them. Plaintiff refused claiming waiver.  The trial court denied City’s motion for return of the documents, concluding the City had waived any privilege.  … Read full Post

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February 2, 2016

Uecker v. Zentil (2016) 244 Cal.App.4th 789

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The First District holds a bankruptcy trustee cannot assert claims against an attorney precluded by the doctrine of unclean hands.

MF’08 was a limited liability company whose sole managing member was another limited liability company dominated by Walter and Kelly Ng. Dennis Zentil represented MF’08.  MF’08 promised investments in secured real estate loans, but in reality the funds were transferred to the Ngs.  Zentil allegedly knew of MF’08’s fraudulent purpose and worked with the Ngs to conceal the true nature of its asset transfers.

MF’08’s liquidating bankruptcy trustee filed tort claims based on fraud against Zentil. The Court of Appeal affirmed the trial court’s sustaining of a demurrer without leave to amend based on the in pari delicto, or unclean hands, doctrine.  … Read full Post

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January 11, 2016

Kelly v. Orr (2016) 243 Cal.App.4th 940

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The Fourth District holds a successor trustee’s suit against counsel was timely because it was filed within one year of termination of the attorney-client relationship with the predecessor trustee.

James Kelly was the successor trustee of the Beverly Snodgrass Clark Intervivos Trust. He sued attorneys Barbara Orr, Joseph Holland, Gretchen Shaffer and the law firm DLA Piper LLP, attorneys for the predecessor trustee, Rebecca Clark.  The attorneys demurred arguing the action was barred by the one year statute of limitations, Code of Civil Procedure § 340.6.

Clark had seized control of the trust from a prior trustee. To settle litigation over control of the trust, Clark resigned as trustee and Kelly replaced Clark.  Kelly sued Clark’s attorneys less than a year later, alleging they negligently advised Clark about her authority as trustee and trust tax obligations.    … Read full Post

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December 30, 2015

Kemper v. County of San Diego 2015 WL 9480476

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The Fourth District holds a parent who would have lost custody of her child despite alleged errors and omissions by her counsel could not show causation in a legal malpractice claim

Johnneisha Kemper was represented by appointed county attorneys when she lost custody of her child. Another attorney from the same office believed prior attorneys had committed error by waiving Kemper’s right to appointment of a guardian ad litem for herself as a minor, and recommended outside counsel.  However, the same office continued to represent plaintiff in a new petition to regain custody, which was denied.  The court found Kemper should have had a guardian ad litem in the original proceeding, but that the best interests of the child dictated Kemper not regain custody.

Kemper appealed based on claims of ineffective assistance of counsel in the initial proceeding. The Court of Appeal agreed that the juvenile court should have appointed guardian ad litem, and this may have changed the outcome, but the trial court’s decision a change of custody was not in the child’s best interests was within its discretion.  However, the Court found there was no evidence that the initial attorney had no rational tactical purpose for waiving a guardian ad litem, and Kemper could not establish ineffective assistance of counsel.  Further, there was no evidence that had the initial attorneys handled the case differently the outcome would have been different.  The Court observed that ultimately it was Kemper’s living circumstances and failure to reunify with her child that led to the custody decision. … Read full Post

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December 30, 2015

M’Guinness v. Johnson (2015) 243 Cal.App.4th 602

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The Sixth District holds a law firm’s open-ended agreement, evergreen retainer, and control over corporate records indicated a concurrent attorney-client relationship with a corporate client, and disqualification in a shareholder dispute was proper.

James M’Guinness, Steven Johnson, and Scott Stuart each owned one-third of the outstanding stock of TLC, and each was an officer and director of the corporation. In a shareholder dispute, the operative pleadings were a complaint filed by M’Guinness against Johnson, Stuart, and TLC; a cross-complaint filed by Johnson against M’Guinness and Stuart; a cross-complaint filed by Stuart against Johnson and TLC; and a cross-complaint filed by TLC against M’Guinness, Johnson, and Stuart for declaratory relief.

M’Guinness, Stuart, and TLC moved to disqualify Johnson’s attorneys, Casas, Riley & Simonian (Casas), because it concurrently represented TLC. Johnson asserted the representation terminated more than a year prior to the dispute, and was unrelated to the dispute.  … Read full Post

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