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Published Appellate Cases, California State and Federal Courts
Cases Pending at California Supreme Court
Cases Pending at United States Supreme Court
APRIL 2007 - MAY 2007
U.S. v. Lenihan USCA 9th Cir 5/30/07
Lenihan waived his right to counsel and pled guilty to misdemeanor domestic violence. Trial judge advised him of right to counsel and consequences re his right to carry a firearm. He was subsequently convicted of possession of a firearm by a person convicted of domestic violence. He appealed based on lack of knowing and intelligent waiver in the domestic violence conviction. Appeal denied, because he was in fact advised of the exact potential consequence.
NASD Dispute Resolution, Inc. v. Judicial Council of State 9th Circuit Filed
5/30/07
NASD sued the Council and its individual members in federal court, seeking a declaratory judgment that (1) federal securities law preempted the California standards, (2) the California standards could not constitutionally be applied to the stock exchanges' arbitration programs, and (3) under state law the California standards did not cover NASD or NYSE arbitrations. The district court dismissed the suit, not on its merits but on a finding that the Eleventh Amendment barred suit in Federal Court against the Judicial Council.
NASD appealed. Before the appeal was heard, the court held in two other cases that federal securities law did preempt the California standards. The parties agree that the appeal was rendered moot. NASD sought vacatur; Judicial Council opposed because it wanted to maintain the published case language that Judicial Council members are immune from lawsuits in federal court.
Vacatur is generally automatic when a case becomes moot on appeal. But the Court must also consider the public interest, and may decide not to vacate in special circumstances. The 9th Circuit concluded that vacatur was appropriate in this case because the case would remain published, but would be vacated "on other grounds." District court cases are not citable for binding precedent.
When a published case is vacated on other grounds, it can still be cited for its persuasive weight.
People v. Robinson Cal. App. 3d Dist. 5/29/07
Defendant whose competency was at issue sought to represent himself. Court appointed expert to evaluate him, did not appoint counsel. Defendant was convicted and sentenced to 26 years to life in prison. Reversed and remanded because defendant has the right to assistance of counsel in competency hearing.
Carpenter v. Jack in the Box Ca. App. 2nd Dist The issue was whether a motion for attorneys fees and costs by the prevailing party on a special motion to strike under CCP 425.16 [c], was filed timely under California Rules of Court. rules 3.1702 and 8.104. After defendants appealed the order denying the special motion to strike, the trial court's order was affirmed on appeal on 4-26-05.
After issuance of remittitur on 9-16-05, plaintiff filed the motion for fees and costs. Held, a motion for fees incurred in re a prejudgment appealable order is a claim for services rendered before, not "up to and including rendition of judgment" and time limit for filing did not start running until judgment was entered at
conclusion of litigation.
People v. Gunder Cal. App. 3rd Dist. 5/25/07
A witness in a murder trial claimed that he had no recall of events which were the subject of his statements previously made to police. Admission of the videotape and transcript of prior interviews did not constitute a violation of defendant's right to confrontation, where witness was cross-examined as to lack of recollection, and jury had opportunity to observe his demeanor on the witness stand and in the prior interviews.
Gama Puga v Gonzalez USCA 9th Cir 5/24/07
Gama Puga's first attorney filed a bare bones petition for asylum, without any supporting facts. He then withdrew application and filed for cancellation of removal, which was denied. On habeas petition. His second attorney argued ineffective assistance of counsel, dismissed for lack of jurisdiction, and Gama Puga was removed. 9th Circ. Affirmed. Proper ineffective assistance of counsel motion is made to BIA as a motion to reopen. Gama Puga thus did not exhaust remedies in BIA, a jurisdictional requirement for habeas petition to C.A.
Foote v Del Papa 9th Cir. filed 5/22/07
Criminal defendant Foote filed civil complaint alleging conflict of interest vs. his public defender. Public defender withdrew; private counsel represented Foot through his conviction of battery and sexual assault. Private counsel withdrew, requested Public defender represent Foote on direct appeal. After appeal denied, Foote filed habeas petition alleging prior conflict constituted denial of Sixth Amendment right to counsel on appeal. Habeas denied because no precedent for a Sixth Amendment claim based on "irreconcilable differences" with appointed counsel on appeal.
Winkelmore v Parma City School Dist filed 5/21/07 USSC
The IDEA (Individuals with disabilities Education Act) permits non-lawyer parents to prosecute claims on behalf of their child and on their own behalf without counsel. They may receive reimbursement from slate agency and attorney fees as parent of a child with a disability.
Montes-Lopez v Gonzales USCA 9th Circuit filed 5/17/07
Montes-Lopez claimed that he was denied right to counsel. IJ at hearing interrogated him regarding his appearance without counsel, Otto Pena, who had written to a letter explaining he could not appear due to his disciplinary suspension. IJ then gave short shrift to substantive issues, denied asylum noting that Montes-Lopez was not credible and attempted to delay proceedings. BIA summarily affirmed IJ. 9th Circuit reversed and remanded-BIA must perform an actual review of hearing below, not a rubberstamp.
People v Cervantes ( Cal App 2nd Dist) 5/16/07
Cervantes was convicted of drug crimes and sought to appeal. Court Reporter was unable to provide transcript of trial testimony. The Public defender was no longer with the office, the trial judge had no recollection, and the DA's settled statement draft differed from transcribed closing argument by public defender. Court nonetheless approved settled statement. The Court of Appeal remanded to determine if former Public defender could be located. If not, case would be remanded for new trial.
Davis v O'Melveny 9th Circuit filed 5/14/07
O'Melveny is a law firm that published a comprehensive arbitration program for all employer and employee disputes. The 9th Circuit found it to be unconscionable, based on precedent in labor law and contract law. One issue was the exception from arbitration, if the law firm sought an injunction to protect attorney client confidential information. If the clause were strictly limited to attorney client confidential information of the law firm's clients, it might or might not be valid; that issue is reserved for another day, and there are no California Court cases on the subject. However, California case law says that broad protections of confidential information in other settings is not itself a justification for exempting from arbitration, that kind of provisional remedy.
Lambright v Schriro 9th Circuit filed 5/11/07
In a capital case, the only mitigation witness that counsel called was a guard from the jail. He did not explore the indicia of mental illness by the defendant, nor other relevant factors such as drug abuse and an abusive childhood. This amounted to ineffective assistance of counsel and the case is remanded for further hearing.
Matter of MacKenzie State Bar Review Department filed 5/11/07
Under B & P 6140.7, the petitioner for reinstatement has to pay all accrued disciplinary costs, unless there is an order of extension. Under Rule 662 of the Rules of procedure, such costs have to be paid before the petitioner can file a reinstatement. MacKenzie did not allege payment of the cost when he filed his petition. Fifteen months after he filed, the State Bar moved to dismiss, based on the non-payment. The hearing judge granted the motion. Petitioner then paid the cost and moved for an order setting aside the dismissal, which the judge denied. Rules can be directory or jurisdictional. If Rule 662 were jurisdictional, it would therefore be in violation of the statute, which would be improper. By construing it as directory, however, the rule can survive along with the statute. Thus the hearing judge had the discretion to consider the motion to reinstate his petition.
Whitaker v Garcetti 9th Circuit filed 5/10/07
The LA Police Department obtained wire tap consent, and used the wire taps to develop evidence of criminal behavior by people other than the wire targets. One of those was attorney Whitaker. He is entitled to sue the individual police officers and District Attorney personnel who did so.
Hutton v Hafif Cal Court of Appeal filed 5/3/07
In a previous law suit by Hafif against Hutton, Hutton moved for summary judgment and lost. Ultimately however, she won the lawsuit. In this lawsuit, she sues Hafif for malicious prosecution. Denied. The earlier denial of summary judgment establishes probable cause to bring the lawsuit, which in turn defeats the current malicious prosecution action. Since this is a malicious prosecution suit that can be subject to a SLAPP back, an attorney fee award is discretionary, not mandatory. The trial judge denied attorney fees and acted within its discretion.
Fergus v Sanger Cal Court of Appeal filed 5/3/07 DJDAR 6289
Fergus represents Sanger in a Civil Action against Borden. Their attorney fee contract did not comply with B & P 6147, so Sanger is entitled to quantum meruit. However, separate agreement between Fergus and Ms. Sanger over
management of the hotel is not controlled by that statute. Therefore she can seek contract damages.
Canatella v Van De Kamp 9th Circuit filed 5/3/07
Canatella is a disciplined attorney. He sues the State Bar for defamation, based on its description of him on its website. Held, the cause of action arose in 2000, when it was posted, and this lawsuit is filed beyond the applicable statute of limitations. Dismissed.
Parent VS v Los Gatos US D 9th Circuit filed 5/9/07
The hearing officer decided that student AO had been denied her legal right to special assistance as a disabled student. That finding triggered the need for the school district to create a plan for AO, and the plan could not be discontinued in the absence of a separate reassessment. Therefore, AO was the prevailing party and entitled to attorney's fees for bringing suit.
USA v Fifield 9th Circuit filed 5/7/07
After Fifield was sentenced, the U.S. Supreme Court decided that Booker, which decrees that sentencing guidelines are advisory rather than mandatory. The case was remanded under Ameline, to determine if the sentence would have been any different if the Judge knew the guidelines were advisory. The trial judge issue on order saying the sentence would have been the same, but failed to seek input from either the prosecutor or defense counsel. The failure to seek that input violated Ameline, and the case was remanded a second time.
U.S. v. Sine C.A. 9th Cir filed 5/1/07
Defendant was convicted in the United States District Court for the Eastern District of California, of mail fraud, and he appealed. The Court of Appeals held that:
(1) prejudice outweighed probativeness as to government's cross-examination incorporating judge's adverse findings in related civil suit concerning defendant's credibility;
(2) admission of judge's adverse findings from related suit also violated hearsay rule;
(3) defendant's assertion of good faith defense to mail fraud charge did not open door to introduction of judge's findings; but
(4) admission of judge's adverse findings did not constitute reversible plain error on theory that it could have caused jury to reject good faith defense; and
(5) admission of judge's adverse findings did not pose undue risk of substituting judge's evaluation for jury's ultimate role of deciding credibility.
Roush v Seagate Cal Court of Appeal filed 4/25/07
Kilgore employed Markowitz to represent him in sex harassment claims against Seagate. He introduced Roush to Markowitz, and she employed him to represent her in her own action against Seagate. Kilgore then fired Markowitz and hired other counsel and sued Seagate. Kilgore then settled with Seagate, and told Seagate's attorneys what he knew about the Roush's case. Roush now seeks to disqualify Seagate's attorney. Roush claims that they were joint clients of Markowitz, and that neither one of them can waive the attorney client privilege for the other. Denied. Seagate's attorney was never Roush's attorney. Therefore, Roush hasthe burden of showing that Seagate's attorney has confidential information, and demonstrate what is material to the present case. She has not done so. Roush and Kilgore were not joint clients. There is not sufficient evidence to show that Roush's disclosure of privileged information to Kilgore was reasonably necessary to advance her own case. Therefore if anything was privilege, the privileged has been waived.
Indyway Investment v Cooper Cal Court of Appeal filed 4/24/07
Indyway is a trust. After trial it filed notice of appeal signed by it's trustee in pro per. Generally speaking, a trustee cannot appear in pro per in litigation. But filing of a Notice of Appeal is not UPL. Indyway solved the problem by securing counsel for the appeal itself.
Hansen v Moore US BAP, 9th Circuit file 4/23/07
Kimberly Hansen, an attorney, filed false petition including, inter alia, a false claim of a mortgage to "IAT Group," actually Hansen's mother, Irene A. Tennant. Based on this and other material omissions and misstatements, discharge was denied for fraud and discovery sanctions under FRCP 37, including attorney fees, were awarded.
In Re Charlisse C Cal Court of Appeal filed 4/23/07
Children's Law Center is divided into three units, kept apart for conflict of interest purposes. Unit Three represents Charlisse C. Unit One formally represented her mother. Unit Two formally represented an older sibling. There is no evidence in this record that the attorneys from Unit Two are still employed by Children's Law Center, nor that the attorney in Unit Three was employed by the Center back then, or has any present access to those client files. Therefore, no DQ.
Matter of Riordan Review Department filed 4/19/07
Riordan was court appointed counsel in the Turner death penalty case. In spite of several court orders to do so, he did not file an opening brief. The fact that he believed that the brief that he prepared was not adequate enough to protect Turner, was not a sufficient defense because he did not make a good faith effort to comply with the Supreme Court's order. Therefore he is culpable for not having a good brief, and for failure to obey the court order to file a brief.
Knight v Ferguson Cal Court of Appeal filed 4/18/07
Knight employed Weidman to help her put together a business deal with Sponder. The business deal didn't work out. She then engaged in a business deal with the Ferguson who employed Weidman as their attorney. The deal went south and Knight now sues Ferguson. A substantial relationship exists between Weidman's former employment by Knight and his present employment by Ferguson, and he is therefore disqualified.
People v Montoya Cal Court of Appeal filed 4/18/07
In criminal cases involving sex offenses against minors, a defense attorney is not require in all cases to seek a taint hearing with respect to the minor. There are no specific facts in this case that would have warranted it, and therefore no ineffective assistant of counsel.
USA v Thrasher 9th Circuit 04/18/07
Thrasher's attorney indicated that he would call Scarlett as a witness in trial, but then did not do so. Thrasher alleges ineffective assistance of counsel. The evidence shows that the decision was a tactical one, based on conversations that the attorney had with Scarlett after the opening statement. Therefore, it is not ineffective.
Online Power v Mazur Cal Court of Appeal filed 4/17/07
Mazur was an executive paid under an employment contract an annual salary of $180,000. He was the prevailing party in a suit for unpaid wages. He is entitled to attorney fees under Labor Code section 218.5. That section is not limited to hourly employees.
Pacific Fisheries v USA 9th Circuit filed 4/17/07
The IRS issued subpoenas for Pacific Fisheries tax record. Pacific Fisheries filed a motion to quash. USA withdrew the subpoena. Since this was a prelitigation subpoena, and not a litigation subpoena, the standard for an award of attorney is higher. Pacific Fisheries did not meet the higher standard, and is thus not entitled to attorney fees.
USA v Gamba 9th Circuit filed 4/11/07
At the end of a trial, defense counsel agreed to permit a magistrate to preside over the closing arguments instead of the trial judge. It appears the decision was a tactical one made by defense counsel, and he had the right to do so. Thus, no reversal of conviction.
Imran Q Cal Court of Appeal filed 4/9/07
Imran Q admitted in Juvenile Court to a hit and run. The victim was Iaquinto. Iaquinto settled the civil case for $100,000. The juvenile court then ordered restitution in the sum of $88,000, apparently economic loss and attorney fees. The matter is remanded for recalculation. The restitution statute applies to economic damages such as medical expense, property damage, and lost income. It does not apply to pain and suffering. Attorney fees attributable to economic loss are properly awarded as restitution, not those attributable to pain and suffering. The trial court has to do the math.
PCO, INC., et al v. CHRISTENSEN, MILLER, FINK et al. 150 Cal.App.4th 384 filed 4/3/07
Investment corporation, through its receiver, sued attorney and his law firm, alleging that attorney, who represented criminal convicted for engaging in fraudulent activities with corporation, improperly obtained monies that belonged to receivership. The trial court granted summary judgment and corporation appealed.
The appellate court reversed the summary judgment in favor of the law firm on one count, finding that there was a triable issue of fact concerning whether attorney was working on his own or as a member of the law firm when the attorney represented the criminal client and the monies were allegedly obtained. Facts included a written retainer agreement between firm and criminal, firm billed criminal, attorney used firm's letterhead when communicating about the case, and a fact finder could find that attorney's taking money was foreseeable consequence of costly representation of criminal. It affirmed summary judgment on two other counts in which corporation did not allege definite sum of money necessary to recover for conversion; and their were insufficient facts alleged to show firm breached a fiduciary duty to corporation.
In Re Prescott Cal Court of Appeal filed 4/3/07
Prescott sought to withdraw his guilty plea. The Court appointed attorney James to represent him, and to report back to the Court, whether there was a legal basis or a motion to set aside the plea. James reported back that there was no such basis, and laid out specific factual reasons why not, including confidential information about Prescott. This was ineffective assistance of counsel. The Judge put James into a hopeless conflict of interest The conviction is set aside, and the matter is assigned to a different judge.
Kim v Euromotors Cal Court of Appeal filed 4/2/07
Kim sued under the CLRA to force a car dealer to cancel the lease and take back a lemon. Ultimately the case settled with Kim getting most of the relief he sought in the lawsuit. Because it settled rather than going to trial, the trial court has to determine whether or not Kim was a "prevailing party" which would entitle him to attorney fees under the CLRA.
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Attorney Conduct Cases Currently Pending at the California Supreme Court
In re Hardy Oral Argument 5/1/07
Did petitioner's trial counsel render constitutionally ineffective assistance of counsel by failing to present evidence demonstrating possible third party culpability and, if so, does such ineffective assistance require reversal of either the guilt of penaly phase judgments?
Garcia v Superior Court, Oral Argument 5/29/07
Defendant seeks police misconduct information under Pitchess. Police Department wants to read and reply to defense declaration. The declaration was filed under seal and contains attorney work product and attorney client privileged information.
Rico v Mitsubishi, Fully Briefed 5/23/05
Plaintiff's attorney obtained 12 pages of notes made by defense attorney during defense attorney's interview of his own expert witness. These notes were disseminated to plaintiff's expert, and then used by plaintiff's expert as well at the deposition of the defense expert. Should plaintiff's counsel be disqualified?
Jasmine Networks v Marvell Semiconductor, Review Granted 7/21/04
Deferred pending Decision in Rico. After telephone conference ended, Marvell's officers and general counsel forgot to hang up. Jasmine's officers and attorneys listened to Marvell's attorneys and officers plot to steal Jasmine's trade secrets. The trial judge enjoined Jasmine from using the evidence. The Court of Appeal reversed.
Siebel v Mittlesteadt, Fully briefed 06/28/05
While a judgment in favor of defendant was pending on appeal, the parties settled by dismissing their appeal. The settlement agreement expressly reserved to defendant, the right to sue plaintiffs attorney. The Supreme Court may consider that issue, or may consider the broader issue of whether or not a settlement on appeal constitutes "favorable outcome" necessary for a malicious prosecution action.
Beal Bank v Arter & Hadden Fully briefed 10/23/06
When a lawyer leaves the first law firm and takes a client with him, and goes to work in a second law firm, is the statute of limitations for legal malpractice claims tolled as to the first law firm? There is conflicting Court of Appeal authority, and this Supreme Court case will resolve the conflict.
Haraguchi v. Superior Court, S148207
The trial court recused the Depty D A because he had written a novel based in part on the facts of this case. If he should be recused, is it under the independent review standard, or reviewable only for an abuse of discretion?
Hollywood v. Superior Court, S147954
The trial court recused the Deputy District Attorney who had cooperated with filmmakers planning a motion picture based on this case. Was it error not to recuse the entire district attorney's office? Should the trial court's order be reviewed under the independent review standard, or reviewable only for an abuse of discretion?
Smith v WCAB, filed 2/26/07 #S150528
Does Labor Code section 4607 authorize the Board to award attorney fees to an applicant whose employer has refused to authorize medical treatment, thereby requiring the applicant to institue proceedings to obtain that treatment?
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Attorney Conduct Cases Currently Pending at the United States Supreme Court
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