California Case Summaries

by Monty A. McIntyre, Esq.

These recent cases summarized by Monty A. McIntyre are from his publication California Case Summaries™. Monty prepares short summaries, organized by legal topic, of every new published California civil and family law case that California lawyers can subscribe to on a monthly, quarterly or annual basis. For more information go to https://californiacasesummaries.mykajabi.com. A California civil trial lawyer since 1980 and a member of ABOTA since 1995, Monty serves as a mediator, arbitrator and referee with ADR Services, Inc. handling cases in the areas of business, elder abuse, employment/wage & hour, insurance bad faith, legal malpractice, medical malpractice, personal injury, real property and wrongful death. To schedule a matter, contact Monty’s case manager Christopher Schuster at ADR Services, Inc. at (619) 233-1323 or christopher@adrservices.com.

CALIFORNIA SUPREME COURT

Evidence Mathews v. Becerra (2019) _ Cal.5th _ , 2019 WL 7176898: The California Supreme Court reversed the trial court’s order sustaining a demurrer, without leave to amend, to plaintiffs’ complaint alleging that the amended and expanded definition of the Child Abuse and Neglect Reporting Act’s (CANRA; Stats. 1987, ch. 1459.) term “sexual exploitation”, approved in Assembly Bill 1775, violated the plaintiffs’ patients right to privacy under the state and federal Constitutions. The California Supreme Court held that plaintiffs had asserted a cognizable privacy interest under the California Constitution and their complaint survives demurrer. This holding does not mean the reporting requirement is unconstitutional. It means only that the burden shifts to the state to demonstrate a sufficient justification for the incursion on privacy as this case moves forward. The case was remanded for further proceedings to determine whether the statute’s purpose of protecting children is actually advanced by mandatory reporting of psychotherapy patients who admit to possessing or viewing child pornography. (December 26, 2019.)

Probate Barefoot v. Jennings (2020) _ Cal.5th _ , 2020 WL 372523: The California Supreme Court reversed the Court of Appeal decision that had interpreted Probate Code section 17200(a) to only allow a currently named beneficiary to file a petition challenging the validity of disinheriting amendments in probate court on grounds such as incompetence, undue influence, or fraud. The California Supreme Court ruled that the Probate

26 Attorney Journals Orange County | Volume 169, 2020 Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud. The Supreme Court did not decide whether an heir who was never a trust beneficiary has standing under the Probate Code to challenge the trust. (January 23, 2020.)

CALIFORNIA COURTS OF APPEAL

Appeals PG&E “San Bruno Fire” Cases (2019) _ Cal.App.5th _ , 2019 WL 6888248: The Court of Appeal dismissed an appeal challenging the trial court’s allocation of attorney fees and costs after the settlement of consolidated San Bruno Fire Derivative Cases against PG&E. The settlement agreement provided that settling plaintiffs’ counsel would be paid in the aggregate $25 million in attorney fees and $500,000 in costs. The Court of Appeal dismissed the appeal because the operative settlement agreement unequivocally deemed the trial court’s allocation determination to be final and not subject to appellate review. (C.A. 1st, December 18, 2019.)

Arbitration Fabian v. Renovate America, Inc. (2019) _ Cal.App.5th _ , 2019 WL 6522978: The Court of Appeal affirmed the trial court’s order denying defendant’s petition to compel arbitration. The trial court properly denied the petition. Defendant offered no evidence about the process used to verify plaintiff’s electronic signature via DocuSign, including who sent plaintiff the contract, how the contract was sent to her, how plaintiff’s electronic signature was placed on

the contract, who received the signed contract, how the signed contract was returned to defendant, and how plaintiff’s identification was verified as the person who actually signed the contract. Defendant’s DocuSign authentication argument was therefore unsupported and unpersuasive. Moreover, by not providing any specific details about the circumstances surrounding the contract’s execution, defendant’s declaration offered little more than a bare statement that plaintiff “entered into” the contract without offering any facts to support that assertion. (C.A. 4th, filed November 19, 2019, published December 4, 2019.)

Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2020) _ Cal.App.5th _ , 2019 WL 7790891: The Court of Appeal reversed the trial court’s order denying a petition to compel arbitration. Plaintiff’s insurance policy was issued to Future Farmers of America for an event it was holding inside the Fresno Convention Center. Future Farmers licensed the use of the convention center from defendant, its property manager. As part of the license, Future Farmers agreed to obtain coverage for itself and to name defendant as an additional insured. The policy provided coverage for “managers, landlords, or lessors of premises” as well as for any organization “as required by contract” and also contained an arbitration clause for coverage disputes. The Court of Appeal reversed the trial court and held defendant could be compelled to arbitrate. Defendant was an intended third party beneficiary to the contract. Defendant was estopped from claiming it was not subject to arbitration because it had previously tendered a request for defense and indemnity to plaintiff. Finally, the arbitration agreement encompassed the dispute at issue. (C.A. 3rd, filed December 31, 2019, published January 28, 2020.)

Attorney Fees Hance v. Super Store Industries (2020) _ Cal.App.5th _ , 2020 WL 373070: The Court of Appeal reversed the trial court’s order awarding class action attorney fees and dividing them in accordance with an alleged fee division agreement between the attorneys. The trial court abused its discretion by enforcing the fee division agreement because the undisputed facts showed a clear violation of former rule 3-410, requiring disclosure to potential clients that one of the attorneys had no malpractice insurance, and this rendered the fee agreement unenforceable. The matter was remanded for the trial court to determine whether the uninsured lawyer should recover compensation for his attorney services on a quantum meruit basis, and, if so, how much he should recover. (C.A. 5th, January 23, 2020.)

Civil Code Hensel Phelps Construction Co. v. Super. Ct. (2020) _ Cal. App.5th _ , 2020 WL 370445: The Court of Appeal denied a writ of mandate seeking an order directing the trial court to vacate its order denying petitioner’s motion for summary judgment in an underlying construction defect lawsuit. Petitioner argued that the plaintiff’s construction defect claim was barred by the 10-year statute of limitations in Civil Code section 941. Petitioner was the general contractor on a project. Petitioner argued that substantial completion under the statute had the same meaning as substantial completion in its construction contract with the developer. The construction defect plaintiff, however, was not a party to that contract. The Court of Appeal ruled that petitioner offered no authority for its novel proposition that certain parties may, by contract, conclusively establish the date when a limitations period begins to run on another party’s cause of action. Moreover, petitioner did not show that the statute should be interpreted to adopt the provisions of the construction contract. (C.A. 4th, January 22, 2020.)

Civil Procedure Dalessandro v. Mitchell (2020) _ Cal.App.5th _ , 2019 WL 6872301: The Court of Appeal affirmed the trial court’s order denying judgment creditor’s motion to compel production of documents and imposing $3,456.70 in sanctions against judgment creditor’s attorney for discovery abuses. The Court of Appeal ruled the post-judgment order was not an appealable order but treated the appeal as a writ petition. The trial court properly denied the motion to compel, finding service of the demand to be ineffective because there was no postage affixed to the envelope. The trial court properly issued sanctions for abuse of the Discovery Act (Code of Civil Procedure, section 2023.010 et seq.). For such sanctions, there was no requirement for a party to meet and confer with the opposing party to alert him to defects in his discovery requests, particularly when they were not validly served. Nor was the trial court required to make a finding of a lack of substantial justification. Finally, a separate motion was not required, nor was a separate hearing on discovery sanctions. (C.A. 2nd, filed December 17, 2019, published January 3, 2020.)

Torts Loeb v. County of San Diego (2019) _ Cal.App.5th _ , 2019 WL 6838736: The Court of Appeal affirmed the trial court’s order granting a nonsuit in defendant’s favor on the issue of trail immunity (Government Code, section 831.4.). Plaintiff sued for personal injuries she allegedly sustained when she tripped on an uneven concrete pathway in a park. The trial court had previously denied motions for summary judgment on the basis that disputed facts existed regarding whether the pathway was used for recreational purposes. However, when plaintiff conceded during argument over the proposed special verdict forms that the pathway was used, at least in part, for recreational purposes, the trial court properly granted the nonsuit. (C.A. 4th, filed November 19, 2019, published December 16, 2019.) n

7 Things You Must Know Before Starting Your Own Firm

by Valerie McConnell

Iwas in my seventh year of practice and suffering from a classic case of burnout when I convinced myself that I would be happier at a small firm. I daydreamed about setting the litigation strategy for all of my cases without worrying about my decisions being overruled by the BigLaw bureaucracy. So, I paid off my law school debt and left one of the largest law firms in the world to join a law firm that employed exactly two people. But I soon learned that the world of small firms and solo practitioners was not what I thought it would be.

I used my own hard-learned lessons from small firm life, as well as the advice I received from colleagues who started their own firms, to compile a list of do’s and don’ts for anyone who is thinking about going solo.

 Don’t underestimate the value of legal support personnel

Do you know how to file documents with the court? Or how to format your legal documents exactly according to your court’s local rules? Or how to bates-stamp documents or redact confidential material? If your answer is “no” or “I hate that stuff,” then you may want to think twice about starting your own firm. After I left BigLaw (and an amazing team of legal support personnel), I quickly discovered that proof-reading, citechecking, formatting, and filing legal briefs on PACER or with your local state court is a ton of work. It can take hours to finalize and file a simple motion. Don’t get me started

28 Attorney Journals Orange County | Volume 169, 2020 on how long it takes to file a brief with copious exhibits or text that needs to be redacted or filed under seal. And going through discovery (collecting documents, bates-stamping, redacting, etc.) without a dedicated legal support team is, frankly, terrible.

So, if you want to go solo, be prepared to do all of those tasks entirely by yourself—or hire a fantastic administrative assistant or paralegal to help you.

 Be prepared to work hard

Big law firms have armies of people that handle all aspects of a successful practice: people who promote the firm to bring in business, people in charge of billing and collections so that the firm actually gets paid, people in charge of office management and IT infrastructure so that the firm has working computers, Internet, and everything else needed to practice law in the 21st century, legal support personnel to handle time-consuming administrative tasks (see No. 1 above) and, of course, the attorneys doing the actual billable work. When you hang out a shingle, you have one person to do all of that.

That observation may sound obvious, but when I joined a small firm, I was floored by how much time we spent on tasks besides practicing law. And since practicing law is already time-consuming, adding business development and generating invoices creates a very long to-do list.

 Don’t get burned out

While you will need to work hard to succeed as a solo practitioner or small firm attorney, you still need to eat, sleep, and stay sane. But when you work for yourself, work can easily take over your life. There is no one to cover for you when you are sick, no office policy on holidays or vacation days, and no clear separation between your work life and your home life. Also, when you work for yourself, there is a strong financial incentive to work all the time, as every dollar that the firm gets is money in your pocket. Under those circumstances, it can be easy to fall into a pattern where you are working all the time. However, over-extending and exhausting yourself is a recipe for burnout–and also increases the risk of mistakes and possible malpractice. Be sure to take care of yourself so that you stay sharp and motivated.

 Get a mentor

One of the best aspects of working in a law firm is that you have colleagues that you can speak to about problems in your cases. You can grab lunch with a fellow associate and bounce ideas off of them. You can pick the brain of a partner at your firm and hear their thoughts on a particular judge or case strategy. Your firm also provides a built-in audience that you can use to moot an important hearing. All of that goes away when you start your own practice.

You need a replacement for that support structure, which is why you need a mentor. Find an attorney that you can talk to on a regular basis about any thorny issues in your practice. The best mentor has more experience than you, but just talking to another attorney can help provide the clarity and perspective you need to figure out a solution to a problem.

 Don’t be an island

As a natural introvert, I hate to say this, but you cannot practice law completely by yourself. Even if you have a solo practice, you need to network with other attorneys. Networking leads to referrals, which leads to clients and income. Many attorneys find friendships (and referrals) by going to conferences or joining a local bar association. Or if you (like me) have trouble making small talk at a cocktail party full of attorneys, get involved in pro bono work. I made several friends and received a number of referrals by volunteering alongside other attorneys for a cause I cared about.

 Your credibility is everything

For better or worse, having the power and prestige of a big firm behind you can help you look more credible in the courtroom. But when you hang out a shingle or work for a small firm, your credibility rests entirely on the quality of your legal representation. You may find (as I did) that your legal arguments are subject to greater scrutiny and skepticism by the courts and opposing counsel when you strike out on your own. Without a big law firm brand behind you, you need to take great care to build and maintain your credibility. A judge or opposing counsel might be willing to give an attorney from a top firm the benefit of the doubt, but a small firm attorney rarely gets that benefit. If you are thinking about rushing through your legal research or filing a less-than-stellar brief with the court, think again. Although you may find that you are pressed for time and resources (see above), you need to triple-check your briefs for miscited cases, flawed arguments, and other landmines. Once your credibility is lost with a judge, it is almost impossible to gain back.

 Don’t buy things you don’t need

Watching what you spend is sound life advice, but you need to be especially careful about money when you are starting your own firm. If no new clients walk through the door, or if a case settles for far less than expected, or if a client simply refuses to pay you, you don’t want to be unable to pay your rent.

To protect yourself against the lean times, make sure that you are only buying what you actually need to practice law. For example, to save on rent, consider an inexpensive office-sharing arrangement, or work from home and meet clients at their offices. And instead of shelling out thousands of dollars a year for a Westlaw or Lexis subscription, take advantage of free and affordable legal resources. One great list of those resources can be found here: casetext.com/lexiswestlaw-guide n

Valerie McConnell is a litigation attorney with experience in a wide range of practice areas, focusing in particular on intellectual property issues and is licensed in California and Missouri. Learn more by visiting www.casetext.com.

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