Nathan B. Hoffman, AV-Preeminent Estate & Trust, Elder Law, Real Estate/Construction and Business Litigation

Copyright © 1999-2017 All rights reserved


Trusts and Wills anti-SLAPP
Petitions to enforce a no contest clause under the Probate Code are a form of protected petitioning activity subject to the protection of the anti-SLAPP statute. There may be valid policy reasons to exempt enforcement of no contest clauses from the anti-SLAPP statute, but that is for the Legislature to address.

Urick v. Urick - filed Oct. 5, 2017, Second District, Div. Five 
Cite as 2017 S.O.S. 4966 

Insurance/ Elder Law and Abuse
An indirect deprivation of an elder's property by reducing the value of the elder's voluntary transfer of funds into a trust will constitute a deprivation of an elder's property for purposes of the Elder Abuse Act.

Mahan v. Charles W. Chan Insurance Agency, Inc. - filed Aug. 23, 2017, First District, Div. Four 
Cite as 2017 S.O.S. 4284 

Contracts - Time To Review Your Arbitration Clauses

An arbitrator's decision generally cannot be reviewed for errors of fact or law, but parties can limit an arbitrators' authority by providing for review of the merits in the arbitration agreement. Language requiring arbitrator to apply California and federal law, and providing for review as though the decision had been issued by a court, was a plain expression of intent to allow for judicial review of the arbitrator's decision for legal error. When the language of the arbitration agreement is not in dispute and the arbitrability determination was not based on the credibility of extrinsic evidence, the applicable standard of review is de novo. An arbitrator could not determine a claim that is not within the scope of the parties' arbitration agreement. A claim for lost profits is not within the scope of an agreement to arbitrate disputes over the amounts of money owed for services performed. An arbitrator did not have the authority to add parties to an arbitration after one of the arbitrating parties expressly reserved its right to seek a court order on this issue.

Harshad & Nasir Corporation v. Global Sign Systems - filed Aug. 15, 2017, Second District, Div. One 
Cite as 2017 S.O.S. 4126 

Trusts and Estates 

Elderly person's child--who was not her conservator, trustee of her estate, or her attorney-in-fact under a power of appointment--lacked standing to bring an elder abuse action on the mother's behalf.

Tepper v. Wilkins - filed April 19, 2017, Second District, Div. Seven 
Cite as 2017 S.O.S. 2129 

Trusts and Estates 

Attorney fees and costs were properly and lawfully imposed against trust beneficiaries who litigated validity of a property transfer, under trial court's equitable power over the trust, except to the extent the trial court made the beneficiaries personally liable for attorney fees and costs, rather than liable solely from their shares of the trust assets.

Pizrro v. Reynoso - filed Mar. 28, 2017, Third District 

Cite as 2017 S.O.S. 1663 

Trusts and Estates

Documents may not be withheld by a former trustee from a successor trustee based on an attorney-client privilege absent a finding that the communications relate to the personal interests of the former trustee.

Fiduciary Trust International of California v. Klein - filed Mar. 21, 2017, First District, Div. Three 

Cite as 2017 S.O.S. 1537 

Trusts and Estates

Dismissal of beneficiary’s Probate Code Sec. 17200 petition to determine the validity of a trust amendment after settlor’s death--where petitioner alleged that settlor lacked testamentary capacity and was subject to undue influence when he executed the amendment and trial court dismissed under Sec. 17202 on the ground that a disclaimer by another beneficiary had restored petitioner to his pre-amendment position--was contrary to public policies of effectuating a testator’s intent and dissuading elder abuse, and was premised on the erroneous view that the disclaimer effectuated a settlement of the lawsuit.

Gregge v. Hugill - filed July 13, 2016, Sixth District

Cite as 2016 S.O.S. 3570

Trusts and Estates

In an action to invalidate a will and testamentary trust instrument drafted by the attorney who was the primary beneficiary, the trial court did not abuse its discretion by admitting evidence--as tending to show a common plan or scheme--that the attorney had similarly benefitted from other instruments that he drew up. Substantial evidence supported finding that attorney/beneficiary drafted or transcribed trust, even though the original trust document was "lost" in a burglary. Heirs argued that the attorney switched a page to make himself the beneficiary and trial court drew the inference--in part from evidence that the attorney was in decedent’s home for several hours before he died--that the burglary was staged to thwart a forensic document examination.

Butler v. LeBouef - filed June 20, 2016, Second District, Div. Six

Cite as 2016 S.O.S. 2920

Civil Procedure

Where process server declared that he effectuated substitute service on respondent’s "father/co-resident," respondent’s self-serving and factually unsupported argument that substitute service was improper because he had not lived at the address for a number of years did not rebut the presumption of valid service. Code of Civil Procedure Sec. 170.4(a)(3), which allows a disqualified judge to "[h]ear and determine purely default matters," does not violate the constitutional right to an impartial judge.

Yolo County Department of Child Support Services v. Myers - filed May 13, 2016, publication ordered June 10, 2016, Third District

Cite as 2016 S.O.S. 2582

Civil Procedure
Doe amendment procedure of Code of Civil Procedure Sec. 474 did not apply where defendant was aware, at the time of the original filing, of the facts on which the amendment was based. There is no requirement that plaintiff be aware of the probability of liability at the time of the original filing for the amendment to be quashed.

McClatchy v. Coblentz, Patch, Duffy & Bass, LLP - filed May 10, 2016, First District, Div. Five
Cite as 2016 S.O.S. 2381

Trusts and Estates

Although the beneficiaries of an irrevocable trust have standing to petition the probate court for an accounting and information after the settlor dies and the trust or a portion of the trust becomes irrevocable, the probate court does not have authority to order the trustee to provide an accounting or information regarding trust assets and transactions while the trust was still revocable, where there is no claim that the deceased settlor was incapacitated or subject to undue influence during the period of revocability.

Babbitt v. Superior Court (McCormack) - filed Apr. 25, 2016, Second District, Div. Seven

Cite as 2016 S.O.S. 2115

Trusts and Estates

Trust language "I transfer to my Trustee the property listed in Schedule A, attached to this agreement," was sufficient to convey to the trust a property listed in the schedule, and the trustor was not required to execute a separate deed in order to effectuate such conveyance. Because at the time the trust was created, a prior trust was a revocable inter vivos trust, and trustor was the sole trustee who owned no interest in the property as an individual, his signature on the later trust was sufficient "to convey good title" to the property from the prior trust to the later trust.

Carne v. Worthington - filed April 13, 2016, Fourth District, Div. One

Cite as 2016 S.O.S. 1877

Professional Responsibility and Conduct
Trial court erred in allowing arbitration panel hearing fee dispute to rule on former client’s claim that its entire contract with former counsel was illegal--thereby relieving it of liability for unpaid fees--because of an undisclosed conflict of interest. A claim that a contract is entirely illegal or in violation of public policy is not subject to binding arbitration. Whether simultaneous representation of parties with conflicting interests violated Rules of Professional Conduct was an issue to be determined de novo. Court reviewing arbitration award was not bound by disqualification ruling in underlying case. Simultaneous representation violated Rule 3-310--where it was undisputed that firm partner failed to disclose that he had previously worked for adverse party in unrelated matters--that client retained firm without knowing of the past representation. Three weeks after client retained firm, the partner began working for the adverse party again and did not disclose this to client. Violation of Rule 3-310 rendered entire agreement unenforceable, barring firm from collecting fees for any work done while the actual conflict existed.

Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. - filed January 29, 2016, Second District, Div. Four
Cite as 2016 S.O.S. 619

Trusts and Estates

Appellate court cannot "undo" a sale of trust property that had been completed with court approval under Probate Code Sec. 1310(b). Testimony of physicians experienced in determining capacity supported conclusion that trustee was lawfully removed, as incapable of managing trust affairs, under the criteria of Sec. 811. Extraordinary circumstances, notably the fact that major trust asset was facing an imminent death spiral because of trustee's behavior, supported order for immediate sale of that asset. Revocation of trust did not preclude remaining trustee from completing sale of trust asset under "wind up" powers.

Sterling v. Sterling - filed Nov. 16, 2015, Second District, Div. Eight
Cite as 2015 S.O.S. 5464

Probate- Trusts
Order authorizing trustee to use trust assets to defend against actions challenging disposition of the trust estate under an amendment to the trust was not erroneous.
The provision of the amendment that authorized the expenditures was not, as objector claimed, a no-contest clause requiring a determination that her challenges lacked merit and were brought without probable cause, nor was the court required to adjudicate the validity of the amendment prior to making the order.

Doolittle v. Exchange Bank - filed October 20, 2015, First District, Div. Three
Cite as 2015 S.O.S. 5000

Civil Procedure-
Where complaint did not specify the amount of damages sought, default judgment was void--not merely voidable--and subject to collateral attack at any time. Plaintiff did not meet the requirements of Code of Civil Procedure Sec. 580 by serving defendant with a statement of damages under Sec. 425.11 or Sec. 425.115, when the underlying claims did not involve personal injury or wrongful death, and the default judgment was for compensatory damages only.
     Dhawan v. Biring - filed October 28, 2015, Second District, Div. Five

Civil Procedure-
Contractor was entitled to a jury trial on the issue of whether it had a valid license. Code of Civil Procedure Sec. 597--permitting a bifurcation of trial on any "special defense"--did not apply because licensure is not a special defense, it is a matter the contractor must plead and prove.
     Jeff Tracy, Inc. v. City of Pico Rivera - filed August 18, 2015, publication ordered September 15, 2015, Second District, Div. Two
     Cite as 2015 S.O.S. 4433

Civil Procedure-
Defendant was served with requests for admission, and denied liability, despite the lack of a reasonable basis for doing so. Code of Civil Procedure Sec. 2033.420 requires an award of costs incurred in proving the denied fact.
     Grace v. Mansourian - filed August 17, 2015, publication ordered September 15, 2015, Fourth District, Div. Three
     Cite as 2015 S.O.S. 4438

Assignee of a cause of action could not competently identify exhibits which were business records not his own, but those of the assignor. Any error in admitting declarations of a witness in a limited jurisdiction case was harmless where the witness came to court and testified.
     Sierra Managed Asset Plan, LLC v. Hale - filed August 20, 2015
     Cite as 2015 S.O.S. 4447

Probate- Wills 

Rule that extrinsic evidence may never be introduced to reform an unambiguous will is abrogated. Where a man provided in a holographic will that his estate would go to specified charities in the event he and his wife died contemporaneously, extrinsic evidence may be admitted to show that he actually intended the charities to receive the assets of his estate if he died years after his wife’s death. Clear and convincing evidence is required of the testator’s intent to reform an unambiguous will.

     Estate of Duke - filed July 27, 2015

     Cite as 2015 S.O.S. 3800


One-year period in which to bring malpractice suit against attorneys who allegedly missed deadline to investigate and attack a creditor’s lien ran from the missed deadline, not from the date the plaintiff entered into a settlement with the debtor for less than the full amount of its debt.
     Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC - filed June 25, 2015, publication ordered July 21, 2015, Second District, Div. Two
     Cite as 2015 S.O.S. 3720
     Full text

In action resulting from traumatic brain injury suffered by plaintiff when she was struck by a part of an exercise machine at health club operated by defendant, plaintiff raised a triable issue as to whether defendant was grossly negligent--and thus could not rely on a release signed by plaintiff--by presenting evidence from which a trier of fact might conclude defendant did not perform regular, preventative maintenance on the equipment.
     Chavez v. 24 Hour Fitness USA, Inc. - filed July 8, 2015, Sixth District
     Cite as 2015 S.O.S. 3524
     Full text

-Civil Procedure-  

Where one former client sues a former lawyer, nonsuing joint clients cannot block introduction of otherwise privileged attorney-client communications.

     Anten v. Superior Court (Weintraub Tobin Chediak Coleman Grodin, Law Corporation) - filed January 30, 2015, Second District, Div. One

     Cite as 2015 S.O.S. 66758437

-Civil Procedure- 

Trial court erred in ruling that defendant whose printed name appeared at bottom of email had entered into a settlement, enforceable under Code of Civil Procedure Sec. 664.6. Defendant's printed name did not constitute an "electronic signature" under California's Uniform Electronic Transactions Act or the law of contract--in the absence of evidence defendant printed his name at the end of his email with any intent to formalize an electronic transaction.

     J.B.B. Investment Partners, Ltd. v. Fair - filed December 5, 2014, publication ordered December 31, 2014, First District, Div. Two

     Cite as 2015 S.O.S. 704

-Civil Procedure- 

Petition to compel arbitration was properly denied where trial court’s implicit finding--that defendant did not present sufficient evidence that an electronic signature on its proffered arbitration agreement was "the act of" plaintiff--was supported by substantial evidence. Declaration of defendant’s business manager stating that the signature was plaintiff’s and that he signed on a particular date was inadequate, where there was no explanation as to how she verified that plaintiff--or any other employee--electronically signed the document.

     Ruiz v. Moss Bros. Auto Group, Inc. - filed December 23, 2014, Fourth District, Div. Two

     Cite as 2014 S.O.S. 5866


What’s a reasonable attorney?

Attorney is hit with sanctions for bringing the case of a home buyer claiming the seller’s agent didn’t disclose defects in the home. The court of appeal upheld the trial court’s sanction award under CCP §128.7 because no reasonable attorney would have believed that plaintiff’s claims were factually or legally supported.Peake v Underwood (2014) 227 CA4th 11.

-Civil Procedure-
Plaintiff, by filing lawsuit, effectively refused arbitration, thereby making it unnecessary for defendant to serve a formal demand for arbitration as a prerequisite to a petition to compel arbitration.
     Hyundai Amco America, Inc. v. S3H, Inc. - filed December 17, 2014, Fourth District, Div. Three
     Cite as 2014 S.O.S. 5737

-Civil Procedure- 

Defendant’s printed name at the end of his e-mail where he had agreed to settlement terms set forth in an e-mail from plaintiffs’ counsel was not an "electronic signature" within the meaning of California’s Uniform Electronic Transactions Act, or as a matter of contract, so the e-mail was not a signed writing and could not be used as the basis for enforcement of a settlement under Code of Civil Procedure Sec. 664.6.

     J.B.B. Investment Partners, Ltd. v. Fair - filed December 5, 2014, First District, Div. Two

     Cite as 2014 S.O.S. 5521


-Civil Procedure-

Plaintiff’s attorneys, not plaintiff, were entitled to the interest paid on court-awarded attorney fees, as well as the costs awarded.

     Hernandez v. Siegel - filed Sept. 30, 2014, First District, Div. Five

     Cite as 2014 S.O.S. 4379


-Civil Procedure-

A party seeking attorney fees pursuant to Civil Code Sec. 1717 need not, in addition to filing a noticed motion, file a memorandum of costs.

     Kaufman v. Diskeeper Corporation - filed August 21, 2014, Second District, Div. Four

     Cite as 2014 S.O.S. 3700


-Civil Procedure-

California Rule of Court 3.1320(j) allows 10 days for the filing of an answer after a demurrer is overruled or sustained without leave to amend, or after the time in which an amendment is permitted expires. It does not apply if an amended complaint is filed. In that instance, the defendant has 30 days to answer pursuant to Code of Civil Procedure Sec. 471.5(a). Plaintiff who amends complaint assumes risk that trial court will sustain a demurrer to the entire amended complaint, including an unrevised claim as to which a demurrer was previously overruled.

     Carlton v. Dr. Pepper Snapple Group, Inc. - filed August 14, 2014, Fourth District, Div. Two

     Cite as 2014 S.O.S. 3475



Trial court did not abuse its discretion in admitting, for purposes of summary judgment proceedings, the declarations of counsel, offered to summarize the exhibits and the document summary attached thereto. Such declarations were not inadmissible hearsay where there were no objections to the exhibits themselves, nor any dispute as to the material terms of the writings attached as exhibits.
     Golden State Boring & Pipe Jacking, Inc. v. Eastern Municipal Water District - filed July 23, 2014, Fourth District, Div. Two
     Cite as 2014 S.O.S. 3886

-Trusts and Estates-

A court acts as a fact finder resolving matters of considerable significance to the parties, such as the best interest of a minor--a full evidentiary hearing is warranted before the decision can properly be made, pursuant to Probate Code Sec. 1601. The best interest of the child is the sole criterion governing guardianship termination proceedings--what constitutes the best interest of a child presents an inherently factual issue.
     Guardianship of A.L. - filed July 23, 2014, Third District
     Cite as 2014 S.O.S. 3812

-Torts- Architect Liability

Principal architect--one who, in providing professional design services, is not subordinate to other design professionals--on a residential project owes a duty of care to future purchasers of the residences, even when the architect does not actually build the project or exercise ultimate control over construction.

     Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP - filed July 3, 2014

     Cite as 2014 S.O.S. 3404


-Real Property-

When a broker is the dual agent of both the buyer and the seller in a real property transaction, the salespersons acting under the broker have the same fiduciary duty to the buyer and the seller as the broker. Jury’s findings that salesperson did not provide false information to buyer, or provided false information that he reasonably believed to be true--and did not intentionally conceal information, did not resolve the issue of whether salesperson satisfied his duty to buyer as a fiduciary. So trial court’s erroneous grant of nonsuit on that issue, and erroneous jury instructions related to the issue were prejudicial.

Horiike v. Coldwell Banker Residential Brokerage Company - filed April 9, 2014, Second District, Div. Five

     Cite as 2014 S.O.S. 1768


-Trusts and Estates-

Arbitration clause in trust instrument is not binding on a beneficiary who never agreed to it. Beneficiary did not receive benefits under trust instrument, and thus was not estopped to deny that she was bound by its arbitration clause, where she contended that trust was invalid and sought to have it set aside.

     McArthur v. McArthur - filed March 11, 2014, First District, Div. Five

     Cite as 2014 S.O.S. A137133


-Civil Procedure-

Service of process was defective, requiring that default and default judgment be vacated, where plaintiff simply left a summons and complaint with someone who was in charge of a branch office of the defendant corporation and then mailed the corporation, rather than any individual officer or manager, a copy of the summons and complaint.

     Ramos v. Homeward Residential, Inc. - filed February 20, 2014, Fourth District, Div. One

     Cite as 2014 S.O.S. D063740



Court properly granted summary judgment on coworker’s claims of vicarious liability and negligence in favor of staffing company, where "special" employee acted outside of the course and scope of her employment when she poisoned a coworker, and the work-related dispute that gave rise to the poisoning occurred at the facility where the "special" employee had been placed to work and did not concern the staffing company.

     Montague v. AMN Healthcare, Inc. - filed February 21, 2014, Fourth District, Div. One

     Cite as 2014 S.O.S. D063385


-Civil Procedure-

Code of Civil Procedure Sec. 2025.290(a) permitted a court to grant additional deposition time if needed to fairly examine a deponent, making the seven-hour limit imposed by subdivision (a) and the 14-hour limit imposed by subdivision (b)(3) merely presumptive. Sec. 2025.290 not only authorized but required the court to allow for additional deposition time, unless the court in its discretion determined that the deposition should be limited.

     Certainteed Corporation v. Superior Court (Hart) - filed January 8, 2014, Second District, Div. Three

     Cite as 2014 S.O.S. B253308


-Trusts and Estates-
In contestation of an amended trust with a no-contest clause, probate court did not err in ruling on the beneficiaries’ application since safe harbor proceedings filed before 2010 are not affected by the repeal of former Probate Code Sec. 21320, which previously authorized safe harbor applications. Amended family trust instrument that became irrevocable after January 1, 2001 was subject to current law regarding whether beneficiaries’ proposed claims triggered the no-contest clauses, as directed by Sec. 21315(a). No-contest clauses in amended family trust instrument were unenforceable against the beneficiaries’ proposed petition where claims did not fall into any of the categories of contest set forth in Sec. 21311(a). Successor trustees could not claim a fairness exception to the presumptive applicability of the current law to instruments that became irrevocable after January 1, 2001, because application of the former law would yield the same conclusion regarding the unenforceability of the no-contest clauses.
     Donkin v. Donkin - filed December 26, 2013
     Cite as 2013 S.O.S. S202210

-Intellectual Property/ Internet/ E-mail

Google, Inc.’s alleged violation of the Wiretap Act, based on collection of data from unencrypted Wi-Fi Networks in the course of capturing Street View photographs, did not fall within an exemption from the act set forth in 18 U.S.C. Sec. 2511(2)(g)(i), because data transmitted over a Wi-Fi network is not an "electronic communication" that is "readily accessible to the general public."

     Joffe v. Google, Inc. - filed September 10, 2013

     Cite as 11-17483



Letter in which attorney threatened to file a lawsuit, based on a proposed complaint that was attached to the letter and included allegations of financial and sexual misconduct, did not constitute extortion as a matter of law--and was protected by the litigation privilege--where there was no threat to publicize the allegations in any nonjudicial forum. Causes of action for violation of civil rights, and intentional and negligent infliction of emotional distress, based on allegations of wiretapping and computer hacking, did not implicate free speech and petition rights for purposes of the anti-SLAPP statute.

     Malin v. Singer - filed July 16, 2013, Second District, Div. Four

     Cite as B237804

-Civil Procedure-

Trial court improperly awarded attorney fees to defendants who successfully petitioned to compel arbitration under agreement that provided for arbitration and also provided that prevailing party in any "action" between the parties would recover attorney fees. Defendants would not be prevailing parties in the action unless they prevailed at arbitration.

     Roberts v. Packard, Packard & Johnson - filed July 3, 2013, Second District, Div. One

     Cite as B240452


-Professional Responsibility and Conduct-

Trial court abused its discretion by disqualifying law firm from simultaneously representing a limited liability company, a partnership that was the LLC’s managing member, and the person who managed that partnership in a lawsuit against two of the company’s minority members, based on a potential conflict of interest. Attorney’s duty of loyalty to simultaneously represented clients does not preclude such representation where there is no actual conflict and no reasonable likelihood such a conflict would arise.

     Havasu Lakeshore Investments, LLC v. Fleming - filed May 28, 2013, publication ordered June 18, 2013, Fourth District, Div. Three

     Cite as G047244


-Civil Procedure-

Plaintiff, who prevailed on her claim of negligence but not on her related claim for breach of contract, was the prevailing party for purposes of an attorney fee award under Civil Code Sec. 1717, where a clause in the contract established the party that prevailed overall in the litigation was entitled to an award of attorney fees.

     Maynard v. BTI Group, Inc. - filed May 29, 2013, First District, Div. Three

     Cite as A136093



Trial court erred in admitting evidence of the full amounts billed for plaintiffs’ medical care rather than the amounts actually paid and accepted as full payment by plaintiffs’ medical providers. Evidence of the full amounts was not relevant to the amount of damages for past medical services, damages, or future medical care or noneconomic damages, and plaintiffs did not show that it was relevant to any other issue. In negligence action against defendant who allegedly was under the influence of alcohol when he caused auto collision in which plaintiffs were injured, evidence of defendant’s prior arrest for driving under the influence was relevant to show his awareness of the dangers of such driving, tending to show the malice requisite to an award of punitive damages. Such evidence was not unduly prejudicial where defendant had already admitted to causing the collision. Defendant who failed to comply with a subpoena requiring him to produce at trial the records of his financial condition was estopped to claim that the amount of a punitive damage award was excessive relative to his ability to pay. Award of damages for negligence and gross negligence causing auto collision was not "based upon" defendant’s felony violation of the hit-and-run statute, so Penal Code Sec. 1021.4, which authorizes an award of attorney fees to a plaintiff who prevails in an action based upon a felony of which the defendant was convicted, did not apply.

     Corenbaum v. Lampkin - filed April 30, 2013, Second District, Div. Three

     Cite as B236227


-Civil Procedure-

Demand letter in which attorney threatened to bring suit as well as to report recipient’s client "to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau, as well as to customers and vendors" if settlement demand was not accepted constituted "criminal extortion" not protected by the anti-SLAPP statute.

     Mendoza v. Hamzeh - filed April 22, 2013, Second District, Div. One

     Cite as B239245


-Trusts and Estates-

Action by heir of deceased trust beneficiary charging trustee with breach of trust and seeking his removal was brought in bad faith and without probable cause when the action's sole purpose was to induce trustee to convey trust property to heir, without his making the equalizing payment that was clearly required by the trust. For purposes of anti-SLAPP statute, trustee was likely to prevail in a malicious prosecution action against heir's attorneys, who were clearly aware of the impropriety of the action. Where underlying ruling was affirmed on appeal, fact that trust assets remained to be distributed did not preclude finding that ruling was a final determination of the merits for purposes of malicious prosecution suit. Where attorneys representing heir brought a frivolous claim, then brought a frivolous anti-SLAPP motion against the resulting malicious prosecution complaint, trial court properly awarded attorney fees to trustee for opposing the anti-SLAPP motion. Heir's attorneys were subject to sanctions for bringing a frivolous appeal of the order denying the motion, where their appellate arguments were based on obvious distortions of the record and lacked any basis in law or fact.

     Kleveland v. Siegel & Wolensky, LLP - filed April 17, 2013, Fourth District, Div. One

     Cite as D060906



-Intellectual Property-

Where defendants, producers of a stage musical about a historically significant musical group, used a seven-second clip from television show to which plaintiffs owned copyright to mark a historical point in the band’s career, this was fair use as a matter of law because defendants imbued the clip with new meaning and did not usurp demand for the original clip. District court did not abuse its discretion in awarding attorney fees to prevailing defendant under Sec. 505 of the Copyright Act where plaintiff’s claim of infringement was objectively unreasonable--particularly since plaintiff had previously unsuccessfully litigated a similar claim against a different defendant--and defendant reasonably invoked an important legal doctrine in its defense.

     SOFA Entertainment, Inc. v. Dodger Productions, Inc. - filed March 11, 2013

     Cite as 10-56535


Civil Procedure-

Sec. 7031 constitutes a clear-cut and explicit legislative expression of public policy mandating the disgorgement of compensation received by an unlicensed contractor.

     Ahdout v. Hekmatjah - filed January 25, 2013, Second District, Div. Four

     Cite as B236764


-Intellectual Property-

Sec. 204 of the Copyright Act--which provides: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent"--requires that an agent have actual, not merely ostensible, authority in order to effectuate a valid transfer. Plaintiff's claims that defendant negligently misrepresented his willingness to cooperate with plaintiff's efforts to create a film adaptation of book authored by defendant failed to raise triable issues of fact when parties did not have a valid contract under Sec. 204 and plaintiff failed to identify any conduct by defendant suggesting that purported agent who allegedly made the representations on plaintiff's behalf was in fact defendant's agent.

     MVP Entertainment, Inc. v. Frost - filed November 7, 2012, Second District, Div. Eight

     Cite as B235100



Failure to submit sworn proofs of loss, as required under various homeowners' insurance policies, did not constitute a defense to insured's breach-of-contract and bad faith claims when insurer failed to make a showing of substantial prejudice; when insureds claimed loss was based on presence of soot, ash, or char it was reasonable to infer that insureds would not have been able to provide much additional useful information in a proof of loss to enable insurer to conduct a more thorough investigation, particularly since insurer relied upon hygienist's conclusions, not proof of loss, in preparing estimates for such losses. Nine-month delay in providing notice of loss, combined with evidence that insureds had remodeled their home, did not establish prejudice because insurer forfeited the defense by not specifically objecting to untimely notice of loss. Breach-of-contract or bad faith cause of action may serve as a predicate for an unfair competition claim when the allegations supporting the claim also would constitute a violation of the Unfair Insurance Practices Act, although there is no private right of action under the UIPA. Insured's claim of joint venture and alter ego liability against affiliated companies failed as a matter of law in absence of evidence that plaintiff's insurer was inadequately capitalized or would be unable to pay a judgment.

     Henderson v. Farmers Group, Inc. - filed October 24, 2012, Second District, Div. Four

     Cite as B236259



In measuring damages for wrongful injury to a pet, the owner is not limited to the market value of the pet and may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to the injury.

     Martinez v. Robledo - filed October 23, 2012, Second District, Div. Two

     Cite as B231534



On Monday, September 17, 2012, Governor Brown signed Assembly Bill 1875 which will limit depositions to one seven (7) hour day.  This law conforms with the federal rules and becomes effective on January 1, 2013.  The enactment of the legislation will add Section 2025.290 to the Code of Civil Procedure which will read as follows:  

 (a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(b)  This section shall not apply under any of the following circumstances:

(1) If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.

(2) To any deposition of a witness designated as an expert pursuant to Sections 2034.210 to 2034.310, inclusive.

(3) To any case designated as complex by the court pursuant to Rule 3.400 of the California Rules of Court, unless a licensed physician attests in a declaration served on the parties that the deponent suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months, in which case the deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony.

(4) To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.

(5) To any deposition of a person who is designated as the most qualified person tobe deposed under Section 2025.230.

(6) To any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section.

(c)  It is the intent of the Legislature that any exclusions made by this section shall not be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions falling within the exclusion. Nothing in this section shall be construed to affect the existing right of any party to move for a protective order or the court's discretion to make any order that justice requires to limit a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.



Trial court did not commit reversible error in precluding expert from testifying at trial that defendant’s treatment of plaintiff fell below the standard of care where expert did not state this opinion during his designation deposition, and plaintiff did not comply, or even substantially comply, with requirements for expert witness designation.
     Dozier v. Shapiro - filed September 27, 2011, publication ordered October 19, 2011, Second District, Div. One
     Cite as 2011 S.O.S. 5721

Medical Injury Compensation Reform Act limit of $250,000 on damages for non-economic injury does not violate the state or federal constitutional right to equal protection of the laws or the state constitutional right to a jury trial.
     Stinnett v. Tam - filed September 1, 2011, Fifth District
     Cite as 2011 S.O.S. 4989


When a tortiously injured person receives medical care for her injuries, and the provider of that care accepts as full payment, pursuant to a preexisting contract with the injured person's health insurer, an amount less than that stated in the provider's bill, the injured person may not recover from the tortfeasor--as economic damages for past medical expenses--the undiscounted sum stated in the provider's bill but never paid by or on behalf of the injured person. This is because the injured plaintiff did not suffer any economic loss in that amount. The collateral source rule precludes certain deductions against otherwise recoverable damages but does not expand the scope of economic damages
to include expenses the plaintiff never incurred.
Howell v. Hamilton Meats & Provisions, Inc. - filed August 18, 2011
Cite as 2011 S.O.S. 4563

-Civil Procedure-
A party need not move to compel arbitration under Code of Civil Procedure Sec. 1281.2 if another party refuses to participate. Arbitration clause, which provided that unless the claimed damages fell within the jurisdiction of small claims court, any dispute "shall be resolved pursuant to the rules of the American Arbitration Association, at its Los Angeles Office," was sufficiently comprehensive to make it self-executing. An averment on the basis of personal knowledge is not required before a declaration is made admissible under Evidence Code Sec. 702.
     Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Company - filed July 18, 2011, Second District, Div. Four
     Cite as 2011 S.O.S. 3953

Husband of woman who suffered a debilitating injury that impaired her mobility and limited her independence suffered a cognizable loss of consortium even though wife's mobility and independence were limited before the incident, since her condition deteriorated considerably as a result of the incident, leaving her unable to provide the same conjugal society, comfort and moral support that she once could. Husband's testimony that he and his wife loved each other as much as before, and that the changes in their lives as a result of her injury had not harmed their relationship, did not negate the tangible impact of his wife's injury and thus did not negate his prima facie case for loss of consortium. Substantial evidence supported trial court's finding that husband suffered no compensable emotional distress as a result of witnessing wife's fall, since he did not describe any severe emotional reaction to the event.
     Mealy v. B-Mobile - filed May 24, 2011, Second District, Div. Three
     Cite as B226243

-Trusts and Estates-
The beneficiary of a trust who did not agree to arbitrate disputes arising under the trust may not be compelled to do so.
     Diaz v. Bukey - filed May 10, 2011, Second District, Div. Six
     Cite as 2011 S.O.S. 2450
     Full text

-Intellectual Property-
Copyright law does not preempt an implied contractual claim to compensation for use of an idea embodied in a copyrighted script submitted to a producer for consideration.
     Montz v. Pilgrim Films & Television Inc. - filed May 4, 2011
     Cite as 08-56954 -- NINTH U.S. CIRCUIT COURT OF APPEALS

Plaintiff was a special employee of production company that hired him through his loan-out company, paid him a fixed weekly wage over the course of seven months, had a right to control the manner and method of plaintiff's work, and provided the place of work and all equipment necessary; workers' compensation exclusivity rule therefore precluded any tort remedy against production company and company which provided stunt equipment. Company financing film did not assume a duty to ensure that production complied with occupational safety regulations by providing safety advisors where financing company had a contract with production company in which the production company expressly agreed to comply with all applicable occupational safety laws and to implement a safety program; financing company did not affirmatively contribute to plaintiff's injury since company did not participate in the design or coordination of the stunt which injured plaintiff.
     Angelotti v. The Walt Disney Company - filed February 24, 2011, Second District, Div. Three
     Cite as 2011 S.O.S. 1135

Attorney-client communications in connection with a mediation were inadmissible in client’s malpractice action against attorneys based on their representation of him at the mediation unless the confidentiality of a particular communication was expressly waived. All discussions conducted in preparation for a mediation as well as all mediation-related communications that take place during the mediation itself are protected from disclosure, even if these do not occur in the presence of the mediator or other disputants.
     Cassel v. Superior Court (Wasserman, Comden, Casselman & Pearson, L.L.P.) - filed January 13, 2011
     Cite as 2010 S.O.S. 253

Risking of foreseeable harm was unreasonable where professional truck driver--who had received professional training that included or should have included the need to take other drivers’ sight lines into account when parking--parked an extremely large commercial vehicle near an intersection in a manner that blocked the view of oncoming traffic on a major highway thoroughfare with a high posted speed limit even though a safer parking spot was readily available. Driver was not excepted from the duty he would ordinarily bear to exercise due care in the operation of his vehicle simply because he was parked legally, and the issue of his negligence in choosing where to park was properly submitted to a jury.
     Lawson v. Safeway Inc. - filed December 30, 2010, First District, Div. One
     Cite as 2011 S.O.S. 69

-Civil Procedure-
Trial court ruling that defendant who prevailed in arbitration, in which plaintiff prevailed on other claims, could not be added--as an additional debtor under the alter ego doctrine--to judgment confirming arbitration award was error where that defendant was not a party to the claim as to which plaintiff claimed defendant was alter ego of the party found liable. Although a trust is not subject to the alter ego doctrine because it is not a legal entity, a trustee may be added as a judgment debtor, enabling the judgment creditor to reach the assets of the trust. Deposition transcripts need not be lodged in advance to be offered at a motion to amend judgment to add additional debtors. No authority requires a party in a law-and-motion matter to respond to evidentiary objections in the trial court or waive an appellate challenge to the trial court's rulings.
     Greenspan v. LADT, LLC - filed December 30, 2010, Second District, Div. One
     Cite as B222539

-Trusts and Estates-
Beneficiaries of decedent's trust who had already been paid the amounts they were owed under the trust were not "interested persons" for purposes of pursing an elder abuse action after decedent's death pursuant to Welfare and Institutions Code Sec. 15657.3(d); beneficiaries' status as beneficiaries of decedent's trust never gave them standing to pursue the elder abuse action because the beneficial interest they had in the trust estate was not one that could have been "affected by" the elder abuse action. The only way beneficiaries would have standing would be as decedent's successors in interest under subdivision (d)(1)(B) if the requirements of Probate Code Sec. 259 were met as to the residuary beneficiaries. Since defendants' summary judgment motions were based on the premise that plaintiffs lacked standing to pursue any cause of action that belonged to decedent because they could not show defendants were disinherited under Sec. 259, defendants did not have to separately address plaintiffs' claims or make a prima facie showing as to those causes of action. Even though liability for abuse under Sec. 259 could be premised on aiding and abetting abuse by another or on a conspiracy to commit the act of abuse, it still must be shown that the person who is liable for the abuse  acted in bad faith and was reckless, oppressive, fraudulent, or malicious. Plaintiffs did not demonstrate prejudicial error in the denial of their motion to compel one defendant to respond to discovery since they did not show that defendant's answers would have led to admissible evidence sufficient to raise a triable issue of fact as to whether defendant acted in bad faith and engaged in reckless, malicious, oppressive, or fraudulent conduct.
     Lickter v. Lickter - filed October 27, 2010, Third District
     Cite as C061782

-Intellectual Property-
Even if a domain name was put up innocently and used properly for years, a person is liable under 15 U.S.C. Sec. 1125(d) if he subsequently uses the domain name with a bad faith intent to profit from the protected mark by holding the domain name for ransom; evidence sufficiently supported jury's verdict that defendant did so where he used domain name as leverage to get the money he said plaintiff owed him. Evidence was sufficient to support jury's conclusion that designer plaintiff's "EQ" mark was a distinctive mark and that the domain name "" was confusingly similar to plaintiff's mark in the context of men's shirts. Sufficient evidence supported $152,000 damages award where damages for the expense of re-creating the Web site was a natural and foreseeable consequence of defendant holding the original site for ransom, and where remaining amount for lost profits was reasonable based on plaintiff's financial statements.
     DSPT International, Inc. v. Nahum - filed October 27, 2010
     Cite as 08-55062

-Civil Procedure-
Trial court properly denied special motion to strike where complaint arose from a business dispute between the parties, and the asserted protected activities were examples of alleged mismanagement by defendant. Where issue of whether an anti-SLAPP motion should have been granted is properly before the appellate court, that court also has jurisdiction over issue of whether an attorney fee award was proper. Any reasonable attorney should be aware that a business dispute that simply mentions incidental protected activity is not subject to the anti-SLAPP statute.
     Baharian-Mehr v. Smith - filed October 15, 2010, Fourth District, Div. Three
     Cite as 2010 S.O.S. 5908

-Trusts and Estates-
Where trust instrument provided that trustee would make certain distributions upon trustor’s death, trustor must have contemplated ongoing management until a final distribution, at the trustee’s discretion, to a then-living beneficiary. Where trustee/beneficiary died without having fully distributed trust property to herself, remaining property did not pass to her heir, and successor trustee properly distributed it to the contingent beneficiary.
     Weinberger v. Morris - filed September 24, 2010, Second District, Div. Eight
     Cite as 2010 S.O.S. 5573

-Business and Corporations Law-
Finding that member of mutual benefit corporation had a proper purpose in seeking to inspect and copy membership list pursuant to Corporations Code Sec. 8330 was supported by substantial evidence where member repeatedly asserted in his communications to corporation his intent to use the membership information solely to contact other members regarding his proposed petition to amend the corporation’s bylaws. Evidence that one of the 36 members who signed an endorsement of plaintiff’s petition was employed by a competitor of the corporation did not establish as a matter of law that plaintiff wanted the list for an improper purpose. Corporation’s proposed alternative to inspection and copying--the use of a third-party mail house to send plaintiff’s petition by conventional mail--was unreasonable where it would have cost plaintiff $260,000 and where corporation did not propose the alternative until eight days before scheduled meeting. Records that may be inspected and copied include e-mail addresses where corporation regularly communicates with members by e-mail. Single member may exercise right of inspection and copying.
     Worldmark, The Club v. Wyndham Resort Development Corporation - filed August 23, 2010, Third District
     Cite as 2010 S.O.S. 4998

-Intellectual Property-
Plaintiff--who produced, directed, and starred in certain motion pictures, and was the sole owner and employee of the production company that owned the copyrights--had standing to sue for infringement. Where plaintiff had standing to sue for copyright infringement, his right of publicity claim under California law was preempted.
     Jules Jordan Video, Inc. v. 144942 Canada Inc. - filed August 16, 2010
     Cite as 08-55075

Trial court erred in reducing plaintiff’s award for medical expenses to the amount actually accepted by plaintiff’s medical providers as payment in full under their contracts with plaintiff’s private health insurers. Amounts written off by a health care provider pursuant to its contract with a private insurer may be recovered as damages under the collateral source rule.
     Yanez v. Soma Environmental Engineering, Inc. - filed June 24, 2010, First District, Div. One
     Cite as A123893

Intellectual Property-

Go team! University of Southern California’s “SC” mark dominates University of South Carolina
The U.S. Court of Appeals for Federal Circuit affirmed a Trademark Trial and Appeal Board (TTAB) decision refusing registration of the University of South Carolina’s (South Carolina) “SC” design mark and granting summary judgment in favor of the University of Southern California (Southern Cal), while denying a counterclaim cancellation action filed by South Carolina attempting to cancel Southern Cal’s registration for its standard character “SC” mark.

-Intellectual Property-
Under 17 U.S.C.A. Sec. 411(a), copyright holders must register their works as a precondition to filing a copyright claim. A copyright holder’s failure to comply with that requirement does not restrict a federal court’s subject-matter jurisdiction over infringement claims involving unregistered works.
     Reed Elsevier, Inc. v. Muchnick - filed March 2, 2010
     Cite as 08-103

-Real Property-
In a rising market, a seller may not retain buyer's deposit after buyer breached sales agreement if seller cannot establish any damages caused by buyer's breach, even if sales agreement specifies that deposit was nonrefundable.
     Kuish v. Smith - filed February 3, 2010, publication ordered February 10, 2010, Fourth District, Div. Three
     Cite as 2010 SOS 843
Updated February 5, 2010 13:27:49

In a landmark piracy case that had been followed closely around the world, the film industry has lost a copyright battle against Australian internet service provider IINET. The case, involving major studios such as Warner Brothers, Disney, Paramount, Columbia and Twentieth Century Fox, was seen as an ambitious attempt to force ISPs to act against piracy. But the Australian Federal Court found the company was not responsible for the copyright violations of its users.

-Civil Procedure-
Plaintiffs, who settled with several defendants and later obtained a damage award against nonsettling defendants in an amount less than the settlement proceeds, resulting in a zero judgment, were not the prevailing parti[ies] for purposes of cost-recovery and fee-shifting statutes.
     Goodman v. Lozano - filed February 4, 2010
     Cite as 2010 SOS 663
-Civil Procedure-
Adventure travel company’s form agreement on binding arbitration and limitation of liability, which was presented to consumers on a take-it-or-leave basis, together with the explanation that all other such companies required the same agreement, was sufficiently oppressive to be procedurally unconscionable. Arbitration and limitation-of-liability agreement that guaranteed plaintiffs could not possibly obtain anything approaching full recompense for their harm by limiting any recovery they could obtain to the amount they paid defendant for their trip, required out-of-state plaintiffs to mediate and arbitrate in California, and required plaintiffs to indemnify defendant for its costs and attorney fees for defending any claims--while offering no reciprocal benefit to plaintiffs--was substantively unconscionable. In view of procedural and substantive unconscionability that permeated agreement, trial court did not abuse its discretion by denying petition to compel arbitration rather than severing remainder of arbitration agreement from the unconscionable provisions.
     Lhotka v. Geographic Expeditions, Inc. - filed January 29, 2010, First District, Div. Three
     Cite as A123725
-Labor and Employment Law-
Wage and hour laws protect unwaivable statutory rights that are supported by strong public policy, so provision in employment contract shortening limitation period is unenforceable with respect to causes of action based on such laws, including claims for failure to comply with Labor Code provisions pertaining to overtime compensation, commissions, meal periods, and itemized wage statements, and unfair competition claims based on same violations. Where defendants pled affirmative defense that plaintiffs were administrative employees exempt from the Labor Code provisions on which their claims were based, trial court's decision to try equitable issues related to unfair competition claim first--with legal issues to be tried to jury thereafter--and subsequent ruling that plaintiff was entitled to judgment as a matter of law as to the affirmative defense, did not violate defendant's constitutional right to trial by jury. Implied finding that plaintiffs were not administrative employees within meaning of applicable Industrial Welfare Commission order was supported by substantial evidence that plaintiffs' duties as account executives for defendant, a temporary staffing agency, were not directly related to management policies because they instead constituted sales work; such evidence included testimony that account executives were trained in sales, worked directly with clients, did not supervise employees once they were placed, did not formulate policy and performed their duties in a manner specified by the employer, and corporate headquarters had departments that provided administrative support so that plaintiffs could focus on sales.
     Pellegrino v. Robert Half International, Inc. - filed January 28, 2010, Fourth District, Div. Three
     Cite as G039985
-Civil Procedure-
Where complaint failed to state the amount of damages sought, resultant default judgment for damages was void. Constructive notice of potential liability does not satisfy Code of Civil Procedure Sec. 580.
     Stein v. York - filed January 25, 2010, Fourth District, Div. Three
     Cite as 2010 SOS 369
Code of Regulations, title 10, Sec. 2695.4(a) requires an insurer to notify insured of contractual limitations provisions and other policy provisions that may apply to a claim regardless of whether insured is represented by counsel. Insurer who fails to provide such notice may be equitably estopped from relying on the provision if insured had no actual knowledge of it, and insured’s failure to discover provision by other means was reasonable. Undisputed evidence of a material misrepresentation made in insured’s application invalidated policy and entitled insurer to summary judgment in its favor. Absent a valid policy, there was no basis for a duty on the part of insurer to disclose its familiarity with drayage business and therefore no basis for a fraudulent concealment claim.
     Superior Dispatch, Inc. v. Insurance Corporation of New York - filed January 21, 2010, Second District, Div. Three
     Cite as B204878A
Insurer was entitled to rescission as a matter of law where insured failed to disclose material information about her medical condition and treatment on her application; evidence showing that insured lacked any intent to defraud failed to create a triable issue of fact. Insurer had no statutory duty to show that insured’s application had been physically attached to insurance policy or to conduct further inquiries during underwriting process to ascertain truthfulness of insured’s representations before issuing policy. Because insurer’s operative summary judgment motion addressed an issue not raised by its first motion, trial court did not abuse its discretion in declining to reach question of whether operative summary judgment motion relied on the same facts and law presented in prior motion; regardless, a trial court has authority to reconsider sua sponte an earlier interim ruling on a motion for summary judgment even though the moving party may not have asserted any new issues or newly discovered facts or law that would support the filing of a second or renewed motion for summary judgment. Where insured had sufficient notice of and an opportunity to respond to insurer’s motion asserting that her fraud justified rescission, insured suffered no prejudice by responding to the motion on the merits.
     Nieto v. Blue Shield of California Life & Health Insurance Company- filed January 19, 2010, Second District, Div. Two
     Cite as 2010 SOS 226
-Trusts and Estates-
A non-relative petitioning for appointment of a guardian for a minor’s estate must establish standing under Probate Code Sec. 1510(a) by pleading ultimate facts demonstrating financial misconduct or alleging other information sufficient to warrant court intervention in the management of minor’s money or other property. Test for determining whether a nonrelative has standing to file a petition for appointment of a guardian is the same as test for determining whether petition’s allegations are sufficient to survive a motion to dismiss. Probate court erred by ordering an investigation without providing mother with notice or an opportunity to be heard before issuing its order.
     Suleman v. Superior Court (Petersen) - filed January 8, 2010, Fourth District, Div. Three
     Cite as G042509
-Intellectual Property-
There is no requirement that plaintiff suing for misappropriation under California Uniform Trade Secrets Act own the trade secret at time of suit, so trial court erred in ruling that plaintiff who sold trade secret while retaining right to sue for misappropriation lacked standing.
     Jasmine Networks, Inc. v. Superior Court (Marvell Semiconductor, Inc.) - filed December 29, 2009, Sixth District
     Cite as H034441
Where plaintiffs asserted a cause of action for breach of contract alleging that plaintiffs, while having no enforceable contract, conferred a benefit on defendant that defendant has knowingly accepted under circumstances that make it inequitable for defendant to retain the benefit without paying for its value, plaintiffs' complaint fully raised all facts and circumstances in which equity could contemplate a quasi-contractual remedy of unjust enrichment. Allegation that defendants "took full control of the Business from Plaintiffs without paying the agreed purchase price, or any price at all" was sufficient to support claims for conversion and trespass.
     Hernandez v. Lopez - filed November 30, 2009, modification published December 28, 2009, Fourth District, Div. Three
     Cite asG040956

-Civil Procedure-
As a matter of public policy, a medical lien against the recovery in a personal injury lawsuit is not equal in equity to an attorney lien for fees and costs created by a retainer agreement to litigate the lawsuit regardless of which was first in time. Where complaint alleged defendants were aware of plaintiff’s lien but was devoid of any allegations showing an agency, trust, joint venture, partnership, or other traditionally recognized fiduciary relationship, defendants did not have any contractual duty to plaintiff.
     Gilman v. Dalby - filed August 10, 2009, Third District
     Cite as 2009 SOS 4803

Business and Corporations Law-

Where licensed general contractor and responsible managing employee disassociated himself from partnership with defendants before defendants entered into a contract with plaintiff to perform home repairs and began work, defendants were not acting in substantial compliance with licensing requirements because defendants were never licensed prior to time contract was entered into and work commenced.
     Oceguera v. Cohen - filed March 24, 2009, Second District, Div. Five
     Cite as 2009 SOS 1834

Where insurer’s policy provided that it would pay "[a]ll costs taxed" against insured in a lawsuit, costs taxed could include attorney fees paid in a settlement. Where settlement did not specifically identify prevailing party, party who received payment was prevailing party. Where insurer stood to gain if independent counsel successfully challenged coverage, it was equitable for such insurer to share in cost of counsel’s fees.
     Employers Mutual Casualty Company v. Philadelphia Indemnity Insurance Company- filed November 19, 2008, publication ordered December 17, 2008, Second District, Div. Two
     Cite as 2008 SOS 6798

-Civil Procedure-
Stipulated judicial reference agreement made pursuant to Code of Civil Procedure Sec. 638, which includes a provision to split the referee's fees equally between the parties, is enforceable and precludes recovery of the prevailing party's 50 percent share of the referee's fees as an item of costs.
     Carr Business Enterprises, Inc. v. City of Chowchilla - filed August 20, 2008, Fifth District
     Cite as 2008 SOS 5055

Where general contractor indisputably did not retain control over methods and materials subcontractor used for work at construction site, burden shifted to plaintiff to produce evidence that contractor retained control over safety conditions and practices at site and contributed to unsafe condition that caused plaintiff’s injury. Cal-OSHA regulations requiring railing to be placed on elevated platforms like the one plaintiff fell from did not expand general contractor’s common law duty of care toward subcontractor’s employee.
     Madden v. Summit View, Inc. - filed August 11, 2008, First District, Div. One
     Cite as 2008 SOS 4907

-Civil Procedure-

Where plaintiff’s settlement with joint tortfeasors provided for payment to plaintiff, who then obtained jury verdict against non-settling defendant, but amount of verdict was less than settlement, reducing net judgment against defendant to zero, plaintiff categorically qualified as a prevailing party for attorney fees determination. Where defendants were husband and wife sued as a result of their joint sale of a home, and jury verdict was against husband but in favor of wife, their unity of interest prevented wife from categorically qualifying as a prevailing party.

     Wakefield v. Bohlin - filed December 15, 2006, Sixth District

     Cite as 2006 SOS 6043 


-Civil Procedure-

Arbitrator had no duty to disclose his prior service in superior court program as an uncompensated mediator in another matter where plaintiff’s attorney represented a party who had nothing to do with the present case. Trial court did not err in refusing to vacate the arbitration award based on arbitrator’s failure to disclose his prior service.

     Guseinov v. Burns - filed December 15, 2006, Second District, Div. Five

     Cite as 2006 SOS 6056 


Where parties entered into agreement for binding mediation with no clearly agreed upon definition of a what that meant and later entered into settlement agreement but disagreed as to its implementation, mediator’s determination as to how settlement agreement should be enforced was not enforceable by court under Code of Civil Procedure Sec. 664.6.

     Lindsay v. Lewandowski - filed May 31, 2006, Fourth District, Div. Three

     Cite as 2006 SOS 2775



California courts may exercise personal jurisdiction over out-of-state hotels that conduct no business and have no bank accounts or employees in California, but which advertise heavily in the state and obtain a significant percentage of their business from state residents, and solicit reservations from state residents through the Internet and toll-free phone numbers.

     Snowney v. Harrah's Entertainment, Inc. - filed June 6, 2005

     Cite as 2005 SOS 2672



Arbitrator did not exceed authority by awarding attorney fees pursuant to statute, and trial court’s conclusion that arbitrator had misapplied case law interpreting the statute was not a proper basis on which to vacate the award. Any such misapplication would have been an error of law, not subject to judicial review, rather than an act in excess of authority.

     Taylor v. Van-Catlin Construction-filed June 29, 2005, Sixth District

     Cite as 2005 SOS 3285



Evidence plaintiff paid his own medical bills is admissible to rebut inference that plaintiff incurred unnecessary expenses or is malingering. Exclusion of such evidence under Evidence Code Sec. 352 was an abuse of discretion absent specific findings as to how jury was confused or misled, and was prejudicial where jury awarded plaintiff less in damages than his total medical expenses.

     Smalley v. Baty

     filed April 26, 2005, Third District

     Cite as 2005 SOS 2075



Legislation extending limitations period for personal injury action from one year to two years applies to all claims as to which one-year period had not yet expired when legislation took effect on January 1, 2003.

     Andonagui v. May Department Stores Company

     filed April 13, 2005, Second District, Div. Five

     Cite as 2005 SOS 1870



Nathan B. Hoffman, AV-Preeminent 

Estate & Trust, Elder Law, Real Estate/Construction and Business Litigation

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