The First Appellate District reverses the trial court and holds that the court was obligated to grant relief under the mandatory provision of Code of Civil Procedure section 473(b), where plaintiff presented a sworn declaration from his counsel attesting that counsel mistakenly failed to respond to the demurrer by timely filing an amended complaint. Continue reading
The Court of Appeals determines that a standard interspousal transfer grant deed (ITGD) meets the requirements for a transmutation of the character of marital property under Family Code section 852.
Section 852 provides in pertinent part: “(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” Continue reading
The California Supreme Court agrees with the Court of Appeals in Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Company, Inc. and holds that an actual undisclosed conflict of interest renders an attorney fee agreement, including the arbitration clause, unenforceable against public policy.
Contrary to the Court of Appeals, however, it concludes that the ethical violation does not “categorically disentitle the law firm from recovering the value of the services it rendered to the manufacturer.” Principals of equity may entitle the law firm to “some measure of compensation” as determined by the trial court.
The California Supreme Court holds that under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains a cause of action to which it is directed, unless the court grants discretionary relief and permits late filing under subdivision (f). (Newport Harbor Ventures LLC v. Morris Cerullo World Evangelism.)
To survive a demurrer in a civil case, the plaintiff must assert his claims before the statute of limitations expires. However, the statutory deadline may be extended—or tolled—if, among other reasons, the plaintiff is “imprisoned on a criminal charge” when the cause of action accrues. A cause of action accrues when a party is entitled to prosecute an action based upon it.
In a case of first impression, the Second Appellate District holds in Austin v. Medicis that a plaintiff is “imprisoned on a criminal charge” within the meaning of Code of Civil Procedure section 352.1 when plaintiff is serving a term of imprisonment in state prison–not when plaintiff is merely incarcerated, pretrial, in the county jail.
The California Supreme Court, in Lynch v. California Coastal Commission, holds that by accepting the benefits of a conditional use permit and building pursuant to the conditions, plaintiffs forfeited their right to maintain their objections to the conditional use. “By accepting the benefits of the permit and building the seawall, plaintiffs effectively forfeited the right to maintain their otherwise timely objections.”
The court reasoned that permit holders are obliged to accept the burdens of a permit along with its benefits. This rule stems from the equitable maxim: “He who takes the benefit must bear the burden.”
Plaintiffs obtained all the benefits of their permit when they built a seawall. They cannot now complain of its burdens, i.e., that the permit prohibits reconstruction of a lower stairway to the beach, that it expires in 20 years, and that the seawall cannot be relied upon for future blufftop redevelopment as a source of geological stability or protection unless plaintiffs obtain a new permit within the 20-year period.
The California Supreme Court, in Barry v. The State Bar, holds that a court lacking subject matter jurisdiction over a claim may nonetheless grant a special motion to strike the claim under section Code of Civil Procedure section 425.16, and thus may award attorney’s fees and costs to the prevailing defendant.
The California Supreme Court in L.A. County Bd. Supervisors v. Super. Ct. (ACLU of SoCal) holds that the attorney-client privilege applies to everything in an attorney’s invoice, including the amount of aggregate fees, when a legal matter remains pending and active “even if the information happens to be transmitted in a document that is not itself categorically privileged.” Continue reading
Code of Civil Procedure 170.6 provides the statutory basis to disqualify a judge from hearing a proceeding. A peremptory challenge is usually made by filing an affidavit or declaration under penalty of perjury that the judge is prejudiced against a party or attorney for a party using a locally approved form.
If the affidavit is duly presented (timely), no further act or proof is required and a new judge must be assigned, except that no party or attorney shall be permitted to make more than one such motion in any action or proceeding, and if there are multiple plaintiffs or defendants, only one motion for each side may be made.
What about the circumstance where an appeal is taken from a judgment or interim order? In that circumstance, section 170.6 provides that a successful party on appeal may exercise a second peremptory challenge provided the appeal is from a final judgment, but not if the appeal is from an interim order.
The case is McNair v. Superior Court (National Collegiate Athletic Assn.): “…[W]e hold that Code of Civil Procedure section 170.6, subdivision (a)(2) allows a party to exercise a second peremptory challenge only after prevailing in an appeal from a final judgment, but not following reversal of an interim decision.”