Thursday, October 30, 2014

Clearing the Decks.

So regular readers (should you exist) might have noticed that my posting frequency has gone craptastic over the last couple weeks.  That’s what expedited cases do to a guy. Maybe more about that later. 

I’ve fallen rather behind. In an effort to remain comprehensive—I believe that I’ve hit every published case of procedural significance from the get-go—I'm going to have to run through things a little shorter than ordinary. Over the next couple posts I am going to give be more summary capsules than either the general write ups or the occasional deeper analysis I’ve tried to provide. 

Let’s start with a few:

Zucchet v. Galardi, No. D064104 (D4d1 Sept. 25, 2014)

This is a malicious prosecution case brought against a testifying informant after the now-plaintiff got acquitted in a federal wire fraud charges.  That obviously draws an anti-SLAPP motion, which gets denied because although malicious prosecution cases almost always arise from protected activity, the plaintiff showed a probability of prevailing.  On appeal, the court first holds that the Flatley “illegal speech” exception does not apply. Although the allegation is that Galardi’s speech—perjury—was illegal, it was not conceded or conclusively established. So the first prong was met. As to success, an informant can be sued for malicious prosecution only when he is the catalyst for the investigation or charges. Simply providing false evidence in an ongoing investigation—the apparent facts here—is too remote from the decision to prosecute to merit liability. So the plaintiff had no chance of success. Reversed.

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Najah v. Scottsdale Ins. Co., No. B241097 (D2d4 Sept. 30, 2014)

In a foreclosure case where defendant felt pretty good about its chances, it defendant made an offer of compromise under Code of Civil Procedure § 998 offer for thirty grand.  Defendant won and the court shifted costs.  On appeal, the plaintiff unsuccessfully argued that the court abused its discretion in failing to find the § 998 offer was in bad faith.  Although plaintiff’s demand was $500k, when there is a reasonable possibility that liability cannot be established, the defendant does not act in bad faith in making a low offer. Affirmed.

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Hernandez v. Siegel, No. A139653 (D1d5 Sept. 30, 2014)

In a FEHA case, where there is a fee award to plaintiff’s attorney, who gets the post judgment interest on that award? Attorney or client? In Flannery v. Prentice, 26 Cal. 4th 572 (2001) the California Supreme Court held that FEHA fee awards belong to the attorney unless the retainer says otherwise.  The agreement here was silent on interest.  But because the attorney is the judgment creditor on that award, the interest goes to the lawyer. Affirmed.

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Ellis Law Grp. v. Nev. City Sugar Loaf Props., No C072820 (Oct. 3, 2014)

When a law firm is represented by one of its members and prevails on an anti-SLAPP motion, the firm counts as self-represented and doesn’t get fees. This court here holds that that rule stands firm even when the member pretends to be an independent contractor. Reversed.

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 Larson v. UHS of Rancho Springs, No. G050081 (D3 Oct. 2, 2014)

This case mostly involves what statute of limitations applies to tort claims against doctors.  But it does address the sham complaint rule—which requires a good reason for the plaintiff to depart from bad or fatal facts pleaded in a prior complaint.  According to the court here, that includes bad or fatal facts pleaded in prior cases over the same subject matter that were dismissed without prejudice. Affirmed.

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Meister v. Mensinger, No. H036861 (D6 Oct. 6, 2014)

In a corporate dissolution case, the Sixth District reverses the trial court for finding that a breach of fiduciary duty occurred, but there were no damages. The opinion contains an extensive discussion of the various potential remedies for fiduciary breaches, including damages, restitution, and constructive trust. 
There’s a second issue that deals with the production of the dissolved company’s electronic accounting records.  Defendants resisted production, and trial court, after briefing on the issue, ordered them produced, but only post-trial after it ordered an accounting on potential damages.  Although the opinion is not all that clear, the case appears to say that a party seeking digital accounting records is entitled to receive them in a timely manner for its experts to conduct an analysis.  Unfortunately a key question—just when is a party entitled to obtain a native format copy of its adversary’s accounting system—remains unanswered. Reversed.

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