Archive for October, 2007

Ghost Writing

Wednesday, October 31st, 2007

Halloween seems the appropriate time to discuss the ethics of “ghost writing” legal pleadings.  Greg May over at California Blog of Appeal has a post on the issue of ghost writing pleadings for pro se litigants.  But what about ghost writing for other attorneys and organizations?

Recently a colleague came to me seeking advice on whether it violates any rules to file a ghost-written amicus brief — that is, a brief actually written by the attorney for the party, but which would be filed in the name of an amicus organization over the signature of some other attorney.

While the California rules do not specifically address the issue, the United States Supreme Court amended their rules some time ago to require amici to disclose whether any of the parties wrote any portion of the amicus brief (Rule 37.6).

I do not think there is any concern with a party discussing legal issues with potential amici, or even recruiting amici to submit briefs to the court on particular legal issues.  In the end, however, that brief should reflect the legal and policy views of the amici. 

If we want the courts to pay attention to amicus briefs (and that is a different subject altogether), we should take care to ensure that the court has confidence that it is actually receiving third-party input rather than an extended brief of the parties to the action.

Cal. Supreme Court to review appearance of impropriety case

Wednesday, October 31st, 2007

The California Supreme Court has granted review in Morango Band of Mission Indians v. State Water Resources Control Board to decide whether a due process claim against an administrative tribunal can be sustained on a showing of only an appearance of impropriety.

I noted this case when it was decided by the Court of Appeal in August.  According to the Court of Appeal, the problem is created when attorneys from the Attorney General’s office serve both as “prosecutors” and “legal advisors” to the board, albeit not in the same case.  Nonetheless, since the board is in the position of relying on the deputy attorney general’s legal advice in one case, parties appearing before the board with that same deputy attorney general serving as prosecutor may understandably question the fairness of the proceeding.  If the board relies on that attorney for legal guidance, will it give special credence to his or her legal position as a prosecutor?

The California Supreme Court’s press release lists the issue for review in the case as follows:  “May a staff attorney for an administrative agency serve as a prosecutor in one matter while simultaneously serving as an advisor to the agency as decision maker in an unrelated matter, without violating the due process rights of the parties that appear before the agency.”

Stuart Somach of Somach, Simmons & Dunn (Sacramento) represents the plaintiff in the case and Deputy Attorney General Matthew Goldman is listed as lead attorney representing the Board.  Review was granted on October 24, 2007.

As I noted in my earlier post, this is a significant case in state administrative law.  Generally, one cannot state a due process objection based solely on an “appearance” of impropriety in an administrative proceeding, but must instead establish an actual conflict.  If the Court of Appeal decision is upheld, a number of California agencies will have to alter their practices.

Failure to secure a ruling on objections constitutes waiver

Tuesday, October 16th, 2007

Last week I noted the decision in Reid v. Google with the post “What if the trial court did not rule on your objections?”  The court in Reidrejected what it saw as the weight of authority and ruled that the trial court’s failure to rule on objections does not waive those objections for purposes of appeal.

Demonstrating that the Reidcourt has yet to pick up any converts, Division 7 of the Second District Court of Appeal quoted from earlier rulings yesterday to hold that “where counsel fails to obtain rulings on evidentiary objections in summary judgment proceedings, the objections are waived and are not preserved for appeal.”  (Kasparian v. Avalonbay Communities). 

The conflicting views of the courts of appeal have set the stage for Supreme Court review.

General contractor’s consent tolls statute of limitations for subs — notice is not required

Thursday, October 11th, 2007

The statute of limitations in building defect cases begins to run when the Home Owners Association knows that something is wrong — not when they know there is a legal cause of action.  Thus, once an HOA official sees water damage, the statute begins to run.  It does not start when the HOA’s inspector returns a report identifying potential causes of the damage.

Under California Civil Code §1375, the running of the statute of limitations for defects to common interest developments (such as condominiums) is tolled for a set period of time by service of a notice to the general contractor.  The purpose of the tolling is to allow the parties to come to an agreement without litigation for repair of the defects.  Thereafter, the general contractor and the HOA can agree to extend the period of tolling while they work through the issues raised by the HOA.

In Landale-Cameron Court v. Ahonen, the issue before the court was whether this tolling arrangement also tolled the statute of limitations for actions against the subcontractors who had no notice of the defects or the extended tolling agreement signed by the general contractor.  The court ruled that the tolling must extend to actions against the subs in order for the statutory scheme to work.  “Indeed, if the statute of limitations were tolled only against the builder and not also against party contractors and subcontractors, it would wreck havoc with the obvious intent of the tolling provision to provide additional time to resolve disputes prior to filing a lawsuit.”

This ruling is important for the HOA since the court also ruled that the HOA had no cause of action for breach of contract under a third party beneficiary theory.  Since the HOA was not in existence at the time of the contract, it could not be a third party beneficiary to the agreement.  That left the HOA with only the negligence cause of action, and the need to rely on the tolling provision of section 1375.

Supreme Court to review “pat down” searches at NFL games

Thursday, October 11th, 2007

How Appealing notes that Bob Egelko is reporting the California Supreme Court has accepted review in Sheehan v. The San Francisco 49ers.  I blogged about the appellate decision earlier this year (“Do you have the right to privacy if you know your privacy will be invaded?“).

Under the California Constitution, you a have right to privacy that is enforceable against both the government and other private parties.  In this case, the question is whether the Sheehans had a reasonable expectation of privacy since they had learned of the searches before they purchased their season tickets.  In other words, can a private company avoid the strictures of the constitutional right to privacy merely by giving notice that your privacy will be breached.

This will be an important case that will have implications for all of the new security screening that we have seen implemented since 9/11 — and may tell us something about the limits of private video surveillance that has becoming prevalent in both public and private spaces.

What if the trial court did not rule on your objections?

Tuesday, October 9th, 2007

Suppose your case is before the trial court on summary judgment and both parties have filed evidentiary objections to the declarations and exhibits supporting and opposing the motion.  What happens when the trial court does not expressly rule on those objections, but instead (pursuant to Biljac Associates v. First Interstate Bank, 218 Cal. App. 3d 1410 (1990)) states that it is basing its ruling on “competent and admissible evidence?”

According to the Sixth District Court of Appeals, the current weight of authority would find that such an action by the trial court results in a waiver by the objecting party of the objection.  In Reid v. Google, however, the Sixth District disagreed with those other courts.

The rule announced in Reid is that the objection is preserved.  The court will treat it as an objection on which the trial court had originally reserved its ruling on admissibility.  When the court fails to issue an express ruling on the objection, “it is presumed to have overruled it and admitted the challenged matterinto evidence.” (emphasis in original.).  On appeal, then, “the burden is on the objecting party to show that evidence presumptively considered by the trial court should instead disregarded in determining propriety of the order on the merits.”

Damages do not limit attorney fees

Thursday, October 4th, 2007

A standard argument made by defendants on the losing end of an attorney fee award is that the fees are disproportionate to the damages.  The Fifth District resoundingly rejected that complaint in Nichols v. City of Taft.

In addition to noting that the litigation was hard fought (in part due to the zealous representation of the defendant), the court rejected the idea that attorney fees were limited to the amount of the damages award.  As the court notes, “it is not uncommon for attorney fee awards to exceed compensatory damages” in employment discrimination cases.  The court also rejected the argument because the defendant had not backed up the claim with any “applicable California precedent.”

Big city rates not recoverable

Thursday, October 4th, 2007

When you apply for an award of attorney fees under Code of Civil Procedure §1021.5, your standard fee is not the relevant measure.  That is the lesson of this week’s ruling by the Fifth District Court of Appeal in Nichols v. City of Taft

The standard for calculating the “lodestar” under section 1021.5 is not the rate the attorney charges.  Instead, “[t]he lodestar figure is calculated using the reasonable rates for comparable legal services in the local community for noncontingent litigation of the same type…” (emphsis in original).

Out of town attorneys can get their higher standard fee only by establishing that local counsel is not available for the case.  Thus, in this action, the San Francisco attorneys will have to settle for Kern County rates — unless they can convince the trial court to add a multiplier on remand.

“Surprise factor” did not appear to be a good argument

Wednesday, October 3rd, 2007 is reporting on the oral argument today before the California Supreme Court in Rico v. Mitsubishi Motors.  At issue is whether an attorney can use the notes of opposing counsel after inadvertently obtaining a copy.  The attorney caught with the notes argued that the notes could be used as a surprise factor to impeach opposing expert witnesses.  According to’s Mike McKee, that argument did not go over well with the court.  McKee reports the Chief Justice’s response was “So the surprise factor is more important than the integrity of the court?”

That is not the type of question you want to hear at oral argument during the presentation of your case!

Court upholds property tax rule for domestic partners

Wednesday, October 3rd, 2007

Does the State Board of Equalization have authority to extend to domestic partners the same property tax relief enjoyed by married couples?  The Third District Court of Appeal upheld the constitutionality of the Board’s action in Strong v. State Board of Equalization.

At issue in the case is the provision of Proposition 13 that prohibits counties from reassessing property to full value until a change of ownership occurs.  After Proposition 13 was adopted, the Legislature defined “change of ownership” to exclude transfers between spouses.  This was later ratified by voters in another constitutional amendment.

In this ruling, the Court of Appeal upheld a decision by the Board of Equalization to grant the same benefit to transfers between domestic partners.  The exclusion was later adopted by the Legislature as an amendment to the Revenue and Tax Code.  This allows property to pass by will from one domestic partner to the other without incurring an increase in property taxes.

This ruling may have the effect of weakening the case of those now arguing before the California Supreme Court that restricting marriage to one man and one woman violates state equal protection guarantees.  (In re Marriage Cases, Cal. Supreme Court No. S147999.)  The California Legislature has worked to equalize benefits of domestic partners with those granted to married couples.  This undercut the arguments of those arguing that state equal protection guarantees require the state to extend the right to marriage to gay and lesbian couples.

Greg May is also commenting on this case over at the California Blog of Appeal.