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New Cases of Interest - December 12, 2014
Old Republic Construction Program Group v. The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859. This is a SLAPP case. A worker's compensation insurer sued a law firm contending that a stipulation it had entered into required the worker's compensation insurer's consent before distributing funds to the lawyers' client and that the lawyers violated the stipulation and distributed the funds without the insurer's consent. The lawyers brought a motion under the SLAPP statute. The trial court denied the motion and the denial was upheld by the Court of appeal. In denying the motion the court held that the claims made by the insurance company, that the lawyers had wrongfully withdrawn funds in violation of the stipulation, did not "arise from" the protected activity of entering into the stipulation itself because there was nothing wrongful about entering into the stipulation. The claims instead arose from the withdrawal of funds which were the subject matter of the stipulation and the withdrawal of funds was not protected conduct under the statute and therefore not within its scope.
Kenne v. Stennis (2014) 230 Cal.App.4th 953. This is also a SLAPP case. Defendant had filed a SLAPP motion based on two civil harassment petitions. The Court of Appeal found that the motion with respect to the plaintiff's claims for malicious prosecution and intentional infliction of emotional distress did fall within the SLAPP statute because the conduct underlying those causes of action was protected activity under CCP § 425.16. The court also found the plaintiff could not prevail on the merits because her malicious prosecution claim could not be based on the filing of a petition under CCP § 527.6 and the conduct underlying her other tort claims was privileged under Civil Code § 47(b). Other causes of action brought by the plaintiff for abuse of process, liable and slander were ones in which the plaintiff could not prevail as a matter of law because they were barred by the litigation privilege.
First California Bank v. McDonald (2014) 230 Cal.App.4th 1202. This is an action involving a judicial foreclosure to collect on a loan made to a husband and wife secured by two different parcels of real estate. Under the facts, the court determined that the bank did not comply with the provisions of the one form of action rule, CCP § 726. Because the bank had released one property as collateral for the loan with the consent of the wife but without the consent of the representative of her deceased husband's estate, and had allowed that property to be sold through a private sale, the bank had failed to exhaust all of its security in one action as required by CCP § 726.
Evilsizor v. Sweeney (2014) 230 Cal.App.4th 1304. In a marital dissolution case a husband sought a subpoena for bank records that included financial information about his father in law. A motion to quash was brought by the father-in-law and the husband subsequently agreed to amend the subpoena. The father-in-law, however, did not in a timely fashion withdraw the motion to quash and the trial court entered sanctions. The sanctions were upheld by the court of appeal, with the court of appeal finding that a trial court may impose sanctions against a litigant for pursuing a motion to quash that even if it was filed legitimately initially, was rendered unnecessary by the subsequent amendment or withdrawal of the subpoena to which it was addressed. Pursuing a pending motion to quash after it is no longer justified may be considered the "making" of a motion under CCP § 1987.2(a) for the purpose of imposing sanctions.