Tales from The Trenches
Tale No. 12 What just happened?!?
It had been more than three years since plaintiff had filed the complaint with the court. The defendant had actual, as well as constructive, knowledge of the suit; she had appeared, filed an answer, propounded and answered written discovery. Shortly before the defendant’s deposition, the defendant advised her attorney she had never been served with the complaint or summons! [The failure to confirm that detail was a major “oops” on the attorney’s part].
Notwithstanding the plaintiff’s attorney’s several more or less compelling excuses for the delay to prosecute the case, i.e serve the defendant with the complaint and bring the case to trial within three years, including having to replace the office computers and case management system to make it Y2K compliant, and even though the defendant had not been “prejudiced” (the court disregarded the cost and time incurred in defending the action), the defendant’s motion for a dismissal for failure to timely serve the complaint and to diligently prosecute the case was granted!
TALE NO. 11 A good rule to practice by - what goes around comes around
Your editor realized one day late that she had neglected to serve the expert witness demand. She called opposing counsel, who had also missed the deadline to serve the demand. They stipulated, which was confirmed in writing, to exchange demands that same day, and that the demand would be deemed timely served…
In another case, an attorney refused to grant an extension for the other party to respond to discovery, threatening to seek issue preclusion and terminating sanctions … when that attorney later needed an extension to respond to a motion for summary judgment, the request was denied.
As a corollary to the above rule, attorneys and judges have a long memory and the legal community is a small community. The other attorneys in the courtroom, and the judge, will remember that you were apparently clueless about the case or arguments to be made, misrepresented the facts, reneged on an agreement, or insulted your opposing counsel …
TALE NO. 10. You will have your Day of Humiliation
If your client is the defendant in the civil case heard in the afternoon by a judge who presides over misdemeanor cases in the morning, your client will very likely be presumed guilty. The case in point was a property damage case arising out of a motor vehicle accident, where the judge awarded to the plaintiff not only the cost of repair of the property, but also the diminished value of the vehicle, and costs.
In another case where both parties adamantly refused to settle, at the pre-trial conference the judge denied all the defense motions in limine, without consideration of the merits – and told defense counsel that the case would have to settle. Since the case was not such as would justify an appeal, the parties settled –on terms virtually dictated by counsel for plaintiff
Tale No. 9 When a statute has unintended consequences …
Or when your best friend is an overworked court clerk.
C.C.P. section 472(a) allows a pleading to be amended…after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party. The court in Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156 observed that all too often litigants who appear in propria persona deliberately attempt to capitalize upon their own ignorance or appearance of ignorance.
A few years ago, a plaintiff appearing in pro per filed a complaint to which the defendant demurred. A few days before the hearing on the demurrer, plaintiff filed and served an amended complaint. Defendant filed a demurrer to the amended complaint, but a few days or hours before the hearing, (and without seeking leave of court) plaintiff filed and served a second (then third, fourth and fifth) amended complaint and the demurrer was denied – on the grounds an amended complaint had been filed. Approximately ½ hour before the hearing on the demurrer to the fifth amended complaint, plaintiff served the 6th amended complaint on counsel and left the original at the court clerk’s counter for filing, but neglected to deliver a courtesy copy to the judge’s chambers. The sixth amended complaint was not filed and the demurrer to the fifth amended complaint was heard and sustained, without leave to amend. (plaintiff failed to appear at the hearing – trusting the demurrer would be denied).
The sixth amended complaint was subsequently discovered in a box beneath the court clerk’s counter when plaintiff sought to create the record for appeal.
Tale No. 8 A Whodunit
A workman was killed at a construction site. The police began questioning a number of the other workers. Based on past brushes with the law, many of the workers were considered prime suspects. They were a motley crew:
The electrician was suspected of wire tapping once, but was never charged. The carpenter thought he was a stud. He tried to frame another man one time. The glazier went to great panes to conceal his past. He still claims that he didn’t do anything; that he was framed. The painter had a brush with the law several years ago. The heating, ventilation and air conditioning contractor was known to pack heat. He was arrested once but duct the charges. The mason was suspect because he gets stoned regularly. The cabinet maker is an accomplished counter fitter. The autopsy led the police to arrest the carpenter who confessed. The evidence against him was irrefutable, because it was found that the workman, when he died, was hammered.[regrettably your editor is unable to attribute this Tale]
Tale No. 7
Tale No. 6 What was the client thinking?!?
The lawsuit arose out of a minor impact motor vehicle accident. There were no serious injuries, the parties exchanged information, the police were not called and no police report was prepared. The injured passenger in the car that was struck sued the driver of the other car for his medical expenses and lost wages.
The person named in the complaint and served by counsel for plaintiff met with her attorney. She advised the attorney that she was the driver of the car involved in the subject accident, and had caused the accident. The named defendant answered written discovery, under oath. As the parties and their respective attorneys were walking into the defendant’s deposition, plaintiff’s attorney was made aware by his client that the “defendant” was not, in fact, the person who was driving the car involved in the accident. Nevertheless, the deposition went forward and the defendant testified that she was the person driving the vehicle that struck the car in which the plaintiff was a passenger.
Several months later, the client admitted to her attorney that her daughter had been driving and had given her mother’s name to the plaintiff, who had neglected to ask for a driver’s license.
Tale No. 5 Caveat Emptor, or in this instance attorney beware!
To be enforceable a settlement agreement must be signed by the party. Plaintiff’s attorney represented to defense counsel his clients had agreed to the settlement and defense counsel, relying on the representation, neglected to post jury fees. At the pre-trial conference the plaintiff advised the court he had changed his mind, there was no settlement and he wanted to go to trial – a court trial. The judge ruled that since the plaintiff had not signed a settlement agreement there was no enforceable settlement, and further that the defense had waived the right to a jury trial by failing to post jury fees, the reason for the failure being immaterial.
But the defense motion to set aside the jury waiver was granted and the matter was set for jury trial When the plaintiff was again faced with a jury trial, the case settled on the terms as originally agreed!
Tale No. 4. “Don't make a straight line crooked…”
As Matthew McConaughey advised on the “Tonight Show with Steven Colbert” on 08/24/17.
A client prepared and executed a two page general power of attorney. The client’s attorney asked to review it and then advised the client it was not adequate; the Durable Power of Attorney drafted by the attorney was 42 pages long and described in exacting detail each and every one of the “powers” of the attorney in fact. But the POA drafted by the attorney did not specifically state the attorney in fact could close the bank account of the client’s deceased spouse (which was originally the intended purpose of the POA), and the bank’s legal department was unable to determine whether that could be inferred from any of the “powers” enumerated. The two page POA saved the day.
Tale No. 3
Judges don’t like to make decisions.
An attorney once advised your editor that judges don’t like to make decisions. It might be because one party is local and other from out of town; or because the issue should be decided one way based on a strict interpretation of the law and another on grounds of what would be morally right. Sometimes it is a matter of a failure to provide the judge with sufficient authority such that he can be fairly confident he will not be overruled on appeal.
Sometimes the judge’s reluctance to rule can be used to your advantage… a few years ago your editor was involved in a case in which the tentative ruling on a summary judgment motion went against the client. At oral argument, the judge wanted to find for plaintiff, but the facts and the law clearly supported the defendant’s position, so the judge took the ruling under advisement. The judge never issued a decision; but that meant that he didn’t affirm the tentative ruling either! The judge’s failure to issue a decision was effectively used to negotiate a better settlement for the defendant.
Tale No. 2
It’s not quite an episode of “American Greed”
(American Greed is a “dissection of the dark side of the American Dream… involving credit card scams, identity theft, counterfeiting and Ponzi schemes.”)
A homeowner hired a contractor to build a custom designed home, then sued the contractor for “defective work”, because she didn’t like the finished product (your editor was advised that the house really was “ugly”). Another homeowner (with a Jaguar in the garage) paid several million dollars cash for a home in a new development, then sued the contractor; the homeowner was overheard admitting that he made the claim to get money to remodel the house. An employee claimed to have been injured in a motor vehicle accident while on the job; workers’ compensation awarded him chiropractic care for life. He then sued the driver of the other car involved; the driver was determined to have not caused the claimed accident-related injury. Workers’ compensation advised that the finding meant that plaintiff would no longer receive any chiropractic care for the “disability” on the grounds it was not a “work-related” injury.
Tale No. 1.
Your editor was in court a few years ago, listening to the law and motion calendar when a few lines from a Kenny Rogers song called “The Gambler” came to mind. “You’ve got to know when to hold ‘em/Know when to fold ‘em..”.
In the tentative ruling the judge had granted the moving party’s summary judgment motion, but the prevailing party’s attorney made argument after argument, despite the judge’s becoming visibly increasingly impatient … finally the judge “ruled”, reversing the tentative ruling on the grounds that the attorney had convinced him that his motion should not have been granted.
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