Tip No. 18 A short lesson in fixing an “oops”...

...and a real life application of the doctrine of estoppel.

When an attorney misses the deadline to respond to a motion and judgment is taken against his client, C.C.P. section 473 provides a means for setting aside the judgment.

When an attorney is trying to negotiate a resolution to the dispute to avoid litigation and trusts the other side that says “We’re almost there…” and the statute of limitation runs, the attorney should invoke the doctrine of estoppel and file a motion for leave to file the complaint based on the holding in Carruth v. Fritch (1950) 36 Cal.2d 426, that one cannot justly or equitably cause his adversary to subject his claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought. The statute of limitations may never be used to assure the success of a fraud.

 When the court simply gets it wrong, the attorney should consider a motion for reconsideration or a renewal of the original motion, or perhaps a writ (of review for example).

Tale No. 18. Here’s a how de do… Here’s a pretty mess…

The plaintiffs were injured in a motor vehicle accident and sued the driver of the other vehicle for damages. The plaintiffs’ attorney had been advised by the clients’ son that his parents had returned to Belize (where they lived); he was also advised they did not have a telephone, or postal service, and that the only way to reach them was by a monthly delivery by Federal Express. The son offered to facilitate communications between the attorney and his parents. The discovery requests were sent to the son and after an appropriate delay the verified responses were returned with the clients’ notarized signatures (which the son had advised was required in Belize). Eventually the defendant made a settlement offer which was accepted; the settlement agreement was returned with the clients’ notarized signatures and the settlement check forwarded to the clients – care of the clients’ son.

Some time later the plaintiffs’ attorney came to believe that the clients’ signatures on the discovery responses and the settlement agreement had been forged by the son and the son’s girlfriend. Your editor does not know what prompted the attorney’s concern, nor what the attorney decided to do; when your editor last spoke to the attorney, he was considering whether he should travel to Belize to meet with the clients and possibly have to unravel the settlement or let the proverbial sleeping dog lie…What would you do?

Tip No. 17 A useful Tip …

 In the case of the claim for child support described in the Tales from the Trenches No. 17, the husband intentionally neglected to provide an address when he served his ex-wife with the papers for the court hearing on the claim for increased child support in California. It was your editor’s understanding that he claimed to be in mortal fear of his ex-wife - which would be the only proper grounds for such a ploy.

 Your editor was fortunate to have found an experienced and knowledgeable process server. He advised that the papers should be “timely” served on the court clerk, upon which service would be deemed complete. The clerk then personally served the opposition papers on the ex-husband when the case was called and he acknowledged his presence.

 [Code of Civil Procedure section 1011(b); California Rule of Court, rule 3.252].

Tale No. 17 The law will get you to court...but sometimes the facts decide the case

A few years ago a woman came to your editor for help. She had left her husband and relocated to California from Georgia to start a new life; she intended to bring out her two young children when she was settled. After leaving Georgia, her husband filed for divorce, custody of the children, and child support. The client advised she had received notice of the custody hearing and claim for child support with less than 24 hours to travel from California to Georgia to appear – the court entered judgment by default. The client's ex-husband had followed her to California with the children and was seeking an increase in the monthly child support; the increase would have meant he was taking approximately 90% of his ex-wife’s salary!

Your editor consulted attorneys with more experience in family law and was advised to get a copy of the divorce decree from the Georgia court and appeal the order. There was neither the time nor money for that (the case was pro bono and the hearing set for the following week).

Your editor argued in response to the petition that the amount of the claim for child support was exorbitant. It came out at the hearing that the ex-husband, although “able bodied” (as the judge described him) and as ex-Army had received training in transferrable job skills, was not working – and expected his ex-wife to continue to support him through the “child support” payments. It also came out that the children had been taken by child services in California. The grounds for the claim for child support had been effectively removed!

The court not only declined to increase the child support award, but reversed the support award of the Georgia court – not sure the judge had jurisdiction to do that, but she did it anyway!

TIP NO. 16 So, the jury was paying attention after all…

.. and decided the case on an issue apparently ignored, but certainly not addressed during trial, by counsel.

The case involved a claim for personal injuries arising out of a motor vehicle accident. The complaint was timely filed and was diligently prosecuted.

The case was defensed. But, when the jury was polled, counsel was advised the jury thought the plaintiff’s case was fraudulent because the accident had occurred approximately two years before the complaint was filed and the case was not brought to trial until two more years had passed!
Blame “LA Law” and “Law and Order” where a case is brought to trial before the one hour episode concludes. And yet, those television shows may well be the reason one person agreed to participate in the process and sit on the jury...and take it seriously enough to actually and seriously participate in deliberations.

The lesson: trial counsel should find a way to educate the jurors on the reasons for the delay in a case reaching the jury.

TALE NO. 16 Defense counsel was at the top of his game in this case…

The defendant had spent the evening at a “crab feed” where he had had a couple of beers with dinner. As the defendant was driving home, he stopped at a controlled intersection not far from where the event had been held. He noticed the plaintiff approaching the intersection from the opposite direction, and changing lanes into the left turn lane. Having the right of way, the defendant proceeded into the intersection. Plaintiff made a left turn in front of the defendant, who braked but did not have time to stop before hitting the plaintiff’s car. At the scene, the defendant was arrested and charged with DUI, as well as responsibility for causing the collision.

 During discovery plaintiff admitted to having seen the defendant stop, and further admitted that he thought he could beat the defendant through the intersection, so he accelerated into the intersection. The defense established that the plaintiff had made an unsafe left turn right in front of the defendant who was already in the intersection and traveling at a safe speed for conditions, and that the defendant’s conduct did not contribute to the occurrence of the accident. Not only was the plaintiff’s claim for punitive damages denied, but the case was “defensed” and the DUI charges were dropped.

Tip No. 15 To paraphrase Shakespeare’s Hamlet “With prejudice” or “without prejudice” … that is the question

The term “without prejudice” sometimes means that there is no decision of the controversy on its merits. Thus, where a motion is denied “without prejudice” it is meant as a declaration that no rights or privileges of the party concerned are to be considered as waived or lost, except insofar as they may be expressly conceded or decided, and will prevent the decree of dismissal from operating as a bar to a subsequent suit on the same cause of action. Alternatively, the term "without prejudice" may mean that the decision was on the merits, on the grounds the moving party failed to satisfy the statutory requirements; however, the moving party is not precluded from pursuing another method to litigate the claims. 

A dismissal “with prejudice” is an adjudication on the merits and final disposition, barring the right to bring or maintain an action on the same claim or cause; it is res judicata as to every matter litigated. 

That being said, in practice a judgment of dismissal without qualifying words is presumed to be on the merits (i.e., with prejudice).

Tale No. 15 Specialization sometimes means not seeing the forest for the trees…

In an episode of “Doc Martin” on PBS, Doc Martin observed that a colleague who had specialized saw every complaint in terms of her particular specialty and consequently failed to properly diagnose the complaint of the patient scheduled for surgery.

 Your editor was recently consulted about a rental agreement. The property manager rented a residential unit to new tenants at well below the market rate, and accepted the first month’s rent. The rental agreement was an oral agreement; the written rental agreement was not signed by the property manager or tenant, and further omitted mention of certain terms apparently included in the oral agreement, such as the use of one of the limited parking spaces.

The property owner was advised by a landlord-tenant lawyer that the oral rental agreement was valid and binding, and perhaps under the local landlord-tenant regulations it was. However, the attorney apparently failed to consider (he certainly failed to advise the client) that the Statute of Frauds renders invalid an oral lease of real property, as well as a contract with a duration of more than one year. Nor did he advise the client property owner that she could rescind and cancel the rental agreement on the grounds it was a fraud on the property owner perpetrated by a disgruntled property manager and complicit tenants.

TIP NO. 14. Sound advice …

Sir Robert Wright Chief Justice of the King's Bench, in the Trial of the Seven Bishops in 1688, reportedly admonished the lawyers: “First settle what the case is, before you argue it.”  

In Southern Calif. Enterprises v. D. N. & E. Walter & Co. (1947) 78 Cal.App.2d 750 the court held that a litigant cannot rely, nor may a decision be based, on previous opinions that are not pertinent by reason of dissimilarity of facts. Rules applicable to the decision in which they appear cannot be repeated in exemplification of a theory different from that to which they were applied in the case where the opinion was rendered.

In 1602, Lord Coke wrote in Blade's Case “He who will have advantage of precedents, ought to search for them at his peril…for, the Court will not search for them…[and if no] precedents are shewn, the Court ought to adjudge according to law and reason.”

On that very issue, the court recently held in DiGenova v. State Board of Education (1962) 57 Cal.2d 167 that the doctrine of the law of the case does not extend to points of law which might have been but were not presented and determined… and again in People v. Ceballos (1974) 12 Cal.3d 470 the court held that a case is not authority for an issue not raised by its facts nor considered.

TALE NO. 14 Kenny Rogers “The Gambler”, “You’ve got to know when to hold ‘em/Know when to fold ‘em...”

Defendant prevailed at arbitration and attempted to settle the case without resorting to converting the award into a judgment. Plaintiff rejected all settlement efforts and the defendant was forced to bring a motion to confirm the award as a judgment.  Plaintiff filed an objection and delayed the hearing on the motion - using the delay to file for bankruptcy.

Notwithstanding the bankruptcy, an argument could, ethically and in good faith on the facts of the particular case, be made for confirming the award as a judgment. The judge did so (i.e. confirmed the award as a judgment) on the record, but refused to sign the written order confirming the award, and admonished the attorney to not insist on a signed order.

Although the order of judgment was not signed, the ruling granting the motion to convert the award into a judgment was on the record.

TIP NO. 13 To paraphrase the title of a jazz song by Louis Jordan – Is it is or is it ain’t the right motion…

The practice guides treat each motion as a discrete thing – but they are not as the case law clearly indicates. The appropriate motion is determined by the facts of the case… or by the equities; or by the jurisdiction conferred by statute; or the court’s inherent discretion.

For example, a party requesting that the court reconsider a ruling has the option of a motion for reconsideration, a 473 motion, or a writ of review or mandate. The court has discretion to “construe” a motion for reconsideration as a request to renew the original motion, or as an analogous motion for a new trial or a motion to vacate… A complaint for declaratory relief and petition for a writ of mandate may be combined in a single action.

 The court in Passavanti v. Williams (1990) 225 Cal.App.3d 1602 suggested that assuming the trial court has the authority to consider a motion regardless of its label, for the benefit of the opposing party and for purposes of appellate review, the court should clearly indicate its intention to do so and to clearly identify the motion it is considering.

TALE NO. 13 It was a Perry Mason moment…

The case involved a rear-end collision at the stop light where the freeway exit merged into Cesar Chavez Street. To prove the plaintiff’s claim it was a high speed impact causing serious damage, plaintiff’s attorney called as an expert witness at trial a collision repair specialist to opine that the impact was so severe the undercarriage of the plaintiff’s car was torqued by the impact.

On direct examination the expert gave his name and place of employment; he was shown a photograph of the rear bumper of the plaintiff’s car and described the damage to the undercarriage. 

Cross-examination clarified the fact that the expert who was called at trial was not the expert who was disclosed in plaintiff’s expert disclosure nor the expert who appeared on the plaintiff’s witness list. Further cross-examination revealed that the expert had not seen any photographs other than the one of the rear bumper introduced in to evidence, that the photograph did not show that the undercarriage was torqued and that the expert had not seen the vehicle in question, let alone actually inspected it for damage.