When seeking a default judgment, plaintiff indicated in his form declaration he was seeking damages and costs. After the court entered the default judgment, plaintiff filed a noticed motion seeking an award of attorney fees as authorized under the applicable statute. The trial court denied the motion and the Court of Appeal affirmed. A default judgment […]
Arbitration Is ” Trial On The Merits. ”
After plaintiffs lost their contract claim in judicial arbitration, and the arbitrator awarded attorney fees to defendants, plaintiffs, after first filing a demand for trial de novo, filed a voluntary dismissal of their action. Defendants moved for judgment on the attorney fee award and the trial court granted the motion. Plaintiffs appealed, contending that, before judgment […]
National Childhood Vaccine Injury Act.
The National Childhood Vaccine Injury Act (42 U.S.C. §300aa-22(b)(1)) provides that vaccine manufacturers shall not be liable in a civil action for injury or death associated with the administration of the vaccine. In Bruesewitz v. Wyeth, LLC (U.S. Sup. Ct.; February 22, 2011) 131 S.Ct. 1068, [179 L.Ed.2d 1], the parents of a child allegedly disabled […]
Cost Of Subpoenaed Peace Officer — Attorney May Be Liable For Reimbursing Public Agency.
Government Code section 68097.2 provides that when a peace officer is subpoenaed, “the party at whose request the subpoena is issued” must reimburse the public entity. In Maddox v. City of Costa Mesa (Cal. App. Fourth Dist., Div. 3; March 24, 2011) 193 Cal.App.4th 1098, [122 Cal.Rptr.3d 629], the attorney signed the subpoena. When presented with a […]
Court Has Jurisdiction To Order Refund Of Overpaid Medical Lien.
After he obtained a partial settlement of a medical malpractice suit, plaintiff paid Medi-Cal $440,000 in “partial reimbursement” of its lien. After further settlements, the trial court ruled that plaintiff had overpaid Medi-Cal $250,000 but it also ruled it lacked jurisdiction to order a refund. The Court of Appeal disagreed. Under Welfare & Institutions Code section […]
No Attorney-Client Relationship Created In Agreement To Be Available On Future Legal Matters.
In Banning Ranch Conservancy v. Sup.Ct. (City of Newport Beach) (Cal. App. Fourth Dist., Div. 3; March 22, 2011) 193 Cal.App.4th 903, [123 Cal.Rptr.3d 348], a law firm previously represented city on an unrelated matter. It also entered into an agreement with the city to provide future legal services “as requested,” conditioned on the firm’s “ability to take on the […]
One-Year Statute Of Limitations Applies In Action Against Attorney For Malicious Prosecution.
California Code of Civil Procedure section 340.6 specifies a one-year statute of limitations in actions against attorneys “arising in performance of professional services, except for actions for actual fraud.” Section 335.1 specifies a general two-year statute of limitations applicable to actions for malicious prosecution. Plaintiff sued his opponent in an earlier suit and her attorney for malicious […]
Court May Issue Writ Of Attachment While Arbitration Is Pending.
After beginning arbitration proceedings, plaintiff applied to the court for a writ of attachment supported by a showing of potential insolvency of defendant which might render an award in arbitration ineffectual. The court issued the writ and the Court of Appeal affirmed. California Retail Portfolio Fund GMBH & Co. v. Hopkins Real Estate Group (Cal. App. […]
Retaliation For Oral Complaint Is Covered Under Fair Labor Standards Act Of 1938.
The Fair Labor Standards Act of 1983 forbids employers from discharging an employee because the employee has “filed any complaint” under the Act. Employee orally complained about the illegal location of time clocks which resulted in employees not receiving credit for all the time they were entitled to. Employer fired employee and he sued under the […]
Notice And Hearing Required Before Court May Order Sanctions.
In Marriage of Duris (Cal. App. Second Dist., Div. 6; March 14, 2011) 193 Cal.App.4th 510, [123 Cal.Rptr.3d 150], the court conducted a hearing on a motion to modify child support. At the conclusion of the hearing, the court ordered the moving party to pay $10,000 in sanctions because of “unnecessary legal activity.” The Court of Appeal reversed. […]
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