Contractual Attorney’s Fees Incurred in Bankruptcy Court May Be Awarded Post-Bankruptcy
December 31, 2008
Where a judgment awards attorney’s fees pursuant to contract, a court may later award further attorney’s fees as costs incurred to enforce that judgment. That’s the import of California Code of Civil Procedure section 685.040.
Attorney’s fees recoverable under section 685.040 include fees incurred by the prevailing party as creditor in the defendant’s bankruptcy proceeding. So held the Court of Appeal in
Chinese Yellow Pages Co. v. Chinese Overseas Marketing Service Corp., filed yesterday.
Topics: Attorney's Fees | No Comments »
Right to Discovery vs. Privacy Rights
December 30, 2008
IN CALIFORNIA, ONE’S address and phone number is considered protected private information. In fact, a person may express in writing his or her general preference that an employer not release that information to third parties. However, one’s general preference may change according to specific circumstances.
Today, in Crab Addison, Inc. v. Superior Court, the California Court of Appeal held that in a class action, an employer must disclose to an employee/plaintiff the contact information of its employees, reasoning that the right to disclosure outweighed any expectation of privacy arising out of an employee’s written general preference for nondisclosure.
Topics: Labor and Employment, Right to Privacy | No Comments »
Federal Preemption and Credit Reporting Agencies
December 29, 2008
After her car and purse were stolen, plaintiff’s identity was used to obtain a Sprint cell phone account. When the identity thief failed to pay the account, Sprint assigned the debt to defendant, a debt collection agency. The defendant collection agency demanded payment from the plaintiff. Despite her pleas to the defendant agency that she was a victim of identity theft, the defendant reported plaintiff’s “default” to several credit reporting agencies, without advising that the debt was contested, thus harming her credit score and damaging her credit reputation.
The plaintiff filed a complaint against the collection agency under California’s Consumer Credit Reporting Agencies Act, Civil Code section 1785.1 et seq. (CCRAA). The defendant moved for judgment on the pleadings on the ground that the federal Fair Credit Reporting Act preempts all private, state law rights of action that are based upon the wrongful acts of a furnisher of credit information.
The trial court granted the motion. Today, in Liceaga v. Debt Recovery Systems, LLC, the Court of Appeal affirmed.
Topics: Fair Credit Reporting Act | No Comments »
On the road
December 28, 2008
It was another windy day, but this time on the summit of Fremont Peak, overlooking Monterey Bay. Enjoy the postcard
Topics: Life | No Comments »
Structure Your Website to Attract Clients
December 26, 2008
The typical law firm website usually is structured as follows: Home, About, Attorney Profiles, Practice Areas, a contact page and perhaps one or two others. A surprising number of those websites get little or no traffic.
Why?
Because most people haven’t heard of those law firms. And because most people don’t know about them, it’s unlikely unlikely that an About or About Our Firm page would attract a prospective client.
What services does your firm offer a prospective client? What search terms is that prospective client likely to enter into a search engine?
A law firm site structured according to appropriate search terms is much more likely to get the attention of search engines — and bring business to your firm.
Topics: Web Design and Development | No Comments »
Anti-SLAPP and the Private Association
December 24, 2008
For the purposes of an anti-SLAPP motion, statements published to a private association can qualify as statements made in connection with a public issue or an issue of public interest. So held the California Court of Appeal in Hailstone v. Martinez, published yesterday.
However, because the plaintiff therein presented facts which, if found to be true, would establish that the defendants’ statements were made with malice and with reckless disregard for the truth, the Court of Appeal affirmed the trial court’s order denying the defendants’ anti-SLAPP motion.
Topics: anti-SLAPP | No Comments »
Of FEHA, the Tort Claims Act, and cat’s paws
December 23, 2008
Can a public entity be liable for a discretionary act which results in discrimination? Yes it can, as the Court of Appeal explained Friday in De Jung v. Superior Court of Sonoma County. And to add insult to injury, the public entity involved was the superior court.
Bear in mind that the Court of Appeal in De Jung reversed a summary judgment for the superior court and remanded the case to trial court. There has yet to be any judgment for the plaintiff. But the principal remains.
Topics: Fair Employment and Housing, Tort Claims Act | No Comments »
Motherhood, Intent and the Unruh Act
December 22, 2008
Is it true that no good deed goes unpunished? Well, not always.
As a promotion, the Los Angeles Angels gave away tote bags as Mothers Day gifts at its Mothers Day game. Rather than verify whether the recipient was indeed a mother, the team gave away the tote bags to women over 18.
At the game, plaintiff, a male, was denied a tote bag. He sued the team under the Unruh Act (California Civil Code section 51). He alleged the team was liable for gender discrimination. He lost. He appealed. He lost again.
In Cohn v. Corinthian Colleges, Inc., published today, the California Court of Appeal held that the issue was not one of gender discrimination but of treatment of mothers versus the rest of the population. It stated:
It is undisputed the Angels’ intent was to honor mothers on Mother’s Day. Due to the volume of attendees and time pressure, it would be impracticable for the Angels to make sure each woman who received a tote bag was in fact a mother. Instead, the Angels adopted a practical approach of giving tote bags to all females over 18 years old. Thus, the intended discrimination is not female versus male, but rather mothers versus the rest of the population. Nowhere in the Unruh Act is there any mention of requiring the treatment of mothers to be exactly the same as that of non-mothers. A viable gender discrimination case must be because of the group’s sex, not merely a resultant correlation.
The court distinguished cases which held that “Ladies Night” and other discounts to women violated the Unruh Act. Here, women as well as men paid the same price of admission. The Angels distributed gifts, rather than gave discounts. The court held that “If the intent is for the item to be a gift, rather than an attempt to circumvent the ban on gender based discounts, then such a gift is permissible.”
Topics: Cases, Unruh Act | No Comments »
Length of Escrow Supplied by the Court
December 22, 2008
Where a real estate purchase contract, or option to purchase, does not specify length of escrow, the court can supply it by implication, as the California Supreme Court held today in Patel v. Liebermensch.
Owners owned a condominium. The buyers told the owners they were interested in leasing the condominium with an option to buy. The owners then faxed to buyers the following proposal:
The buyers would rent the unit for $1,400 per month, from August 7, 2003 to August 6, 2004.
Concurrent with the lease, purchasers would have an option to buy the condominium. Until December 31, 2003, the purchase price would be $290,000. Thereafter, the purchase price would increase by three percent.
The buyers signed the lease and added an addendum providing for an option to renew until August 6, 2005. Owners initialed the addendum, and prepared a form rental agreement to which the option to buy was attached. The parties signed the rental agreement.
In July 2004, the buyers gave notice that they were exercising the option. They buyers told the owners that they wanted the transaction completed as soon as possible in order to take advantage of the then-current interest rates.
The owner responded with a purchase agreement which included an “as is” clause and provided for a ten percent deposit and 90-day escrow. The escrow period could be extended 30 days so the owner could exercise a 1031 exchange.
The buyers countered with their own purchase agreement which modified the “as is” clause to allow for buyer’s cancellation if not fully satisfied. The buyer’s agreement also reduced the deposit to $5,000 if the escrow took more than 30 days, to protect against a change in interest rates.
The owners rejected the buyers’ proposal. The buyers then sued the owners for specific performance, and prevailed. The judgment required performance of the purchase transaction within 60 days.
Topics: Cases, Real Property, Contracts | No Comments »
On the road
December 21, 2008
BACK FROM A windy, parka-cold afternoon on Point Lobos, I posted a postcard here. Click on the picture for a larger image.
Don’t be confused by the name. Yes, it’s me, as (the more phonetic) John Evans.
Topics: Life | No Comments »