Trial courts have great discretion as to determining what is a reasonable attorney fee.  Some judges look at what is a “market rate” and for high end clients they will pay $1,200 per hour.  In an unpublished opinion, Los Angeles Superior Court Judge William Fahey awarded attorney’s fees in favor of Latham Watkins, Gibson Dunn and Munger Tolles in excess of $1,200 per hour.

Judge Fahey in a case involving an professional and former Olympic beach volleyball player, Alan Jay Weil of Kendall Brill & Kelly, was awarded $850 which was his discounted rate in 2018 , discounted from his standard rate of $950; $360-$395 for the associate, discounted from $490; and $290 for the paralegals, discounted from $300.

The plaintiffs’ attorneys in a class action were denied attorney’s fees because some of the attorneys failed to disclose their lack of professional liability insurance to the client at the time the client retained the attorney.  The Court of Appeal concluded the agreement was unenforceable because of failure to comply with former rule 3-410 and reversed the fee award with directions to redetermine the division of fees. (Hance v. Super Store Industries (Cal. App. 5th Dist., Jan. 23, 2020) 2020 WL 373070.)  The new rule after 2018 is Rule 1.4.2.  Read the case:


In Berkeley Cement, Inc. v. Regents of the Univ. of California (2019) 30 Cal.App.5th 1153, the court confirmed that a trial court may award mediation fees as costs, whether the mediation is court ordered or privately agreed to. In affirming the award of mediation fees as costs, Berkeley Cement noted that although mediation costs are not expressly allowable in the Code of Civil Procedure, such costs “fall within the category of costs that may be awarded in the trial court’s discretion.” (Id. at p. 1140.)

Waiver of the right to a jury trial cannot be imposed as a sanction.  In a Los Angeles unlawful detainer action, the pro per tenant (who was also pro per on appeal) appeared on the trial date without complying with a Los Angeles County Superior Court Civil Division unlawful detainer standing order. The court found “defendant had waived jury by not preparing for a jury trial,” and following a court trial, judgment was entered against her and possession of the premises was awarded to plaintiff. Because the court exceeded its authority in denying defendant’s right to be tried by a jury, the judgment was reversed.

The tenant/defendant had requested the Court to continue the matter to prepare jury instructions, etc.  But the Court found the defendant not credible legal reason why she was not prepared for trial.

Code of Civil Procedure section 631, subdivision (f), sets forth the exclusive grounds for a jury waiver, and failure to prepare for trial is not listed. Showing up for trial unprepared may subject a party to monetary sanctions, but it does not constitute a waiver of the right to jury, and a court has no power under these circumstances to refuse to conduct a jury trial.

The Appellate Court pointed out that the Standing Order states, “Failure to comply with any provision of this Standing Order without substantial justification may result in monetary sanctions.” (See Code Civ. Proc., § 575.2 [authorizing imposition of sanctions for failure to comply with trial court rules when the rules specify sanctions may be imposed]; see also Code Civ. Proc., § 177.5 [“A judicial officer shall have the power to impose reasonable money sanctions … for any violation of a lawful court order by a person, done without good cause or substantial justification”].) Notably, the Standing Order does not provide failing to prepare for trial per its requirements can result in a jury waiver.3
“But, more to the point, even if the Standing Order had provided that failing to comply with its provisions could result in a jury waiver, it would be unenforceable. “The fundamental flaw here is that the court imposed a remedy for the violation of its order that was not authorized by law.”

Guo Zhang Chen v. Lin (Cal. App. Dep’t Super. Ct., Nov. 14, 2019, No. BV 033055) 2019 WL 6341283


I had a case where the issue was if the work had been previously published invalidating the US copyright.  This case will be very useful for showing no publication occurred if the work was only posted on a foreign website.  In Moberg v 33T LLC (D Del 2009) 666 F Supp 2d 415, the district court held that a work posted on a foreign website was not “published” in the United States for purposes of 17 USC §411 and therefore did not trigger the registration requirement.

While the law still allows the U.S. CBP (Customs, Border Patrol) to conduct a limited search of a cell phone or laptop at the border without any suspicion whatsoever based upon  the border search exception which is designed for customs inspections, the court re-visited United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) and made it clear this exception is not for general law enforcement.  It is now clear they cannot force you to unlock your cell phone or laptop so they can look around, or take it and do a forensic search without respecting your 4th Amendment protections, e.g they need an objective suspicion there is evidence of a crime inside your phone or that you committed a crime (in the US) with some evidence of that crime inside your phone or laptop.  I think that means they can only force you to give them your phone, but not force you to unlock it.
The 9th Circuit (Calif.) Court made it clear that cell phones cannot be searched at the border under the border exception unless the cell phone itself is suspected to contain contraband, as opposed to it may lead to discovery of evidence of or to help convict of a crime.
This was a drug smuggling case, but the underlying law is from a child porn case.
Unfortunately the larger problem remains, the border officers can still threaten and make people uncomfortable.  But If asked for my phone, I’d ask what reasonable suspicion do they have that contraband is inside my phone and tell them read the Cano case!

It pisses me off when companies want charge 3% or more to pay them by credit card.  If you don’t want to take credit cards fine, but don’t profit from it!  Elavon through Costco only charges 1.99% + 25 ¢ (for phone transactions) so don’t lie and try to make profit from a credit card transaction.

California and about 10 other states were trying to prohibit these surcharges

But now, starting with the US Supreme Court, surcharges will probably be allowed.  (See Expressions Hair Design

Technically, Civil Code Section 1748.1(a) prohibits retailers from imposing a surcharge on customers who pay with a credit card, but allows them to offer discounts for cash or check.

There is a work around for merchants, under the first amendment and how this surcharge is advertised.  See 9th Circuit Opinion:




In White v. Square, Inc. S249248 (August 12, 2019), the California Supreme  Court held that an online business violated the Unruh Act by discriminating  based upon  occupation (or other protected categories of people) and the discriminated person has standing to sue even if the person did not enter into a contract for the services because he/she was in an excluded category.

A bankruptcy lawyer sued Square, the payment processor run by the Twitter CEO, challenging the app’s terms of use—despite never signing up. The California Supreme Court ruled the TOS violated the State Unruh Civil Rights Act by discriminating against him due to his occupation as a bankruptcy lawyer.  This ruling may have far ranging implications to many other businesses that limit who can or cannot enter into an agreement to use their services.  White v. Square 100% reversed the Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414 about an online matchmaking service.

For whatever reason, Square’s Prohibited Goods and Services policies include bankruptcy attorneys or collection agencies and many other types of occupations, services and “prohibited” items.  In California where Square is headquartered, the Unruh Civil Rights Act provides broad protections against discrimination including based on a person’s occupation. The issue before the California Supreme Court was does a person need to have entered into an agreement with Square by agreeing to the terms of service in order to have experienced said discrimination barring his “full and equal access” to the service.  The Court said it was not necessary to have entered into an agreement then to be discriminated against because the bankruptcy lawyer was excluded from entering into the agreement by Square’s exclusion of his occupation per its terms of use.

“In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services,” The court’s unanimous opinion held: “We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store.”

This ruling may stir up a hornet’s nest of litigation.  For example, Square also prohibits sale of occult materials, adult entertainment oriented products or services and escort services.  PayPal bars the sale of “sexually oriented digital goods”; both forbid drug paraphernalia sales.  Every bank refuses to process credit cards for marijuana dispensaries or persons engaged in sex work.  If the occupation is legal, e.g. a state licensed cannabis dispensary or legal brothel in Nevada, that seems to be a form of occupation based discrimination.

Persons with physical handicaps also may have a cause of action as they are effectively excluded from using the services on the website.  Blind community members who rely on screen-reader software cannot avail themselves of websites, apps, self-service kiosks” that are not compatible with software as well as persons with dexterity issues who may be timed out of ‘CAPTCHA’ challenge response tests.

Another issue to be decided is if no agreement is needed to be discriminated against, is the person discriminated against required under the terms of service of the web site to arbitrate binding upon the discriminated person?  I don’t think so because there is no agreement!  It’s good to be a lawyer 😊

The prohibition against bankruptcy lawyers was still on the Square list of prohibited business activities as of August 14, 2019.



A stipulated judgment constituted an unenforceable penalty under Civil Code §1671(b) where the stipulated judgment for $2.8 million bore no reasonable relationship to the range of actual damages the parties could have anticipated from a breach of their agreement to settle a dispute for $2.1 million.  (This is established law under Ridgley v. Topa Thrift & Loan Assn. (1998) 17 Cal.4th 970, 977.

In Red & White Distribution v. Osteroid Enterprises, a stipulation provided for entry of judgment for $700,000 more than the settlement amount to be paid plus interest and attorneys’ fees. The Appellate Court held that the judgment with the additional $700,000 was an unenforceable penalty under section Civil Code 1671.  There were some unusual issues in this case including the debtor alleging it had paid most of the settlement amount in gold and had a receipt.

The appellate court stated it is publishing this case to remind parties how to properly provide for an incentive for prompt payment, e.g. a carrot not a stick!

The court citing with approval Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635 at 649, that “it is permissible under section 1671 for the parties to agree to a discount for timely payment of an admitted debt. (Jade Fashion, supra, 229 Cal.App.4th at p. 649.) Thus, based on Jade Fashion, if the parties stipulate that the debt is a certain number, they may agree that it may be discharged for that number minus some amount. They may also agree that in the event the debtor does not timely make the agreed payments, a stipulated judgment may be entered for the full amount.”

Red & White Distribution v. Osteroid Enterprises – filed Aug. 9, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 3888  (B291188)