Civil Procedure

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lawyer-cartoonA legal malpractice action time-barred where filed more than one year after attorney’s act of negligence but less than one year after plaintiff negotiated a settlement with third parties that was reduced in value due to the attorney’s negligence. Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031.
Continue Reading Legal Malpractice Statute of Limitations not extended even if damages caused by lawyer resulted in a smaller settlement after one year.

arbitration clause mouse trapIn Carlson v. Home Team Pest Defense, Inc. (2015) 239 Cal. App.4th 619 [First Dist., Div. Four, relying on pre-Sanchez authorities, but citing Sanchez in a footnote, the court affirms the trial courts denial of employer’s motion to compel arbitration, concluding that the arbitration agreement was unconscionable because it was presented to the employee…

DontSignArbitrationAgreementPlaintiff car buyer filed a putative class action case alleging a defect.  The purchase agreement required arbitration, waived class actions, allowed appeals from arbitration awards, consumer pays costs of arbitral appeal, excluded self help remedies to benefit car dealer like repossession from arbitration.  The trial court said the arbitration clause was unconscionable as did the Court of Appeal.  However, the California Supreme Court reversed!
Continue Reading Proof of Unconscionability of Mandatory Arbitration Agreements is high (Sanchez v. Valencia Holding (2015) 61CA4th 899

irrelevant-manIn Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 CA4th 432 defendant was defaulted and its long time counsel simply said the failure to respond was his fault but did NOT state the reason for not filing a timely response.  The trial court set aside the default and plaintiff appealed.  The Second Dist. (Div. Two) affirmed and said mandatory relief means mandatory relief and only needs a declaration from the attorney stating that the default was caused by his  mistake, inadvertence, surprise, or neglect.  The Court held the reasons for the default do NOT matter, even if the reason is inexcusable neglect
Continue Reading CCP §473(b) Attorney Affidavit of Fault does NOT require the reason for the mistake to be disclosed. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 CA4th 432)

know the rules on blackboard
know the rules on blackboard

C.C.P. § 430.41 added to require demurring party to attempt to meet and confer prior to filing demurrer and file meet and confer declaration with demurrer; limits on subsequent demurrers; limits amendments to pleadings after demurrer.  This statute also makes other changes, but some useful parts of this new law are:Continue Reading Demurrers Require “meet and confer” before filing CCP §430.41

Confusion-300x300In law, every word has a meaning and often one statute contradicts another.  Today with more electronic service occurring, many statutes need to be updated to reflect that form of service of notice.  When that occurs, look at the structure of the statute and if it has a specific focus, (e.g. look at the object of the sentence) .  For example, rules calculating dates can be either upon service of a document OR mailing of a document.  “Mailing” is a specific fact, while “service” is more general.  While the basic/common rule is CCP 1013 referring to “after service”, other rules for specific documents are after “mailing”.  Think,  the postmarked date may differ from service.  An example is the deadline for service of a memo of costs after judgment is after the clerk/party mails notice of entry of judgment (CRC Rule 3.1700) So depositing into a post box at 6:00 p.m. Friday but it is picked up and postmarked the next Monday is mailing on Monday.  So look beyond the common “extension statute”  CCP § 1013 (mailing) and CCP §1010.6 (fax/overnight delivery) for others such as the following:
Continue Reading Statutes referring to Mailing use a different date For Calculation of Responses