International law systems, justice, human rights and global business education concept with world map on a school globe and a gavel on a desk on blue background.

The new CCP §1297.185 essentially over rules the 1998 California Supreme Court case known as Birbower holding that lawyers from foreign nations could not appear in international arbitration matters in California.  California Governor Jerry Brown signed into law SB 766 effective January 1, 2019.  Arbitration and mediation are huge businesses for lawyers and this will create more opportunities for California based attorney’s and ADR companies 😊

Code of Civil Procedure § 1297.185, et seq. is very broad, essentially the requirements are:

  1. The non-California admitted attorney must be admitted in good standing to all jurisdictions in which he/she is a lawyer. must be based outside of California.
  2. The subject matter is supposed to be “internationally related” but Code of Civil Procedure § 1297.186(a) is broad enough to cover almost any mediation or arbitration proceeding.

Phone company records are difficult to obtain.  I say difficult, not impossible.  Even with a validly issued civil subpoena, the phone company will not comply without a notarized written consent from the consumer who “owns” the phone number.  You need a signed and notarized form such as this: Sprint Consent to Release Information

Pub. Util. Code, § 2891 provides:

(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber’s consent, in writing, any of the following information:

Code Civ. Proc., § 1985.3

(f) A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.

In an unpublished opinion, Milder v. Holley, B267974 (2/5 1/31/17) the Court of Appeal on a gateway issue, found that a judge decides if there was fraud in the inducement to enter into an arbitration agreement in California.  ( Citing Johnson v. Siegel (2000) 84 Cal.App.4th 1087, 1095.)  This is separate from fraudulent inducement to enter into the contract which happens to contain an arbitration clause.  The latter is to be decided by the arbitrator. (Citing Ericksen, Arbuthnot, McCarthy, Kearney & Walsh Inc. v. 100 Oak Street, (1983) 35 Cal.3d 312, 323.)  Read more … Continue Reading Enforcement of an Arbitration Clause is for the Court not Arbitrator to Determine

In Pulte Home Corporation v. American Safety Indemnity Co. (2017) 14 CA5th 1086 a homeowner sued for latent construction defects.  The General Contractor sought a defense under its sub’s general liability policy as an additional insured.  The insurer denied coverage because the subcontractor’s work was completed work as opposed to “ongoing work”.  The GC sued for bad faith and won.  The Appellate Court held coverage is “when the property physically damaged”,  not when the homeowner was “financially damaged by the purchase of the home”.  In other words, if it is possible that the property was damaged during construction, then there is coverage.   (This is also similar to McMillin Management Services v. Financial Pacific Ins. (2017) 17 Cal.App.5th 187

In Burd v. Barkley Court Reporters (2017) 17 Cal.App.5th 1037, the court stated the fees allowed for an official transcript in Government Code sections 69950 and 69954 are the max a private reporter can charge of a proceeding in front of a judge.  I love this ruling  because I use private reporters for almost all of my hearings!

Arave v. Merrill Lynch (2018) 19 Cal.App.5th 525 reinforces that in labor law employees have nothing to lose from suing.  Plaintiff sued his employer under FEHA and lost.  The defendant employer previously served a CCP 998 offer to settle of $100,000 which was rejected.  The employee lost his case and the trial court awarded $83,000 in costs to the employer.  This was reversed holding only the “frivolous claim”  statute Labor Code 218.5(a) could shift costs/fees to a losing employee.

Note: there is now a split in authority on this 998 issue so wait for the Supreme Court to resolve this.

In Bustos v. Global P.E.T. (2018) 19 CA5 th 558 an employee who proved discrimination as a motivating factor due to his disability (carpal tunnel syndrome vs. employer who said it was an economic lay off) lost an award of attorneys fees and costs under Harris v. City of Santa Monica (2013) 56 CA4th 203 because he did not win any monetary damages even if discrimination was a motivating factor because Harris only says the court “may” award fees, not that it is mandatory.

Also, under contract law, courts have discretion when neither side achieved a complete victory.  (Marina Pacifica HOA v. Southern Californian Financial (2018) 20 CA5th 191(

I guess Congress persons do not pay alimony.  Part of the Tax Cuts and Jobs Act is that Internal Revenue Code §71 is now eliminated so any divorce alimony agreements made after December 31, 2018 will no longer result on a tax deduction for alimony paid.  The key is the divorce settlement or decree must be reduced to a judgment by December 31, 2018 to be deductible.  The spousal support software programs now will be re-programmed so the Alice in Wonderland meets quantum physics etc. showing that this reference in the famous case anti alimony software case of In re Marriage of Schulze (1997) 60 Cal.App. 4th 519 is still relevant!

Multiple contracts invoke Civil Code §8186 (former §3117) which can  be fatal to mechanic’s lien claims. Section 8186 provides when projects are built pursuant to more than one “direct” contract, with each contract covering a particular portion of the work, the owner may record separate notices of completion for each particular portion of the work performed under each contract, rather than waiting for completion of the project as a whole.  This affects the time to record a mechanics lien.  (See also Gunther v. McCormick (1922) 60 Cal.App. 350) For example …. Continue Reading Mechanic’s Lien Problems with Multiple Contracts (Civil Code §8186)