By Ritzel Starleigh Ngo
Dear Solo and Small Firm Section Members:
The Spring is almost here! We hope that the 1st Quarter of 2018 is going well for your law firm. Our section has identified several subcommittees of which I want you to be aware, so that you can join and participate and share your ideas.Thank you to our members who have reached out to me and other members of our executive committee with ideas to provide our section with feedback in how we can support your needs as a small law firm and/or a solo practice.
The subcommittees of the Solo and Small Firm section, which includes a brief description and e-mail contact person are as follows:
Membership, Marketing and Social Media: focus on improving member benefits, and marketing our section and practice, and social media efforts for our section. Steven Mayer, e-mail: email@example.com
Publications committee: focus on the Practitioner magazine, reviewing and publishing substantive and procedural articles.Subcommitee Chair:Omar Anorga, e-mail: firstname.lastname@example.org
Bylaws subcommittee: focus on the California Lawyers Association and drafting our section bylaws which correspond with the new association;Subcommittee Chair:Trina Chatterjee, e-mail: email@example.com
Outreach committee: focus on serving the needs of the underserved attorney/legal population in our section, which includes lesser populated areas.Subcommittee Chair: Nancy Goldstein, e-mail: firstname.lastname@example.org
Appointments subcommittee: focus on appointing new members to the section's executive committee.Subcommitee Chair: Susan Share: email@example.com
Attorney of the Year Award: focus on identifiying multiple attorney candidates for the attorney of the year award which is recognized and celebrated that the Sections Convention annually in September.Subcommittee Chair: Robert Klein, e-mail: Robert@rkleinlaw.com
Programs subcommittee: focus on identifying educational MCLE programs (live, webinars, webcasts, Section Convention).Education Chair: Sabrina Green: firstname.lastname@example.org
We look forward to your participation.
Please mark your calendars for our live MCLE Spring Conference which will be held at Loyola Law School in Los Angeles on April 20, 2018.We have three MCLE presentations, which will focus on the 2018 Tax Reform laws, marketing for solo and small law firms, and a program on client-centered law practice.
Please keep a look out for our live program e-blasts and upcoming e-newsletters for details which will include executive committee member visits to your local bar association, webinars, and committee updates.
We are looking to bringing the Winter to a close and welcoming the Spring.
Ritzel Starleigh Ngo, Chair
Earn 4.0 Hours MCLE and Legal Specialization Credit.
Friday, April 13, 2018
Loyola Law School
Hall of the 80’s
919 Albany Street
Los Angeles, CA 90015
Schedule | Essential Info
Printable Brochure | Mail/Fax Registration Form
Click here for more information!
Wednesday, April 18, 2018 12:00 P.M. - 1:00 P.M.
This program offers 1 hour participatory MCLE credit. You must register in advance to participate.
The webinar will focus on issues created by representing clients involved in California's newly regulated cannabis industry. Topics will include new laws and regulations, State and local licensing, intellectual property and impact of Federal policy on the industry.
Speakers: Robert Finkle, Kimberly Simms, Movses Shakarian, Luke Zimmerman
Wednesday, April 04, 2018, 12 noon - 1:00 pm
A helpful discussion on what bases to touch so that you don’t compromise your client’s ability to grow.
Speaker: Ben Root
Request for Nominations - Due May 15, 2018
The Solo and Small Firm Section of the California Lawyers Association is pleased to request nominations for the Solo and Small Firm Attorney of the Year Award. The award will be presented at the California Lawyers Association Annual Meeting held on September 14, 2018 in San Diego.
The Solo and Small Firm Section of the California Lawyers Association presents its Attorney of the Year Award to honor a solo or small firm attorney, who has demonstrated exemplary leadership and dedication to the legal profession, contributed to the betterment of the practice of law, and has devoted significant service to the public and legal community.
Click Here for the Application Form
The Solo and Small Firm Section has two publications: The Practitioner, our quarterly magazine; and the ePractioner, our monthly electronic newsletter. We are always looking for content. Because this section is not in a particular substantive area, we are able to publish all kinds of subject matter. And we have great discretion as to length - so a great idea of one paragraph can be considered!
If you like to write, please send ideas and articles to the editors:
Marilyn A. Monahan, email@example.com and Nancy B Goldstein, firstname.lastname@example.org
By Robert M. Klein, Esq.
A law practice devoted to helping personal injury victims.
How often do you send a document to a client, by mail or fax, and then wait for the signed document to be returned? Maybe you sent out a retainer agreement which the prospective client wants changed and the signature process starts again. Or, the prospect claims he/she signed but you never received the original signature page. Or maybe you sent a verification form for discovery and the client claims they signed, but you never received the signed original. What about the times the verification is returned via facsimile and the page is crooked or sideways or the lines are blurred? There is a new and better way to obtain signatures.
The new way is to use an e-signature program. Many companies offer this service, including, but not limited to, DocuSign, Adobe eSign services, eSignLive, Rightsignature, SignRequest. These programs allow you to send a client or prospect a document through a web portal, the recipient can review and electronically sign. Once signed, the e-signature program returns the signed document electronically and it can be downloaded. I have been using one of these programs for the past year and it has made my office much more efficient.
There are features which you should be looking for, which include: Is the program web-based? What is the monthly cost? Is there a limit on the number of documents you can send for signature? Is there a free trial? Does the program allow a user to sign on an iPhone/iPad, or an android device? Does the program offer phone support, or on line-support or a knowledge base? Is there data encryption or location tracking? Are there integrations with other cloud services such as Dropbox, Box, Google Drive or One Drive?
Here is another advantage of e-signature program. Many courts in California now require e-filing. When e-filing applies, an original signature is unnecessary. If there is a court filing that requires a declaration from an expert, a client, or whomever, an e-signature program can have the signed document returned promptly (and without the unattractive fax headers.) Plus, the program I use has authenticity features (a signature certificate) showing who created the document and who signed it, the IP address from where the document started and where the document was signed, and other aspects of identifying information.
This would not be a legal article if I did not mention the ESIGN Act. This law passed in 2000 recognizing (or stated in legalese: granting recognition to) electronic signatures. Both the United States Electronic Signatures in Global and National Commerce (ESIGN) Act, and the Uniform Electronic Transactions Act (UETA), have four major requirements for an electronic signature to be recognized as valid under U.S. law. There is a difference between an electronic signature and a digital signature. Digital signatures are more cumbersome as they require a key that link the signer and the document. The technical and legal aspects of this difference are beyond the scope of this article but if you would like more information, contact me.
There is one drawback I have encountered in relying on an e-signature program. It is not with the program itself. Like any technology, there are people who will not have the skill to use such a program or won’t have access to a cell phone or computer. So the old fashion way will still be necessary.
I highly recommend to everyone who practices in an area of law that requires a signature on a document to, at a minimum, make use of the free trial for an e-signature program. The savings for me in time and postage provided from using an e-signature program is worth the approximately $15/month fee. If you have questions, please reach out and contact me.
Posted on February 23, 2018 by Julie Brook, Esq.
Reprinted by Permission
You find defects in the allegations in the complaint and plan to file a demurrer. First, consider whether it’s a good tactical move, or if an alternative approach would be better. If you decide to go for it, follow the four steps outlined below to avoid common pitfalls for demurrers.
1. Move fast. The timelines for filing a demurrer is tight. Absent an extension of time, a defendant must file a demurrer to a complaint within 30 days after service of the complaint. CCP §430.40(a). But before a defendant can file a demurrer, the parties must meet and confer to determine whether they can resolve the objections to the complaint at least five days before the date the responsive pleading is due. CCP §430.41(a). If the opposing party fails to meet and confer in good faith (e.g., by failing to respond to the meet and confer request), an automatic 30-day extension for filing a responsive pleading can be obtained by filing and serving a declaration explaining that a good faith meet and confer attempt was made and why it didn’t work. But this declaration must be filed by the date the demurrer is due. CCP §430.41(a)(2).
2. State all grounds separately. A party who files a demurrer must file and serve a memorandum outlining each ground stated in the demurrer. Cal Rules of Ct 3.1112(a), 3.1113(a). Each ground for objecting to a complaint must be specified distinctly; otherwise, the demurrer may be disregarded. CCP §430.60. Put each ground in a separate paragraph and state whether it applies to the entire complaint or only to specified causes of action or defenses. Cal Rules of Ct 3.1320(a).
3. Serve and file a notice of hearing. If you’re the party filing the demurrer, don’t forget to serve and file a notice of hearing in accordance with CCP §1005 and, if service is by electronic means, in accordance with the requirements of CCP §1010.6(a)(4) and Cal Rules of Ct 2.251(h)(2). Cal Rules of Ct 3.1320©.
4. Declare that you met and conferred (or at least tried to).Along with the demurrer, supporting memorandum, and notice of hearing, a party demurring to a complaint must file and serve a declaration on the efforts made to meet and confer. The declaration must state either (1) how the parties met and conferred and that an agreement resolving the objections was not reached; or (2) that the party who filed the complaint didn’t respond to the meet and confer request or otherwise failed to meet and confer in good faith. CCP §430.41(a)(3).
For detailed guidance on all aspects of demurrers, including sample demurrers, notices of hearing, and a handy checklist to take you through the procedure for a demurrer to a complaint, turn to CEB’s California Civil Procedure Before Trial, chap 23. And find out how, when, and why to attack pleadings in CEB’s program Attacking the Pleadings, available On Demand.
Question: Is Archie Bunker back?
Answer: Perhaps. In the 1972 sitcom, All in the Family, Archie Bunker suggests that the way to prevent plane highjackings is to provide the passengers with guns when they board the plane. This is en par with the suggestion, in February (of this year) that teachers should be armed to prevent campus shootings.
“Question of the Month” is a new addition to the ePractitioner. We encourage members to forward their questions—about their practice or about the law—to the section and we will endeavor to provide answers. Submit questions to email@example.com
Selected Case Reviews [1/18/18-2/23/18]
Steven L. Krongold
California Supreme Court
Appellate Jurisdiction—One Final Judgment Rule
Kurwa v. Kislinger (2017) 4 Cal. 5th 109, modified by 2018 Cal. LEXIS 727 (1/31/18).
In a long-running and bitter partnership dispute between two doctors, the Supreme Court has, for the second time, published an opinion. The doctors formed a joint venture in 1992 to service HMO patients under a capitation agreement. The doctors then incorporated their venture. In 2004, Kurwa sued Kislinger for trying to steal the business. They sued each other for defamation as well. Since the doctors had formed a corporation to carry on the joint venture business, the trial court ruled, in 2010, that they did not owe each other a fiduciary duty as partners or joint venturers, and thus, Kurwa’s cause of action for breach of fiduciary duty failed as a matter of law. This ruling was affirmed on appeal. Kurwa v. Kislinger (2012) 204 Cal. App. 4th 21, distinguishing Persson v. Smart Inventions, Inc. (2005) 125 Cal. App. 4th 1141, 1157 (“We are persuaded that, in the usual case and in this case, a partnership does not continue to exist after the formation of a corporation.”)
In order to obtain appellate review of this ruling, the parties entered into a stipulation in which they agreed to dismiss their respective defamation claims without prejudice and waive the applicable statutes of limitations. If the judgment was reversed and remanded for trial, either party could reinstitute their respective defamation claims. In Kurwa v. Kislinger (2013) 57 Cal.4th 1097, the Supreme Court reversed the Court of Appeal, ruling the stipulation rendered the judgment not appealable. The parties cannot hold “some causes of action in abeyance for possible future litigation.” Id. at 1100. In other words, the parties cannot circumvent the “one final judgment” rule to seek, in effect, interlocutory review of a trial court’s partial order of dismissal. Since the appeal was premature, the Court never reviewed the merits.
On remand, Kurwa moved to rescind the stipulation and asked the court to reconsider its 2010 adverse ruling. The trial court declined to do so on the ground it lacked jurisdiction to modify the judgment. Kurwa then moved to amend the complaint to add a cause of action for rescission of the stipulation due to mistake of law. The court denied that motion as well. The Court of Appeal denied review. Justice Mosk dissented, noting that Kurwa was in “a seemingly Kafkaesque situation [in which he] is unable to correct a miscarriage of justice.” Undeterred, in June 2015, Kurwa filed a voluntarily dismissal with prejudice of his defamation cause of action, and then filed a notice of appeal from the 2010 judgment. The Court of Appeal dismissed the appeal, holding that it was untimely and, in any event, the judgment was not final because Kislinger had refused to dismiss his cross-complaint for defamation.
The Supreme Court granted review, and reversed. “It stands to reason that if the trial court has not entered a judgment that is final and appealable, it retains the power to render one.” Thus, the court “has the authority to vacate the defective 2010 judgment and the parties’ underlying stipulation. Once the parties and the court have disposed of the remaining defamation counts—either by dismissing them with prejudice (as Kurwa already has for the cause of action in his complaint) or pursuing them to judgment—the trial court can, and should, issue a final judgment from which Kurwa can appeal.”
Perhaps at some point we will see a ruling on the merits of the 2010 decision dismissing the breach of fiduciary duty claims, or perhaps the case will settle.
California Courts of Appeal
Malicious Prosecution – Favorable Termination
Lane v. Bell, 2018 Cal. App. LEXIS 79 (4th Dist., 1/21/2018)
“Lack of probable cause” and “favorable termination” are distinct requirements in a malicious prosecution action. So what happens when the plaintiff in the underlying action brings multiple claims and loses all but one? Can the defendant bring a malicious prosecution action by showing that some of the failed claims were malicious and lacked probable cause, but without showing a “favorable termination” of the entire underlying action? The answer is apparently no.
In Crowley v. Katleman (1994) 8 Cal.4th 666, 686, the California Supreme Court noted, in dicta, that even though a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause, this “does not alter the rule there must first be a favorable termination of the entire action.” Since Crowley, two cases concluded that the entire action must terminate in the defendant’s favor in order to support a later claim for malicious prosecution: Dalany v. American Pacific Holding Corp. (1996) 42 Cal. App. 4th 822 and StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal. App. 4th 1392. Lane follows these cases.
Lane does note a split of authority: Paramount General Hospital Co. v. Jay (1989) 213 Cal.App.3d 360, 368–370; Tabaz v. Cal Fed Finance (1994) 27 Cal.App.4th 789. These cases rely on language in Albertson v. Raboff (1956) 46 Cal.2d 375. There, the underlying defendant, Albertson, prevailed on a quiet title action (and expunged a lis pendens), but lost on a claim for money damages. Plaintiff Raboff did not appeal. Albertson appealed only from that part of the judgment awarding money, which was affirmed. Albertson brought a malicious prosecution action against Raboff. Raboff contended the complaint was premature since it was filed while Albertson’s appeal was still pending. Albertson “appealed only from the part of the judgment that made an award of money to defendant. That part of the judgment was severable from the part that determined that defendant had no interest in or right to a lien upon plaintiff’s real property. Since no appeal was taken from the latter part of the judgment, it became final. Thus, the action was not premature. Without much discussion, the Court also held that since part of the action was final, it constitutes a favorable termination “of that separable part of the proceeding.” Id. at 382.
Attempts to distinguish Albertson on grounds it was a partial appeal that created a severable judgment were unconvincing. Lane simply rejected any severability exception: “Thus, if the defendant in the underlying action prevails on all of the plaintiff’s claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.” While this holding protects attorneys from malicious prosecution if one claim is successful, the Supreme Court may need to resolve the split.
Douglass v. Serenivision, Inc., 2018 Cal. App. LEXIS 107 (2nd Dist., 2/8/18)
Vivera sold diet pills and other products online. Vivera signed an internet advertising agreement (Insertion Order) with Serenivision, dba Pinnacle Dream Media. The Insertion Order incorporated a Master Advertiser Agreement (Master Agreement) and provided a weblink to access the Master Agreement; a hard copy of the Master Agreement was not attached. The Master Agreement provided that “all disputes regarding this agreement [be] resolved by binding arbitration,” that any “prevailing party in any Arbitration shall be entitled to an award of attorney fees and costs for such arbitration,” and “[a]ll payments are personally guaranteed by the individual executing the [Insertion Order] or secured by the assets of [Pinnacle Dream Media's customer].” The Insertion Order was “Accepted” by Vivera and bears the printed name and signature of plaintiff Clayton Douglass (Douglass). Vivera had an unpaid balance with Pinnacle Dream Media totaling $816,530. Serenivision initated arbitration, and secured an award holding Douglass personally liable for the principal debt, plus penalties, interest, attorney’s fees, and costs which came to a total of $1,755,050.34.
The first issue was whether Douglass had consented to allow the arbitrator to decide what claims were arbitrable, i.e., subject to arbitration. On the one hand, such consent will not be inferred solely from a party’s conduct of appearing in the arbitral forum to object to the arbitrator’s exercise of jurisdiction, at least if the party makes that objection prior to participating in the arbitration. On the other hand, such consent will be inferred from a party’s conduct of litigating an issue up to the point of submitting it for decision in the arbitral forum, at least if the party does so without objection.
Here, Douglass willingly and without objection participated in the arbitration proceedings for over 10 months; he availed himself of the arbitrator’s authority when he asked him to issue an order requiring petitioner to post bond; and he purported to rescind his voluntarily participation a few weeks before the evidentiary hearing but only after the arbitrator issued a ruling denying the bond request. What is more, Douglass’s participation in the arbitration was no accident. As he told both the arbitrator and counsel, he was making a conscious and tactical decision to participate in the arbitration forum because it was cheaper. He was seeking to avail himself of the attorney's fees award only available in the arbitral forum; indeed, he was seeking a bond specifically in anticipation of such an award.
Voluntarily participation in an arbitration where one of the primary issues is whether the dispute was arbitrable, without any objection or reservation and done for tactical reasons, constitutes clear and unmistakable evidence of Douglass’s consent to have the arbitrator decide that issue. Allowing Douglass to back out of the arbitral forum on the proverbial eve of the evidentiary hearing runs afoul of the principle that “[a] claimant may not voluntarily submit his claim to arbitration, await the outcome, and if the decision is unfavorable, challenge the authority of the arbitrator to act.” (Univ. of San Francisco Faculty Assn. v. Univ. of San Francisco (1983) 142 Cal.App.3d 942, 954.)
The tests for waiver by conduct vary in their stringency depending on the context. Douglass’s conduct constitutes a waiver under this appropriate test because “he substantially invoked the machinery of the arbitral forum in asking the arbitrator for relief, delayed until the eve of the evidentiary hearing his proclamation that his voluntary participation was conditional, and purposefully availed himself of the cheaper arbitral forum until the arbitrator made a ruling he did not like. Were we nevertheless to conclude that Douglass's conduct did not constitute a waiver of his right to a judicial forum, we would make the test for waiving a judicial forum more onerous than the test for waiving an arbitral forum, and would consequently upset the carefully crafted, policy-based hierarchy for evaluating when one's conduct waives the right to litigate in a particular forum." (2018 Cal. App. LEXIS 107, *20-21.)
The second issue was whether the arbitrator exceeded his powers in determining that the arbitration clause in the Master Agreement reaches this collection dispute. The court held the arbitration provision did cover the dispute and was properly incorporated since (1) the reference was clear and unequivocal, (2) the reference was called to the attention of the other party and he consented thereto, and (3) the terms of the incorporated document were known or easily available to the contracting parties. (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 713.)
Note: All Superior Courts updated their local rules for 2018; go to the court’s website to ascertain what changes have been made in your county courts. Here are the most recent changes we were able to locate:
Calaveras County: E-filing is live 24/7! Same day filing deadline is 4:00 pm. Family Law Mandatory Settlement Conferences will be heard Wednesday at 8 am in Courtroom 4, effective April 1, 2018.
Contra Costa County: Proposed changes to Local Rules, effective July 1, 2018, are available for comment. To review the rule changes, go to: http://www.cc-courts.org/local-rules/local-rules.aspx.
Kern County: Effective April 2, 2018, mandatory e-filing is required for all represented parties for all limited civil cases, including unlawful detainer cases.
Mendocino County: Effective April 9, 2018, unclaimed monies held by the Mendocino Superior Court in its Trust Accounts will be transferred into local or state funds. Submit claims for unclaimed money by March 15, 2018.
Merced County: Fax filing services will be discontinued effective March 15, 2018. E-filing will replace it.
Nevada County: Effective March 5, 2018, all telephonic appearances in the Court will be made using a new system called “Vcourt.” For information about the new system, go to http://nccourt.net/onlinesvcs/vcourt.shtml.
Ventura County: Effective March 15, 2018, fax filing service will be discontinued and replaced by an e-filing service called e-Delivery. For more information and opportunities to learn more about this, go to: http://www.ventura.courts.ca.gov/pn/pn_2018_0222eDelivery_Notice_1.pdf.
State Bar issues fraud alert for immigrants seeking legal help following immigration raids
Wednesday, February 28, 2018
The State Bar of California's Office of Chief Trial Counsel issued the following fraud alert today to warn the public to watch out for and report potential legal fraud in response to the recent reports of immigration raids in the northern part of the state.
"Everyone in California deserves access to legal services. The recent federal immigration actions in California, uncertainty for Deferred Action for Childhood Arrivals (DACA) recipients, and the ongoing concerns faced by our immigrant communities increases the potential that unscrupulous people will seek to take advantage of those in the most dire need of legal help,” said Steven Moawad, Chief Trial Counsel of the State Bar of California. “We want to be sure that all Californians know how to access the legal services they need and how to avoid and report fraud."
The State Bar advises Californians to avoid fraud from attorneys, notarios or other unlicensed legal providers by taking some of the following steps:
If someone hires an immigration consultant rather than an attorney, it's important to understand what an immigration consultant can and cannot do. Immigration consultants can help consumers fill out paperwork and translate and submit forms to government agencies, but they cannot give legal advice and cannot represent anyone in Immigration Court. Attorneys or accredited representatives must be registered with the Executive Office of Immigration Review before appearing in Immigration Court.) Immigration lawyers can be licensed in other states even if they practice immigration law in California. Still, any complaints about such attorneys will be forwarded to the correct state authorities.
Self study opportunities are available through CLA. The offerings through Solo Section are found at: https://cla.inreachce.com/SearchResults?searchType=1&category=86395ab7-f0cb-4e48-a93b-d40368371071
Solo & Small Firm Section Members Get 6 FREE MCLE SPECIALTY Credits
When you pay your dues, don’t forget to renew your membership in the Solo and Small Firm Section. Section members are entitled to 6 free hours of MCLE specialty credits—this benefit alone pays for the cost of your membership!
The general rules for compliance follow:
Currently, the free programs may be found on the State Bar website under the “members only” page for the Solo and Small Firm Section.
A good source for low-cost webinars and self-study articles on an array of subjects is, “Continuing Legal Education (CLE) at Your Fingertips,” a catalog of MCLE options available on the CLA website (http://cla.legal/CLE-Events). Live programs, online CLE and webcasts, and self-study articles are all posted here, for your convenience.
The safety of the people shall be the highest law. Marcus Tullius Cicero
We don't let them have ideas. Why would we let them have guns? Joseph Stalin
A vote is like a rifle; its usefulness depends upon the character of the user. Theodore Roosevelt
Solo and Small Firm Section
California Lawyers Association
180 Howard Street, Suite 410
San Francisco, CA 94105-1639