The e-magazine of the Solo and Small Firm Section of the California Lawyers Association
By Ritzel Starleigh Ngo
Dear Solo and Small Firm Section Members:
In April, I was able to personally reach out to several local bar associations and their members by participating as a presenter in the section’s outreach program.Our section visited the Tahoe-Truckee County Bar Association and presented a live-program which was created by Immediate Past Chair, Megan Zavieh, Esq., "What to Do When the State Bar Calls."We had a good turn-out. We also visited the Tulare County Bar Association and presented, "No You Didn't!Recognizing the Difference between a Mistake and Malpractice?" which was created by the Outreach Chair, Nancy B. Goldstein, Esq.
I find the personal interaction especially rewarding and I hope more members will receive the benefit of this program.It was great to network and share our section initiatives with both bar associations.
If your organization is part of an underserved community, notably a smaller populated county, please contact me or any member of our Outreach committee to set up a time where a member of our section can present an MCLE to your local bar association's constituency and discuss your involvement in our section.
Our section has several subcommittees I want you to be aware of, so that you can join and participate and share your ideas. Thank you to our members who have already reached out to me with ideas.You provide our section with feedback on how we can support your needs as a small law firm or a solo practice and we can, in turn, design the appropriate programming.
The subcommittees of the Solo and Small Firm Section, including a brief description and e-mail contact person, are as follows:
We look forward to your participation.Please keep a look-out for our e-blasts and e-newsletters for details on future programs, including executive committee member visits to your local bar association, webinars, and committee updates.We are looking forward to an active Spring and Summer.
All the best for your practice,
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 Solo and Small Firm Reception at the California Lawyers Association Annual Meeting held on September 14, 2018 in San Diego.
The Solo and Small Firm Section 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.If you know an attorney that meets these criteria, please nominate them!
Click Here for the Application Form
By Robert M. Klein, Esq.
A law practice devoted to helping personal injury victims.
You are a busy practitioner and it is much faster to dictate or speak than it is to type, at least for most of us. By the way, I envy people who can type close to or over 100 words per minute. It’s quite a skill. For the rest of us, there are speech to text options.
Most of us have been using speech to text options without realizing it. For example, if you own an iPhone and you use Siri for sending emails, text messages, or simply to do a search, that is a speech to text product. How many people use Pages and iCloud and dictate rather than type? Google docs has a similar speech to text option.
Another option is the speech to text product made by Nuance which goes by the names Dragon Naturally Speaking or Dragon Professional. There are several additions available to use. I have been using Dragon Naturally for years. Although the accuracy has improved over the years, sometimes, the speech to text does not function as well as I would like. Be warned: you must edit for errors.
Recently, I have been contemplating a service providing an outsourced transcription service. There are many available and none which I have tried. For example, there is a site entitled www.temi.com which bills itself as a speech to text transcription service in five minutes. They charge $0.10 per minute for transcription. There is no contract, no minimum and no additional charges.
Another site I have looked at is https://www.spext.co. They offer many options, including a pay-as-you-go for $0.25 per minute, or a transcription plan which allows four hours per month for $40.00. This site will transcribe sound recordings, and they can transcribe other types of audio files. A site similar to Temi is called www.rev.com. Their transcription cost is $1.00 per minute and they transcribe audio or video. This product also transcribes interviews or meetings. And there is a translation service, translating written documents to and from English for $0.10 a word. This could be useful if you want to translate a contract from English to another language. Another alternative is paying by the hour. There is a site entitled www.trint.com which charges $15.00 per hour on a pay-as-you-go or $40.00 a month for three hours of uploaded audio.
Another option is actually using a live person—I know, go figure, right? There are various sites you can go to where people work out of their homes doing transcription. For example, there is a site entitled www.workfromhomehappiness.com which provides legal transcription. They provide a list of transcribers, so you can speak directly with a person. It does not mention rates, but essentially, you are hiring your own off-site typist. Another site is www.upwork.com where you can post a transcription need and people bid to complete for your project. If you want to get creative or bold, you can post a job on Craigslist.
For a vetted company, there is a site entitled www.speakwrite.com which charges $1.05 per word for general transcription and $1.25 per word for legal transcription. They advertise themselves as having human powered transcription machines that return work flow in approximately three hours. They also have a mobile app for transcription solutions. If you have large transcription and are concerned about having one person complete a project, there is a site, www.transcribeme.com, which advertises an affordable speech to text rate of $0.10 per minute. Another site is www.voicebase.com. This is an interesting AI (artificial intelligence) speech to text product which allows you to create a custom vocabulary, number formatting, and provides an instant search.
I have been following speech to text transcription services for many years and the advances are amazing. However, I believe we are at the early phase where artificial intelligence has gotten much better with tools like Siri, Alexa and Google Cast. It may only be a matter of time until our thoughts are transcribed without us even having to speak!
April 30, 2018 / Julie Brook, Esq, CEB
Reprinted by permission.
Many attorneys are unfamiliar with the forum when they find themselves involved in an administrative action. Don’t worry—these tips will help.
Get expert guidance to help you successfully negotiate your way through the maze of administrative rules and regulations in CEB’s California Administrative Hearing Practice. And watch CEB’s program Administrative Hearing Procedures and Practiceto learn the ins-and-outs of agency practice.
Yes. Vacations have the potential to break into the stress cycle, according to Psychology Today. See, https://www.psychologytoday.com/us/blog/fulfillment-any-age/201006/the-importance-vacations-our-physical-and-mental-health
CNN tells us the “United States doesn't have a strong vacation culture”.https://www.cnn.com/travel/article/why-vacations-matter/index.html
Maybe that should change. As solo and small firm practitioners, we wear many hats. Perhaps Vacation Planner should be one of them.If you missed National Plan a Vacation Day (January 30) there is still time!
“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
By Steven L. Krongold
California Supreme Court
Anti-SLAPP Motion: 60-Day Deadline
Newport Harbor Ventures LLC v. Morris Cerullo World Evangelism, No. S239777 (3/22/18).
Anti-SLAPP motions may be filed “within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (Code Civ. Proc. § 425.16, subd. (f).) The defendants filed a special motion within 60 days of the third amended complaint, but not within 60 days of any earlier complaint. The special motion challenged causes of action that were included in the earlier complaint. As a result, the motion was untimely. An amended complaint reopens the time to file the motion without court permission only if it pleads new causes of action that could not have been the target of a prior anti-SLAPP motion, or adds new allegations that make previously pleaded causes of action subject to an anti-SLAPP motion. The Court disapproved of Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, to the extent it held otherwise.
Negligence—Special Relationship & Duty to Warn
Regents of the Univ. of Calif. v.Superior Court (Rosen), No. S230568 (3/22/18)
On October 8, 2009, while working in a chemistry lab at UCLA, Katherine Rosen was suddenly stabbed in the chest and neck with a kitchen knife by fellow student Damon Thompson. Rosen was taken to the hospital with life-threatening injuries but ultimately survived.Rosen sued the university and several of its employees for negligence, arguing they failed to protect her from Thompson’s foreseeable violent conduct. The trial court denied UCLA’s summary judgment motion on grounds (1) UCLA owed a duty of care because colleges have a special relationship with students in the classroom based on their supervisory duties and the students’ status as business invitees; and (2) there were triable issues of breach because, although aware of Thompson’s “dangerous propensities,” it failed to warn or protect her from Thompson’s foreseeably violent conduct.UCLA challenged this order in a petition for writ of mandate. A divided panel of the Court of Appeal granted the petition. The majority held that UCLA owed no duty to protect Rosen based on her status as a student or business invitee, or based on the negligent undertaking doctrine. The Supreme Court reversed, holding that colleges have a duty to use reasonable care to protect their students from foreseeable violence during curricular activities.
Thompson had a history of depression and complained of auditory hallucinations and paranoid thinking. For several months, he had heard people talking about him and insulting him, even when “there’s no one there.” At UCLA, he was diagnosed with possible schizophrenia and major depressive disorder, and agreed to take a low-dose antipsychotic medication and begin outpatient treatment. As a result of a dorm incident, Thompson was expelled from university housing and ordered to return to therapyat the beginning of fall quarter. After he moved to an apartment, Thompson twice called the police to complain neighbors were yelling at him through the floor. Meanwhile, Thompson continued to experience auditory hallucinations in the classroom.All of these facts created triable issues preventing summary judgment.
California Courts of Appeal
Partnership—Superseded by Corporation
Eng v. Brown, No. D071773 (4th Dist., 3/22/2018)
A jury found that three people entered into a partnership or joint venture, but it was terminated when they formed a corporation, B.L.E. Fish, Inc., to purchase and operate a seafood restaurant in San Diego. The Court affirmed this finding, and the conclusion that the claim for breach of fiduciary duty based on a partnership or joint venture was therefore unsupportable. The Court followed Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1157. The trial court also properly allowed defendants to amend the answer to assert the affirmative defense, known as “supersession,” which alleged that the corporation superseded the partnership (even though defendant also denied formation of the partnership). Plaintiff failed to satisfy his burden of proof that the partners intended to retain their partnership notwithstanding incorporation. Litigants should be mindful that courts “have shown considerable skepticism towards alleged preincorporation agreements.”
C.C.P. § 998 – “Exclusive of Costs”
Timed Out LLC v. 13359 Corp., No. B280301 (2nd Dist., pub. 3/27/18)
Defendant made a 998 offer for the “total sum” of $12,500, “exclusive of reasonable costs and attorney fees, if any,” in a right of publicity under Civil Code section 3344.Plaintiff failed to accept the offer, and failed to obtain a more favorable award (received a judgment for only $4,483.30, plus fees and costs).The trial court thus awarded plaintiff pre-offer attorney fees of $29,820 and defendant post-offer fees of $31,395, resulting in a net award of fees to defendant of $1,575.The trial court awarded plaintiff pre-offer costs of $480 and defendant $15,757.63. Judgment incorporating the cost award was affirmed.The court found no ambiguity in the 998 offer, rejecting plaintiff’s arguments that the offer could reasonably mean waiver of costs and fees.
Breach of Contract—Delayed Discovery & Alter Ego
Eleanor Licensing LLC v. Classic Recreations LLC, No. B275429 (2nd Dist., 3/21/2018)
Plaintiff, a company formed by the widow of the late H.B. “Toby” Halicki, who produced and starred in the original motion picture “Gone in 60 Seconds,” sued to recover title to and possession of a replica 1971 Fastback Ford Mustang, code named “Eleanor,” that was featured in the film and its 2000 remake. The vehicle was sometimes (erroneously) referred to in the film as a 1967 Shelby GT-500.Plaintiff’s claim for breach of contract was untimely filed 4 years and 8 months after a demand letter was sent, alleging breach of a 2007 agreement.There was no basis for delayed discovery.The claim for “Specific Recovery of Personal Property” under C.C.P. § 627 was timely. Similar to a quiet title action, the limitations period began to run when a wrongful taking occurred, i.e., when the LAPD seized and impounded the vehicle based on a replevin order the defendants obtained in Oklahoma.
But here’s the rub.Plaintiff was awarded $6,657 in damages for storage fees, and $176,050 in attorney’s fees under Civ. Code § 1717 as prevailing party on the contract claim. The award was against the members of an LLC based on the alter ego doctrine. Since the contract claim was time-barred one would think the fee award automatically gets vacated. Not so fast. The defendants did not assert that argument on appeal.Instead, they argued the fee award against the individuals should be reversed only if the court reverses the alter ego ruling, but otherwise affirms the judgment. Luckily, the court did reverse the alter ego ruling.
“That Tony Engel and Jason Engel, as co-owners of the two businesses, were authorized to make all decisions related to the license agreement and the manufacture and sale of the Eleanor replicas in no way indicates any commingling of personal and corporate assets, use of corporate assets for personal purposes, gross undercapitalization of the corporate entities, disregard of corporate formalities or any other of the many circumstances that might support the conclusion that no separation actually existed between these two individuals and the two corporate entities. Moreover, Tony Engel’s offer of a personal guarantee to Halicki in connection with the corporations’ contractual obligations, if meaningful at all in this context, suggests that he and his resources were viewed as distinct from those of the corporations.” Jason Engel’s “assertion that Classic Recreations functioned as his fictitious business name did not establish that he used the corporate form for any fraudulent or deceptive purpose, as required to impose alter ego liability.”Since the Engels were neither parties to the license agreement nor alter egos of the two corporations that entered into the agreement with Eleanor Licensing, they are not jointly and severally liable for that award.
Attorney Fees—Private Attorney General Doctrine
People v. Investco Mgt & Dev., Case Nos. A143406 & A143307 (1st Dist. 4/18/2018)
The Commissioner of the Department of Business Oversight (DBO) took enforcement action against the real estate investment company Investco Management & Development LLC (Investco M&D) and the promoters who offered and sold memberships in numerous LLCs. According to the DBO, these membership interests constituted unregistered securities. The LLCs were acquiring rural property.Defendants failed disclose to prospective investors that the same property had been purchased by an affiliated entity only weeks or months before for a substantially lower price and sold to each LLC, resulting in undisclosed profits to defendants. The scheme raised approximately $22 million from 443 investors.
The court entered a stipulated interlocutory judgment based on a confidential settlement between the DBO and Investco.The investors, however, successfully opposed a motion to amend a judgment that would have completely stayed their respective individual fraud actions. They successfully argued that the settlement agreement was unduly favorable to Investco and the promoters because it permitted them to retain the fruits of their fraud and allowed them to remain in control of the underlying properties and investment vehicles, subject to limited oversight. The investors further contended the settlement agreement was unfairly punitive against them because it limited their income, restricted their damages, modified their private contractual relations, forced them to be involuntary partners with the promoters, and replaced their right to legal recourse with a revocable, unsecured personal “guarantee” of 70 percent return on their principal investment.
The court awarded the investors attorney fees in the sum of $149,500, payable jointly and severally by the DOB and Investco.The award was affirmed under C.C.P. § 1021.5, which codifies California’s version of the private attorney general doctrine, an exception to the usual rule that each party bears its own attorney fees.
Under section 1021.5, a superior court may award attorney fees to (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest if (3) a significant benefit has been conferred on the general public or a large class of persons, (4) private enforcement is necessary because no public entity or official pursued enforcement or litigation, (5) the financial burden of private enforcement is such as to make a fee award appropriate, and (6) in the interests of justice the fees should not be paid out of the recovery. The court found that each element of the statute was satisfied.
Parol Evidence Rule—Fraud Exception
IIG Wireless, Inc. v. Yi, No. G053393 (4th Dist., 3/27/18, publ. order 4/23/18)
IIG was formed in June 2007, and known under its name at the time, Unlimited PCS, Inc., a distributor and retailer for cellular phones, equipment and plans for MetroPCS. IIG initially issued 100,000 common shares of stock, with 40,000 going to founding shareholder Yi (CEO), and 30,000 each to Hu and Lee (40/30/30). There was substantial evidence at trial that Yi misrepresented to his fellow shareholders that MetroPCS required him to be majority shareholder, thereby persuading Hu and Lee to transfer 5,000 shares each (50/25/25). Hu and Lee were led to believe these were treasury shares owned by the corporation. However, Yi subsequently acted as if the shares were his personally, and refused to return them when he left. These actions caused the corporation harm by forcing IIG to eventually buy the shares back.
IIG was able to introduce evidence of the false representations. The Court affirmed this evidentiary ruling over the parol evidence objection. The Court declined to give Riverisland a narrow reading, urged by Yi, that would restrict use of parol evidence where a party seeks to invalidate or rescind an agreement.“The court’s intention in Riverisland was to bring its case law into line with [C.C.P.] section 1856, subdivision (g), which states: “this section does not exclude other evidence . . . to establish . . .fraud.” While the court noted in Riverisland that if “fraud is proven, it cannot be maintained that the parties freely entered into an agreement reflecting a meeting of the minds” (Riverisland, supra, 55 Cal.4th at p. 1182), the court said nothing about limiting its holding to cases where rescission or voiding the contract was the only remedy sought.” Evidence of promissory fraud is admissible, even if directly at variance with the terms of an integrated agreement.
Ninth Circuit Court of Appeal
Standing—Breach of Privacy
In re Zappos, No. 16-16860 (9th Cir. 2018)
Plaintiffs sufficiently alleged an injury in fact based on a substantial risk that the Zappos hackers will commit identity fraud or identity theft. The panel assessed plaintiffs’ standing as of the time the complaints were filed, not as of the present. In January 2012, hackers breached the servers of online retailer Zappos.com and allegedly stole the names, account numbers, passwords, email addresses, billing and shipping addresses, telephone numbers, and credit and debit card information of more than 24 million customers. Several of those customers filed putative class actions in federal courts across the country, asserting that Zappos had not adequately protected their personal information. Court followed Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir. 2010) (credible threat of fraud or identity theft from use of unencrypted personal information supported standing), despite Clapper v. Amnesty International USA, 568 U.S. 398 (2013) (threatened harm must be “certainly impending” to satisfy “objectively reasonable likelihood” of injury).
Copyright Infringement—Musical Composition
Williams v. Gaye, No. 16-55626 (9th Cir. 2018)
Marvin Gaye’s musical composition entitled to broad copyright protection, and court will not disturb jury’s finding of access and substantial similarity, and thus infringement, by Pharrell Williams and Robin Thicke based on “Blurred Lines,” the best-selling single of 2013. Also, defendants cannot appeal from denial of summary judgment since they had a full trial on the merits, and did not raise purely legal issues. The jury awarded actual damages in the sum of 50% of the publishing revenues for “Blurred Lines.” This was proper because based on reasonable, hypothetical license rate. Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 709 (9th Cir. 2004).
By Evie Jeang
Ideal Legal Group, Inc.
Los Angeles, CA
Are prenuptial agreements out of date? Older generations have tended to shy away from prenups, but as it turns out, millennials are now taking advantage of the benefits of premarital agreements – and not simply for traditional issues such as finances and ownership of property.
What Is a Prenup?
A prenuptial agreement - also known as an antenuptial agreement or a premarital agreement, and commonly shortened to “prenup” or “prenupt” - is a contract entered into prior to a marriage or civil union. Traditional prenuptial agreements normally include division of property and spousal support in the event of divorce; these are usually what people think of when they hear the word “prenup.” In essence, prenuptials are usually seen as a backup plan in case a marriage doesn’t go quite as expected.
For that reason, prenuptials are often regarded as negative. Older generations consider it odd or even suspicious, associating it with questionable marriages. Rather than being considered as marriage planning tool, it is more often seen as an indication that a couple is actually expecting to get a divorce, or the presumption that one member of the couple will attempt to take advantage of the other in the event of a divorce.
Millennials are actually reversing this idea, with an increasing number of financially-aware millennials requesting relationship agreements pre-marriage in the interest of protecting their assets. However, finances are not the only thing that millennials are including in their prenuptial agreements.
The most interesting aspect of new millennial prenuptials is the uptick in unorthodox requests within these agreements.
These agreements often cover much more than just the division of a variety of assets for long-term couples. Millennial prenuptials range from maintaining a certain weight to stipulations about frequency of sex. Other unusual requests that have been made in relationship agreements include the division or shared custody of major purchases and pets, respectively. Prenuptials now encompass aspects such as lifestyle patterns and romance, often holding experiences in the same regard as physical belongings. Emotional experience and equal responsibility are now on the same footing as property and money, as the modern era starts to more publicly recognize mental health and gender gaps.
However, it’s important to remember that not all prenuptial agreements can be enforced. Both parties should have attorneys representing them in order to ensure that the agreement is enforceable, especially if the requests within are not conventional. Considering recent trends in millennial prenuptials, its better safe than sorry when it comes to the legality of some requests. Depending on individual cases, a private judge may be required to sit in during the signing of the document, and some attorneys even recommend videotaping the signing.
A Caveat: California Law and Cohabitation
Prenuptials are especially important in California, where common-law marriage, sometimes mistakenly referred to as cohabitation, hasn’t been legally recognized since 1895. As of now common-law marriages can still be contracted in the District of Columbia, Alabama, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas,\ and Utah. All other states have stopped recognizing common-law marriage, or have never permitted common-law marriage.
In short, common-law marriage is when a couple is married and considered married (in certain states), but have not formally registered their marriage civilly or religiously. It is similar to statutory marriage in that both partners must consent to the marriage, be of legal age or have parental consent, and must be able to marry - some states do not allow prisoners to marry, for example. The major differences are that common-law marriages are not issued a marriage license, nor is a marriage certificate filed with the government; there is no formal ceremony with witnesses to the marriage; both partners must hold themselves out to the world as husband and wife (which is actually not a requirement of statutory marriage); and most jurisdictions require couples to be cohabiting when the common-law marriage is formed, sometimes for a minimum amount of time.
However, the term “common-law marriage” is often used by the media to refer to couples that live together, which causes some confusion about both the term and the legal rights of unmarried partners. Cohabitation, usually what the media actually means, is the actual term for a couple who are living together, and overall more common than common-law marriage.
Cohabitation agreements essentially serve the same purpose to unmarried couples as prenuptial agreements do to married couples. The line between these agreements blurs when it comes to common-law marriage, mostly because common-law marriage is a bit like the middle ground between cohabitation and statutory marriage. However, unlike prenuptial agreements, cohabitation agreements do not include division of property, child support or custody in some cases. Because California does not recognize common-law marriage, it means that the only way to include property and finance into an agreement is to make a prenuptial agreement, rather than a cohabitation agreement. In order for the prenuptial agreement to take effect, common-law married couples should also seek a statutory marriage.
Marriage is often a lot more work than people expect - the same is true for the legalities of marriage, especially now that millennials are evolving age-old practices like prenuptials.
Mark your calendars for the inaugural California Lawyers Association Annual Meeting—a terrific opportunity to learn and to network.The CLA Annual Meeting will be held in San Diego this year:
Friday-Saturday, September 14-15, 2018 Sheraton San Diego Harbor Island San Diego
This event follows in the footprints of the Sections Convention of 2017, and more than 30 years participating in the Annual Meeting of The State Bar of California. In fact, this event will feature many of the events you associated in the past with the Bar’s Annual Meeting. The Solo and Small Firm Section hopes to see you there!
By Ritzel Stareigh Ngo
This month we had a great turn out for our live programs. First, I want to acknowledge Sabrina Green, Esq. for her stellar contributions in the Live Program "The Business of Law for Small Firms and the Solo Practitioner" on April 13, 2018 at Loyola Law School.This was a widely attended attended MCLE event - Thank you to Sabrina and to our presenters, Cynthia Elkins, Esq. and Christopher Toews, Esq. for their contributions!
I urge you to start thinking about attending the Sections Convention in San Diego. This Convention is replacing the State Bar Annual Meeting and we hope it will exceed all expectations.Please mark your calendars for September 12-13, 2018 in San Diego where you can fulfill all your MCLE programs and credits.
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.
In April, we did 2 programs:
This Outreach program provides free programs to underserved, smaller, local bar associations.If you would like to see a program in your area, please contact Nancy Goldstein:firstname.lastname@example.org
Spring is a time for optimism:
“Perfection is not attainable, but if we chase perfection we can catch excellence.” -Vince Lombardi
“Remember no one can make you feel inferior without your consent.” -Eleanor Roosevelt
“Nothing is impossible, the word itself says ‘I’m possible’!” -Audrey Hepburn