It has been an eventful year as Chair of the Solo and Small Firm Section, and I am extremely grateful to the
members of our Executive Committee who have kept the work moving ahead as we work through the transition to
our own entity. Thank you to our members for continuing to join us at events and through our publications. It is
with great excitement for the future of the Section that I place the reins in the very capable hands of Ritzel Ngo.
Thank you, Ritzel, for leading us into the new Bar year! Megan Zavieh, Outgoing Chair
My name is Ritzel S. Ngo and I am a family law attorney in both Los Angeles and Ventura counties. It is with
excitement that I lead our section into 2018. I want to recognize Megan Zavieh for her leadership with our current
executive committee – thank you for your mentorship. We look forward to your continued work with our
committee as immediate past chair.
Our Vice-Chair this year is Renee Galente, who is a trial lawyer in San Diego, and who has devoted her service
with the executive committee to social media and membership initiatives.
Our Treasurer, Jeremy Evans, is a sports and entertainment attorney that practices in both Los Angeles and San
Diego counties. He has served as the Editor of the Practitioner magazine, and has brought a fresh perspective to
I want to congratulate this year’s 2017 Attorney of the Year Tracee Lorens! The executive committee is proud to
recognize the achievements of this well deserving recipient of the Award.
As the current chair, I look forward to bringing live MCLE programs to both the San Francisco bay area, and Los
Angeles area – in doing so, I hope to meet members of our section and learn more about how the section can
improve, serve and support your needs as a solo or small law firm.
We have an Outreach initiative in which members of our section visit and offer MCLE seminars to bar
associations which are not in large cities and which are not routinely provided with programming. Please send me
an e-mail at: email@example.com to set up a visit from a member of our executive committee to teach an MCLE
program at your local bar association.
I would love to hear more about how the Solo and Small firm section can do more for your practice.
Please remember, your member benefits include publication opportunities in both the section’s e-Practitioner
and Practitioner magazines. If writing is your forte, we can give you a voice! Ritzel Starleigh Ngo, Incoming Chair
By Steven L. Krongold
Malicious Prosecution – Interim Adverse Judgment Rule
Parrish v. Latham & Watkins, No. S228277 (8/10/2017)
Lack of probable case, an essential element of malicious prosecution, cannot be established if the trial court in the underlying case denied summary judgment, denied a directed verdict, or made some other ruling on the merits, even if the result is overturned on appeal or by a later ruling of the trial court. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 818.) This principle is known as the “interim adverse judgment rule.” In Parrish, the Supreme Court reaffirmed this principle. The trial court had initially denied summary judgment in a trade secrets case, finding that the lawsuit had sufficient potential merit to proceed to trial. When plaintiff lost at trial, the court awarded sanctions under the Uniform Trade Secrets Act, ruling that the claim, even if superficially meritorious, in fact lacked evidentiary support and was brought in bad-faith. The Court of Appeal rejected an estoppel argument, and affirmed the bad-faith finding. (FLIR Systems, Inc. v. Parrish (2009) 174 Cal.App.4th 1270.) Nonetheless, the earlier denial of summary judgment barred the later malicious prosecution lawsuit.
Attorney Fees – Novation
Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, No. S223536 (7/31/2017)
Plaintiff sued for breach of a repurchase agreement. Defendants asserted, as an affirmative defense, that an option agreement acted as a novation. Did the novation defense trigger the attorney fees provision in the repurchase agreement? No, says the Supreme Court. Raising an affirmative defense is not legally the same as bringing an action or proceeding to enforce the agreement. Defendants were nonetheless entitled to attorney fees under the option agreement because the plaintiff’s complex real estate dispute was brought “in connection” with that contract. The clause at issue provided for an award of attorney fees to the prevailing party “[i]f any legal action or any other proceeding . . . is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this Agreement.” The dissent argued that plaintiff sought to enforce a different contract, a repurchase agreement, that (according to defendants) was superseded by the option agreement. Plaintiff, unlike defendants, had not “alleged” any dispute about the option agreement, nor did it bring its action “because of” any such “alleged dispute.”
Fair Debt Collection Practices—Law Firm Misrepresentation
Afewerki v. Anaya Law Group, 9th Cir. No. 15-56510 (8/18/2017)
A law firm filed a state court collection complaint. The complaint overstated by $3,000 the principal due and inflated the interest rate. These false allegations were material and thus supported the debtor's complaint for violation of the Fair Debt Collection Practices Act, which prohibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. “A complaint served directly on a consumer to facilitate debt-collection efforts is a communication subject to the requirements of § 1692e.” Material false representations are those that could “cause the least sophisticated debtor to suffer a disadvantage in charting a course of action in response to the collection effort.” The materiality inquiry focuses on the objective question of how the least sophisticated debtor could have reacted to a misstatement; the question of what the plaintiff himself would actually have done differently had the lawyer not misstated the amount of his debt is irrelevant in determining materiality. The law firm’s $3,000 overstatement, plus the inflated interest rate, was material. The least sophisticated debtor in plaintiff’s position, concerned that he had been sued, may well have simply paid the amount demanded in the complaint or, alternatively, would have allowed entry of a default judgment.
Article III Standing
Robins v. Spokeo, Inc., No. 11-56843 (9th Cir., 8/15/2017)
On remand from the U.S. Supreme Court, the Ninth Circuit held that plaintiff had sufficiently alleged standing to sue for violations of the Fair Credit Reporting Act (“FCRA”). Plaintiff sued after Spokeo published a report which falsely stated his age, marital status, wealth, education level, and profession, and which included a photo of a different person. Plaintiff alleged that such errors harmed his employment prospects at a time when he was out of work (could not get hired), and that he continues to be unemployed and suffers emotional distress as a consequence. In Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Supreme Court noted that although the harm was particularized to plaintiff, it was not clear whether the alleged injury was sufficiently concrete as well. The Panel held it was. Plaintiff’s injury, based on inaccurate reporting, was “real” and not “abstract” or merely “procedural.” The FCRA protects reputational and privacy interests similar to the common law right to prevent the dissemination of private information, and the law of defamation and libel per se. “Courts have long entertained causes of action to vindicate intangible harms caused by certain untruthful disclosures about individuals, and we respect Congress’s judgment that a similar harm would result from inaccurate credit reporting.”
Enforcement of Judgments – Reverse Veil Piercing
Curci Investments, LLC, v. Baldwin, 4th Dist. No. G052764 (8/10/2017)
Revised Uniform Limited Liability Company Act does not prevent reverse veil piercing as a means of reaching LLC’s assets. Judgment Creditor Curci had attempted to collect for nearly half a decade. It was “frustrated by Baldwin’s non-responsiveness and claimed lack of knowledge concerning his own personal assets and the web of business entities in which he has an interest.” Although formation of the LLC predated the underlying judgment, its purpose always remained the same: to serve as a vehicle for holding and investing Baldwin’s money. With Baldwin’s near complete interest in the LLC, and his roles as CEO and managing member, Baldwin “effectively has complete control” over what it does and does not do, including whether it makes any disbursements to its members (Baldwin & his wife). Since the time judgment was entered in Curci’s favor, Baldwin used that power to extend the payback date on loans made to benefit his grandchildren (not a single cent has been repaid), and to stop making distributions to himself and his wife, despite having made $178 million in such distributions in the six years leading up to the judgment. On remand, the trial court must consider and weigh all the veil piercing factors in deciding whether to add the LLC as judgment debtor. (See Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538-39.)
SLAPP—Right of Publicity—Facebook
Cross v. Facebook, Inc., 1st Dist. No. A148623 (8/9/2017)
Lawsuit arose over a Facebook page called “Families Against Mikel Knight.” Plaintiffs alleged the page incited violence and generated death threats against Knight and his team. When Facebook refused to take it down, plaintiffs filed a complaint alleging statutory and common law violations of Knight’s right of publicity, along with a derivative UCL claim. Those claims survived an anti-SLAPP motion. However, the Court of Appeal reversed, with instructions to enter an order granting the anti-SLAPP motion in its entirety and striking the complaint. Facebook displayed ads adjacent to content created solely by third-parties who used Knight’s name and likeness without permission. Facebook, however, did not use his name or likeness in any way. Furthermore, the ads themselves did not appropriate plaintiff’s name or likeness for commercial purposes. The mere appearance of ads next to a third party’s use of Knight’s identity did not demonstrate a commercial use by Facebook.
Attorney Disqualification—Shareholder Derivative Action
Beachcomber Mgt. Crystal Cove, LLC v. Superior Court, 4th Dist. No. G054078 (7/28/2017)
The trial court erred in disqualifying attorney. The trial court based its ruling on the general prohibition against successive representations when the two representations are substantially related. The trial court, however, failed to apply controlling authority that allows an attorney who previously represented both a closely held company and its insiders to continue representing the insiders in a derivative lawsuit brought on the company’s behalf against the insiders. This exception for derivative lawsuits derives from recognition that insiders are the true sources and possessors of a closely held company’s confidential information. In such a company, the functioning of the company and its insiders typically are so intertwined that any distinction between the company and its insiders is entirely fictional. The insiders are the repositories and source of all confidential information an attorney may receive in representing the company. As such, the insiders would be able to provide their new attorney with the same information their previous attorney had, and therefore disqualifying the original attorney would be a futile act that merely generates attorney fees as the new attorney gets up to speed. Similar results were reached in Forrest v. Baeza (1997) 58 Cal.App.4th 65, and its progeny, Ontiveros, Blue Water, and Gong.
Writ of Mandate—Mandatory Duty—Posting Criminal Convictions
Skulason v. Calif. Bureau of Real Estate, 1st Dist., No. A147047 (8/16/2017)
Penal Code sections 1203.4 and 1203.4a allow convicted criminals to obtain dismissals of their convictions under certain circumstances, such as completion of probation. Dismissal means the convicted person is, with certain exceptions, “released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” Belinda Skulason, a real estate salesperson, brought an action against the California Bureau of Real Estate alleging it had mandatory duty to remove from its public website a document revealing that she had been convicted of three misdemeanors that were later dismissed. The Court of Appeal disagreed. The Bureau had no mandatory duty because the convictions were validly entered. The Court rejected contention that Labor Code § 432.7, subd. (a)(1) imposed a mandatory duty. This provision states that an employer shall not seek from any source whatsoever, or utilize, as a factor in determining any condition of employment any record concerning a conviction that has been judicially dismissed. Nothing in Section 432.7 can be read as imposing a duty on non-employers such as the Bureau. The Court also rejected Skulason’s argument that the Board's posting violated her constitutional right to privacy.
Arbitration – Browse Wrap Agreement
Meyer v. Uber Technologies, Inc., 2nd Cir., No. 16-2750-cv (SDNY, 8/17/2017)
When Claims for Breach of Fiduciary Duty Are Properly Dismissed in a Malpractice Case
By Jim Ham, Partner, Pansky Markle Ham LLP, Advisors to the Legal Profession™
Attorneys accused of negligence often face complaints containing claims for legal malpractice as well as for breach of fiduciary duty. The Second District Court of Appeal ruled in April of this year that breach of fiduciary duty claims are duplicative of legal malpractice claims unless they allege some further violation of the obligation of trust, confidence or loyalty to a client. See Broadway Victoria, LLC v. Norminton, Wiita & Fuster (2017) 10 Cal.App.4th 1185, 1193.
The plaintiff – client in that case alleged that the defendant - lawyer committed legal malpractice by failing to advise the client regarding a claim against another party. Plaintiff also alleged that in order to generate greater attorneys’ fees by litigating, the attorneys did not inform the plaintiff of a potentially faster and much cheaper option for handling the dispute. Id. at 1192. The plaintiff’s breach of fiduciary duty claim was premised on the same allegations. Id.
At trial, nonsuit was granted on the fiduciary duty claim. The court of appeal upheld the nonsuit on the ground that the fiduciary duty claim was duplicative of the legal malpractice claim. The court stated that breach of fiduciary duty is a tort claim “entirely distinct from a malpractice claim based on professional negligence. [Citations]. Beyond mere allegations of professional negligence, a cause of action for breach of fiduciary duty requires some further violation of the obligation of trust, confidence and/or loyalty to the client.” Id. at 1193.
In reaching its conclusion, the court noted that there was “universal agreement” in other jurisdictions that a breach of fiduciary duty claim cannot survive where it is “merely based on duplicative allegations of professional negligence” by the attorney. Id. at 1193.
Thus, the court concluded that “when the basis of a claim of breach of fiduciary duty arises from the same facts and seeks the same relief as the attorney negligence claim for malpractice, the claim for breach of fiduciary duty is duplicative and should be dismissed.” Id. at 1194.
In order for malpractice plaintiffs to pursue a claim for breach of fiduciary duty against an attorney, they will need to prove that their claim involves a breach of the duty of confidentiality, loyalty or trust. When such conduct is alleged to be intentional, punitive damages would be available for breach of fiduciary duty. Under Broadway Victoria, evidence sufficient to support the imposition of punitive damages will most likely overcome a challenge that the fiduciary duty claim is duplicative. Cases involving conflicts of interest or other actions perceived to violate the duty of loyalty (see, e.g., Oasis West Realty LLC v. Goldman (2004) 51 Cal.4th 811 (lawyer assisted developer on land use issues and then actively took public positon opposing development)), as well as the misuse of confidential information, will satisfy the requirement for alleging a distinct cause of action for breach of fiduciary duty. It is not entirely clear whether courts will dismiss a breach of fiduciary duty cause of action as duplicative where breach of the duty of loyalty, confidentiality or trust is alleged as the basis for both the legal malpractice and breach of fiduciary duty claim where different relief is not requested. The likely result would be dismissal of the breach of fiduciary duty claim as duplicative unless the plaintiff voluntarily elects to dismiss the legal malpractice cause of action and proceed on a breach of fiduciary duty theory. This could have consequences for the attorney, because judgments for breach of fiduciary duty must be reported to the California State Bar. See Cal. Bus. & Prof. Code § 6068(o)(2) (requiring self-reporting of the entry of judgment against the attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity).
What’s Happening with the Affordable Care Act?? The Affordable Care Act (ACA) remains the law of the land. Thus far, Congress has neither repealed nor replaced the ACA. The regulatory agencies charged with implementing the ACA have taken some steps this year to tweak the administration of certain aspects of the law (these changes primarily impact individual and small group health coverage), but the law’s mandates remain in place.
Of particular interest to both individuals and employers is the status of the ACA’s individual and employer “shared responsibility” penalties. Most individuals will owe an individual shared responsibility penalty if they do not have qualifying health coverage throughout the year. For 2017, the individual shared responsibility penalty is the higher of (a) 2.5% of income above the filing threshold or (b) $695. The employer shared responsibility penalty only applies to “applicable large employers” (ALEs). An ALE is an employer that employs on average 50 or more full-time equivalent employees during the preceding calendar year (see IRS Publication 5208). An ALE must offer its full-time employees qualifying health coverage or the ALE could be subject to employer shared responsibility penalties (26 U.S.C. § 4980H).
The IRS has recently reiterated that, notwithstanding the President’s Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal, the ACA’s shared responsibility penalties remain in effect. In four information letters issued in April and June, the IRS explained that there is no existing waiver from the employer shared responsibility penalty, and an individual shared responsibility penalty will be owed by those who do not have qualifying coverage, unless they can show they are exempt from the requirement to have qualifying coverage. (See IRS Information Letters 2017-0010, 2017-0011, 2017-0013, and 2017-0017.)
California Legislature: The legislature returned to Sacramento from its summer recess on August 21st.
Under governing rules, the legislature has until September 15th to pass bills this year. Any bills that do pass by that
date are sent to the governor and he has until October 15th to act on them.
a. California Supreme Court: 2018 Supreme Court Oral Argument Calendar (Aug 7, 2017) http://www.courts.ca.gov/documents/2018_SC_CalendarPublicOnly.pdf
The Supreme Court of California has published its Oral Argument Calendar for next year. The calendar highlights the weeks when oral argument will be held in San Francisco, Sacramento, and Los Angeles. It also includes the dates for the court’s weekly conferences and court holidays for 2018.
Supreme Court Rules Regarding Electronic Filing
These 13 Rules govern the implementation of the court’s electronic filing system under the California Rules of Court 8.70 – 8.79 (Title 8. Appellate Rules, Chapter 1. General Provisions, Article 5. E-filing).
Phased implementation dates:
Voluntary eFiling: 07/10/2017
Mandatory eFiling: 09/01/2017
b. Superior Courts: Reduced Court Services (http://www.courts.ca.gov)
Superior courts statewide continue to face significant financial challenges as a result of the current fiscal crisis, which the Legislature has recognized as one of the most serious and dire ever to affect the state. In an effort to meet these challenges, while remaining open on all days that are not judicial holidays, and preserving as fully as possible access to court services for all litigants, many courts have announced plans to offer reduced services.
Under Government Code section 68106, courts must provide written notice to the public and to the Judicial Council at least 60 days before putting into effect a plan to reduce costs by closing courtrooms or clerks' offices or reducing clerks’ office hours. The council must post all such notices on the Internet site (http://www.courts.ca.gov) within 15 days of receiving them. This site contains all notices that the council has receive from courts pursuant to section 68106.
Please note, however, that the site does not provide complete information for individual courts. For current information about a specific superior court, the number and location of its courtrooms, its hours of operation, and any upcoming changes, please consult the court's website. A list of court websites is available.
Notice Period in effect (Change not yet implemented)
Superior Court Date Notice Received Notice to the Judicial Council
Notice Period in effect (Change not yet implemented)
8/10/17 Service Reductions starting Oct 16, 2017
7/26/17 Service reductions starting Sep 29, 2017
7/5/17 Service reductions starting Sep 5, 2017
5/15/17 Family Court and Madge Bradley relocation
5-12-17 amend http://www.courts.ca.gov/documents/68106-stanislaus-20170512.pdf
By Robert M. Klein, Los Angeles
How do you stay organized? Have you tried an online to do list? The buzz these days is to clear the clutter
from your brain. This means writing down and tracking all items on your to do list, listing out little and big ideas,
and other thought which takes away from your focus. Before I start, there is something important to say: there is
no such thing as the one right tool. There are many online options to track a to do list. The best option is the one
you actually use.
I have tried many online to do lists and settled on two methods. The first is very old fashioned: pencil and
paper. I keep a piece of paper on my desk. It is easy to look at, it is not a distraction, and I can quickly jot down
ideas. My online choice is Nozbe. This serves me well as I loosely follow David Allen's GTD method. Be mindful to
consider whether or not you are working with a team or working alone. This may affect your use and pricing.
There are other online options to consider. Some charge a monthly or annual fee and some are free. For
example, Todoist and Wunderlist are free. Trello and Asana are more team oriented. There is also Evernote,
Microsoft OneNote or gTasks. Then there are some that have other options. For example Habitica turns goals into
games. Any.do offers an assistant. Finally, virtually all law practice management systems offer some form of a to do
It does not matter what you chose, as long as you are creating a list and crossing off tasks.
The California Court of Appeals offers tools on the court’s website to help the practitioner follow court
requirements. This includes their Guide to Electronic Appellate Documents found at:
When you pay your dues, don’t forget to renew your membership in the Solo and Small Firm
Section. The 6 FREE (and hard to get) MCLE SPECIALTY CREDITS alone pay for the cost of your
If you are in compliance Group 3 (N-Z), don’t find yourself on the uncomfortable end of an audit.
Even if you have a year or two to fulfill your obligation, why wait? Join the Section today, and you have a
year to take advantage of the free MCLE.
The general rules for compliance follow:
1. Active members of the State Bar are required to complete 25 hours of MCLE every
2. Members must fulfill at least one-half of their MCLE requirement with activities
approved for “participatory" MCLE credit.
3. The maximum number of hours of "self-study" is 12.5.
4. Of the 25 hours, 6 hours must be completed in the following special categories, which
may be completed as participatory or self-study credit:
a) Legal Ethics: 4 hours (required)
b) Competence Issues (formerly known as Prevention, Detection and Treatment of
Substance Abuse or Mental Illness): 1 hour (required)
c) Recognition and Elimination of Bias in the Legal Profession and Society: 1 hour
Here are some tips to make sure you are MCLE compliant. First, log in to your State Bar Profile
and navigate to the CLE Summary and Tracking Tool. This tool automatically keeps track of all MCLE
credits you’ve earned, which were reported to the State Bar. This can be a perk of attending programs
sponsored by the Solo and Small Firm Section. The CLE Summary automatically tracks your attendance
so you can review the MCLE that you’ve completed and can easily see where you may be deficient.
Second, if you are a member of the Solo and Small Firm Section, you are entitled to 6 free selfstudy
credits as part of your membership. These six credits alone make your membership worthwhile.
The best part is that the 6 free hours will completely cover the required special topics of ethics,
competence, and elimination of bias. You can access those free 6 hours by signing into your State Bar
Profile by clicking here.
Next, check out the online catalog of programs offered through Solo’s Section by clicking here.
You can see some of the best speakers and hottest topics recorded from live programs and webinars
throughout the state. For those who need “participatory credit,” most of these programs count.
If you haven’t reviewed your MCLE compliance in a while, you should review it soon. If you need
additional credits to become compliant, use your free member benefit and complete the 6 free online
credits detailed above, check out the online catalog, and consider attending a live program or webinar in
the coming year. Taking these simple steps will improve your practice and ensure your compliance with
the MCLE requirements.
The truth is incontrovertible.
Malice may attack it, ignorance may deride it, but in the end, there it is.
Be careful about reading health books.
You may die of a misprint.
A good source for webinars is the Calendar in the California Bar Journal, showing all of the upcoming webinars from all of the Sections, as well as in-person programs. Did you know that you can purchase previous webinars and self-studies? Do so here at this link!
A. The Solo and Small Firm Section Executive Committee Meeting
Next meeting: September 29, 2017, Teleconference at 4 PM
Notice and Agenda
Questions regarding any agenda item should be directed to the Section Coordinator, John Buelter, at 415-
538-2341 or 180 Howard Street, San Francisco, CA 94105-1639. The order of business is approximate and
subject to change.
B. Executive Committee Welcomes New Members
· Robert M. Klein, Los Angeles
· James Ham, South Pasadena
· Bennett Root, Pasadena
· Christopher Toews, San Luis Obispo
· Omar Anorga, Pasadena