In Carpenter & Zuckerman v. Cohen (May 10, 2011, B215544) __ Cal.App.4th __ [2011 DJDAR 6665] the court affirmed a decision denying attorney's fees to the plaintiff law firm and two of its partners on the ground that their representation by an associate in the firm constituted self-representation.
Plaintiff and two of its partners had moved to strike a cross-complaint filed against them. The special motion to strike was granted and defendant appealed. The appeal was dismissed as untimely and plaintiffs were awarded reasonable attorney's fees. Back in the trial court, plaintiffs contended that their lawyer on appeal was an independent contractor who entered into a contingency fee agreement under which she was entitled to any attorney's fees awarded by the court. No written contingency fee agreement was submitted, however, and the trial court considered a prior declaration filed by one of the plaintiffs in the case that identified the appellate lawyer as an associate in the firm. The court also took notice that the State Bar website showed the lawyer's address as that of the plaintiff law firm, and denied the request for fees.
Since the trial court's determination that the lawyer was an associate of the firm was supported by substantial evidence, the court of appeal concluded that the firm had represented itself in the prior appeal. Although the attorney was not a partner and had no financial interest in the firm, she was an employee of the firm hired primarily to perform services for the firm's clients and to generate profits for the firm. The associate was the "product" of the firm and was comparable to a sole practitioner representing himself or herself.
The court also rejected the argument that the individual plaintiffs were entitled to their fees, because the cross-complaint did not expose them to any liability separate from the potential liability of the firm, and there was no showing that the attorney performed any services on behalf of the individuals that were not also attributable to her representation of the firm.
Monday, May 30, 2011
Friday, May 27, 2011
Xinos Depublished
On May 18, 2011, the Supreme Court denied review of People v. Xinos and, on its own motion, ordered the appellate opinion depublished. Xinos had held that it was error to deny defendant's motion to suppress the results of the warrantless search of his vehicle's sensing and diagnostic system. See, "The Tide Goes In, the Tide Goes Out," posted March 10, 2011.
Review Granted in Tien
As expected, the Supreme Court granted review of Tien v. Tenet Healthcare on May 18, 2011. In Tien the court of appeal affirmed the trial court's decision to deny class certification to employees who claimed they were denied meal breaks, on the ground there was no dispute that the employer offered the employees the opportunity to take breaks. The appellate court also found that the trial court's reliance on a case that was depublished after the court made its ruling was not improper. See, "Now You See It, Now You Don't," posted March 17, 2011. Further action in Tien by the Supreme Court was deferred pending disposition of Brinker Restaurant Corp. v. Superior Court, S166350.
Thursday, May 26, 2011
I Always Feel Like Somebody's Watching Me
[Note: Subsequent to this post a new opinion was issued on rehearing. The portion of the opinion addressing the admission of the videos was not certified for publication. June 28, 2011, 2011 DJDAR 9637.]
Surveillance videos showing the date and time of the recordings were properly admitted as business records, said the Fourth District Court of Appeal in People v. Sherow (May 9, 2011, D056988), __ Cal.App.4th __ [2011 DJDAR 6553].
An asset protection field investigator for Walmart was called to testify in defendant's trial for the theft of DVD's, and she identified videos recorded by the store's surveillance system. The trial court admitted the videos over defense counsel's objection that the witness was not present when the videos were made and did not know who made them, and that the accuracy of the date and time depended on the equipment being set correctly by other employees.
The court of appeal found that it was within the discretion of the court to admit the videos. The videos were adequately authenticated by the witness' testimony that her review of the videos showed that the system was working properly and that the videos depicted the inside of the stores where the DVD's were taken. Her testimony also established that the videos were business records, making them admissible under the business records exception to the hearsay rule. Testimony from the person who gathered the information in the record is not necessary, and it is sufficient if the witness is familiar with the procedures followed. Considering that there was no evidence that there was any inaccuracy in the date and time stamp, the court properly exercised its discretion.
Surveillance videos showing the date and time of the recordings were properly admitted as business records, said the Fourth District Court of Appeal in People v. Sherow (May 9, 2011, D056988), __ Cal.App.4th __ [2011 DJDAR 6553].
An asset protection field investigator for Walmart was called to testify in defendant's trial for the theft of DVD's, and she identified videos recorded by the store's surveillance system. The trial court admitted the videos over defense counsel's objection that the witness was not present when the videos were made and did not know who made them, and that the accuracy of the date and time depended on the equipment being set correctly by other employees.
The court of appeal found that it was within the discretion of the court to admit the videos. The videos were adequately authenticated by the witness' testimony that her review of the videos showed that the system was working properly and that the videos depicted the inside of the stores where the DVD's were taken. Her testimony also established that the videos were business records, making them admissible under the business records exception to the hearsay rule. Testimony from the person who gathered the information in the record is not necessary, and it is sufficient if the witness is familiar with the procedures followed. Considering that there was no evidence that there was any inaccuracy in the date and time stamp, the court properly exercised its discretion.
Sunday, May 22, 2011
He Lost That Lovin' Feelin'
Evidence of other crimes that is offered to establish that the charged crime was committed, and to show the absence of accident or mistake, is not inadmissible character evidence, said the Second District Court of Appeal in People v. Spector (May 2, 2011, B216425), __ Cal.App.4th __ [2011 DJDAR 6180].
During a night on the town, record producer Phillip Spector invited a hostess at the House of Blues, Lana Clarkson, to his house for a drink. Two hours later, Clarkson was dead from a bullet that entered her mouth and severed her spinal cord. The defense contended that Clarkson committed suicide or, alternatively, that she had shot herself accidentally.
The People offered the testimony of five women whom Spector invited to his house and threatened with a firearm when they attempted to leave. Defendant argued that the testimony was improper character evidence. The court of appeal disagreed.
The evidence was relevant because it made it less likely that Clarkson shot herself either intentionally or accidentally, and tended to establish that a crime had occurred and that the defendant was responsible. Under the doctrine of chances, said the court, the focus is not on the character of the defendant, but on whether the uncharged incidents are so numerous that it is improbable that the defendant would suffer from so many accidents. The evidence tended to prove the objective improbability of the defendant's theories, since it was unlikely that this time it was the woman, and not Spector, who reached for a gun.
The testimony of the other crimes also showed a motive for the crime. Typically an uncharged act may supply the motive for the charged crime in that the former act is the cause of the latter. But a motive may also be shown when the uncharged act does not supply the motive, but both the charged and uncharged acts are the result of the same motive. In this case, the motive was an emotion that incited the defendant to act in a particular way. The evidence tended to show that when faced with similar circumstances, the defendant acted with the same state of emotion.
The court of appeal also approved the trial court's admission of threats made by the defendant to women generally. On one occasion Spector remarked to a security officer that women "all deserve a bullet in their heads." One year later, in the presence of the same officer, he saw a woman get off an elevator and said, "That fucking cunt. I ought to put a bullet in her head right now." These declarations of the defendant's state of mind were admissible since the victim in the case was within the scope of the threat.
During a night on the town, record producer Phillip Spector invited a hostess at the House of Blues, Lana Clarkson, to his house for a drink. Two hours later, Clarkson was dead from a bullet that entered her mouth and severed her spinal cord. The defense contended that Clarkson committed suicide or, alternatively, that she had shot herself accidentally.
The People offered the testimony of five women whom Spector invited to his house and threatened with a firearm when they attempted to leave. Defendant argued that the testimony was improper character evidence. The court of appeal disagreed.
The evidence was relevant because it made it less likely that Clarkson shot herself either intentionally or accidentally, and tended to establish that a crime had occurred and that the defendant was responsible. Under the doctrine of chances, said the court, the focus is not on the character of the defendant, but on whether the uncharged incidents are so numerous that it is improbable that the defendant would suffer from so many accidents. The evidence tended to prove the objective improbability of the defendant's theories, since it was unlikely that this time it was the woman, and not Spector, who reached for a gun.
The testimony of the other crimes also showed a motive for the crime. Typically an uncharged act may supply the motive for the charged crime in that the former act is the cause of the latter. But a motive may also be shown when the uncharged act does not supply the motive, but both the charged and uncharged acts are the result of the same motive. In this case, the motive was an emotion that incited the defendant to act in a particular way. The evidence tended to show that when faced with similar circumstances, the defendant acted with the same state of emotion.
The court of appeal also approved the trial court's admission of threats made by the defendant to women generally. On one occasion Spector remarked to a security officer that women "all deserve a bullet in their heads." One year later, in the presence of the same officer, he saw a woman get off an elevator and said, "That fucking cunt. I ought to put a bullet in her head right now." These declarations of the defendant's state of mind were admissible since the victim in the case was within the scope of the threat.
Thursday, May 19, 2011
Higgins Depublished
Proving that it has no sense of humor, the California Supreme Court denied review of People v. Higgins and ordered that the opinion of the Fourth District Court of Appeal be depublished. [Apr. 27, 2011, S190821, 2011 DJDAR 6019]. Higgins was a boon to criminal defense lawyers and fans of bizarre fact patterns, and will be missed. See, "Is That a Gun in Your Pocket?" posted Jan 28, 2011.
Tuesday, May 17, 2011
May I Refer to My Notes?
[Note: Subsequent to this post the Supreme Court denied review, but ordered the opinion depublished. See, "Gray Depublished," posted Sept. 5, 2011.
In People v. Gray (Apr. 28, 2011, C062668), __ Cal. App. 4th __ [2011 DJDAR 5973] the Third District Court of Appeal held that a party who uses confidential attorney-client communications to refresh his recollection while testifying waives the attorney-client privilege.
Defendant was charged with spousal rape of an unconscious or sleeping victim, rape by foreign object, four counts of burglary, sexual battery, stalking and "a host of misdemeanors." When defendant was called to testify in his defense he brought 18 pages of notes with him and referred to the notes during his testimony. The prosecutor asked to see what he took to the stand and the court ordered disclosure of the notes.
The defendant contended that the notes were confidential communications with his attorneys, and the court assumed this was true for the purpose of the appeal. It concluded that the attorney-client privilege was waived by his bringing the notes to the stand and using them to refresh his memory. Since Evidence Code §771 provides that any writing used by a witness to refresh his or her memory must be produced at the request of the opposing party, defendant's exposure of a significant part of the communications in making his own case was inconsistent with an intent to preserve them as confidential attorney-client communications.
It is unclear from the decision whether the result would be the same if the defendant had reviewed the notes prior to taking the stand. The court said, however, that under the facts of this case it would be unjust to allow a party to use written materials on the witness stand and then hide behind the attorney-client privilege.
In People v. Gray (Apr. 28, 2011, C062668), __ Cal. App. 4th __ [2011 DJDAR 5973] the Third District Court of Appeal held that a party who uses confidential attorney-client communications to refresh his recollection while testifying waives the attorney-client privilege.
Defendant was charged with spousal rape of an unconscious or sleeping victim, rape by foreign object, four counts of burglary, sexual battery, stalking and "a host of misdemeanors." When defendant was called to testify in his defense he brought 18 pages of notes with him and referred to the notes during his testimony. The prosecutor asked to see what he took to the stand and the court ordered disclosure of the notes.
The defendant contended that the notes were confidential communications with his attorneys, and the court assumed this was true for the purpose of the appeal. It concluded that the attorney-client privilege was waived by his bringing the notes to the stand and using them to refresh his memory. Since Evidence Code §771 provides that any writing used by a witness to refresh his or her memory must be produced at the request of the opposing party, defendant's exposure of a significant part of the communications in making his own case was inconsistent with an intent to preserve them as confidential attorney-client communications.
It is unclear from the decision whether the result would be the same if the defendant had reviewed the notes prior to taking the stand. The court said, however, that under the facts of this case it would be unjust to allow a party to use written materials on the witness stand and then hide behind the attorney-client privilege.
Sunday, May 8, 2011
Flying Tractors, Television Plants and Attorney's Fees
Whether attorney's fees may be awarded to a party prevailing on an action to enforce a consent degree must be determined pursuant to Civil Code §1717, which governs attorney's fees in contract actions, said the Fourth District Court of Appeal in In re Tobacco Cases I (Apr. 5, 2011, D056589), __ Cal.App.4th __ [2011 DJDAR 4896].
The People filed an action to enforce a consent decree entered into in 1998 between numerous States, including California, and numerous tobacco companies, including R.J. Reynolds Tobacco Company, which enjoined the companies from using any cartoon in their advertising. In 2006 Reynolds launched an advertising campaign called "Camel Farm' or "Camel Rocks" to promote Camel cigarettes to adult smokers who enjoy rock music on independent labels. In November 2007 Reynolds placed a four-page advertisement in Rolling Stone magazine, which contained photo collages of fanciful objects such as jet-powered flying tractors, radio helicopters and televisions on plant stems. The advertisement appeared adjacent to five pages of the magazine's editorial content, which included cartoons "under any definition of the term."
The trial court found that "a relatively small portion" of the advertisement violated the cartoon prohibition and that Reynolds was not responsible for the placement of the ad near the magazine's cartoons. The People sought attorney's fees pursuant to a provision in the decree that a State may recover attorney's fees if the manufacturer is found to be in violation. The court awarded fees, rejecting Reynold's argument that the consent decree was a contract and that §1717 applied. The court added that even if §1717 applied, the People were the prevailing party since they prevailed on the "significant issue" of whether Reynolds' advertising violated the cartoon ban.
This was error, said the appellate court, because a consent decree is a contract. In a stipulated judgment or a consent decree the parties voluntarily terminate a lawsuit by assenting to specific terms, and this is close enough to a contract to trigger §1717. The trial court also applied the incorrect legal standard in determining the prevailing party under §1717. Under this section, the issue is not whether the party prevailed on a significant issue, but whether the party recovered the greater relief in the action. Since the results in the case were mixed, the trial court needed to compare the relief awarded with the parties' demands and their litigation objectives, and the matter was remanded for reconsideration under the correct legal standard.
The People filed an action to enforce a consent decree entered into in 1998 between numerous States, including California, and numerous tobacco companies, including R.J. Reynolds Tobacco Company, which enjoined the companies from using any cartoon in their advertising. In 2006 Reynolds launched an advertising campaign called "Camel Farm' or "Camel Rocks" to promote Camel cigarettes to adult smokers who enjoy rock music on independent labels. In November 2007 Reynolds placed a four-page advertisement in Rolling Stone magazine, which contained photo collages of fanciful objects such as jet-powered flying tractors, radio helicopters and televisions on plant stems. The advertisement appeared adjacent to five pages of the magazine's editorial content, which included cartoons "under any definition of the term."
The trial court found that "a relatively small portion" of the advertisement violated the cartoon prohibition and that Reynolds was not responsible for the placement of the ad near the magazine's cartoons. The People sought attorney's fees pursuant to a provision in the decree that a State may recover attorney's fees if the manufacturer is found to be in violation. The court awarded fees, rejecting Reynold's argument that the consent decree was a contract and that §1717 applied. The court added that even if §1717 applied, the People were the prevailing party since they prevailed on the "significant issue" of whether Reynolds' advertising violated the cartoon ban.
This was error, said the appellate court, because a consent decree is a contract. In a stipulated judgment or a consent decree the parties voluntarily terminate a lawsuit by assenting to specific terms, and this is close enough to a contract to trigger §1717. The trial court also applied the incorrect legal standard in determining the prevailing party under §1717. Under this section, the issue is not whether the party prevailed on a significant issue, but whether the party recovered the greater relief in the action. Since the results in the case were mixed, the trial court needed to compare the relief awarded with the parties' demands and their litigation objectives, and the matter was remanded for reconsideration under the correct legal standard.
Monday, May 2, 2011
You're Wasting Your Time
The defendant in People v. Arevalo-Iraheta (Apr. 5, 2011, E050247), __ Cal.App.4th __ [2011 DJDAR 4890] was not prejudiced when the court denied his motion to dismiss for insufficiency of the evidence in the presence of the jury, said the Fourth District Court of Appeal.
At the close of the People's case, defense counsel asked, "If I could have a quick motion with the Court, 1118.1." Despite counsel's cryptic reference to the nature of motion, any juror confusion was immediately cleared up by the court: "You don't have to specify you're making a 1118.1 motion, which is a motion under the Penal Code to dismiss for insufficiency of the evidence." When counsel asked that the discussion not take place in front of the jury, the court said, "I'm saying this is what a motion consists [of], and based on the evidence I've heard I'm going to deny it. So you're wasting your time arguing it." When asked if he wanted to put an argument on the record, defense counsel replied, "Not in this forum, but thank you."
Although there is no authority that requires that a Penal Code §1118.1 motion be made and argued outside the presence of the jury, said the court, it noted that historically this is the case. This procedure has been followed because defense counsel's argument may reveal to the jury the defendant's theory, and the court should issue its ruling outside the presence of the jury, especially if it gives a statement of reasons. But in this case there was no prejudice, since the court "in no way conveyed the impression that it believed the People had proved beyond a reasonable doubt that defendant should be convicted of any or all of the charges."
The court also pointed out that when defense counsel expressed his concerns later in the trial about the court's disposition of the motion, counsel had said, "I probably was not going to argue it, but when it was done in open court, I knew at the time I could not argue it without the jury -- well, without the jury knowing what my argument is before the trial was over." From this the appellate court concluded that there was no prejudice because "defense counsel himself informed the court that he was probably not going to argue the motion," a position it regarded to be in accord with many such motions that are simply submitted without argument.
At the close of the People's case, defense counsel asked, "If I could have a quick motion with the Court, 1118.1." Despite counsel's cryptic reference to the nature of motion, any juror confusion was immediately cleared up by the court: "You don't have to specify you're making a 1118.1 motion, which is a motion under the Penal Code to dismiss for insufficiency of the evidence." When counsel asked that the discussion not take place in front of the jury, the court said, "I'm saying this is what a motion consists [of], and based on the evidence I've heard I'm going to deny it. So you're wasting your time arguing it." When asked if he wanted to put an argument on the record, defense counsel replied, "Not in this forum, but thank you."
Although there is no authority that requires that a Penal Code §1118.1 motion be made and argued outside the presence of the jury, said the court, it noted that historically this is the case. This procedure has been followed because defense counsel's argument may reveal to the jury the defendant's theory, and the court should issue its ruling outside the presence of the jury, especially if it gives a statement of reasons. But in this case there was no prejudice, since the court "in no way conveyed the impression that it believed the People had proved beyond a reasonable doubt that defendant should be convicted of any or all of the charges."
The court also pointed out that when defense counsel expressed his concerns later in the trial about the court's disposition of the motion, counsel had said, "I probably was not going to argue it, but when it was done in open court, I knew at the time I could not argue it without the jury -- well, without the jury knowing what my argument is before the trial was over." From this the appellate court concluded that there was no prejudice because "defense counsel himself informed the court that he was probably not going to argue the motion," a position it regarded to be in accord with many such motions that are simply submitted without argument.
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