A Mortgaged Career- The Reality For Young Lawyers

A Mortgaged Career.

The December 2014 issue of California Lawyer contains a sobering article for anyone thinking of going to law school.  The cost is excessive, the debt overwhelming, and the job prospects not nearly bright enough to warrant the expense.

I love what I do, but if I recently graduated from college, I cannot see how law school and the practice of law makes any sense.

Lawrence v. La Jolla Beach And Tennis

Click for Lawrence v. La Jolla Beach And Tennis.

A young child fell out of a second story window at a beachfront hotel, suffering serious injuries.  The parents sued.  The hotel moved for summary judgment, claiming that the parents’ negligence overrode any obligation on the part of the hotel and that the hotel had no duty to install a fall prevention device.

The trial court granted summary judgment to the hotel, from which the parents appealed.

The Court of Appeals reversed.  The parents’ negligence, if any, would impact the proportion of blame that the hotel might have, not whether the hotel had any duty to the injured child.

The issue of duty is a question of law suitable for summary judgment.  The factors to determine whether a duty exists, however, are more subtle than whether the window met the applicable building code.

In Lawrence, The parents requested a first floor room when they made their reservation, but only second room floors were available on check-in.  The window through which the child fell had a screen, but it was not sufficient to restrain the child.

The court recognized that a determination of “the scope of foreseeable perils to children must take into consideration the known propensity of children to intermeddle.”  The opinion reviewed cases falling on either side of the argument, concluding that a hotel operator does not guarantee the safety of the guests, but has a duty of ordinary care to make the premises reasonably safe for their expected use; and that  the hotel operator did not meet its burden to show that there was no duty, relying heavily on the presence of children.

Once the court concluded that a duty existed, it was a simple process to conclude that the myriad factual issues related to breach and causation warranted a reversal of summary judgment.

The duty analysis in the opinion was a challenge, since it confirmed that cases were split and that the involvement of children made it difficult to decide.  Hotel owners would probably prefer a clearer rule on when a duty does exist, rather than when it might.  This clarity, however, may not arrive unless the California Supreme Court has a chance to weigh in on this opinion.

Bingham may go bankrupt?

Bingham managing partner says firm is exploring options, including remote possibility of bankruptcy.

In an article in the ABA Journal, the managing partner of Bingham discusses the firm’s options for mergers and even the remote possibility of bankruptcy.

As a law student and a young attorney, I thought that working at the old McCutchen firm would have been a great fit for me.  Unfortunately, the McCutchen firm did not think that I would have been a great fit for me.

A quarter century later, I am a solvent attorney…

It is a bizarre business.

Foster v. Williams- The Notice To Quit Must Be Perfect

Click for Foster v. Williams opinion.

The tenant failed to pay rent.  The landlord issued a notice to pay rent or to quit.  The notice provided the payment procedure that the tenant had used for a year.  The procedure, however, was a website for electronic payments without any physical address.

The trial court in Santa Monica concluded that the website sufficed.  The Appellate Division of the Los Angeles Superior Court disagreed.  The statute required a person and an address.  Even though a website is an “address,” the requirement of a person to whom payment can be made implies a requirement of a physical address.  Without it, the notice is invalid and the landlord must start over.

If you are a landlord, then be careful.  If you are a tenant, then this case shows how a minor technical problem can delay an eviction.

A New State Budget and Another Tough Year Ahead for the Courts : Contra Costa Lawyer Online

A New State Budget and Another Tough Year Ahead for the Courts : Contra Costa Lawyer Online.

Stephen Nash, the Executive Officer of the Superior Court of Contra Costa County, provides a sobering look at court financing in Contra Costa County and throughout the state.  These funding shortfalls hit the civil side most dramatically since the criminal side must keep up to preserve constitutional rights of the accused.  As a result, civil justice becomes a hazy event far in the future.

Send a message to your State Senator or Assembly representative to  provide proper funding to our courts.  It is not just an attorney problem, it is a problem for all Californians.

When Is A Defect Patent?

Click for Delon Hampton v. Superior Court.

Delon Hampton provides a useful summary of latent and patent construction defects.  This is a critical analysis for construction litigation as a claimant has as many as ten years from the date of completion to sue for latent defects while only four for patent ones.

The case involved  a stairway at a train station that was too narrow with a handrail that was too low.  The court recognized that a defectively secured handrail was latent because the defect was not readily apparent.  Whether a stairway is narrow or a handrail too low is apparent, even if most people would not recognize the problem.

Builders and developers appreciate these statutes of repose as they provide some closure once four or ten years elapse from substantial completion.   The analysis, however, can often be subtle even when matters are right in front of your eyes.



Iskanian- The Evolution Of Arbitration Agreements In California

Click here for Iskanian opinion.

For the past several years, I have served as an update author of the CEB publication, California Real Property Remedies and Damages.  In past years, incorporating recent cases into the text was an easy way to provide a few hours of pro bono service and to keep abreast of an area of law near and dear to my practice.  Earlier this year, however, I had the giant task of incorporating the initial California fallout from the U.S. Supreme Court’s 2011 ruling in AT&T Mobility v. Concepcion. The case created tremendous tension between the California Supreme Court and its protection of consumers subject to unconscionable arbitration agreements and the United States Supreme Court, which interprets the Federal Arbitration Act (FAA) to require arbitration much more broadly than does California.

For example, in
Sonic-Calabasas A, Inc. v. Moreno (2013) 57 C4th 1109, the California Supreme Court overruled itself in light of Concepcion.  The California court previously held that an employer could not require an employee to agree to arbitration and to waive an administrative hearing to recover owed wages as a condition of employment. In Moreno, the California Supreme Court concluded that it could still enforce its own rules concerning unsconscionability provided that those rules do not interfere with the “fundamental attributes of arbitration.”   The California Supreme Court started down a path of acknowledging the preemptive nature of the FAA and the strong tide pulling in favor of even oppressive arbitration agreements.

Iskanian v. CLS Transportation Los Angeles
expanded the preemption of the FAA, affirming an arbitration agreement that banned employees from asserting a wage/hour claim as a class action. Iskanian followed Concepcion and overruled Gentry v. Superior Court (2007) 42 Cal.4th 443, which had permitted courts to disregard arbitration agreements that banned a class action if arbitration could not approximate the advantages of that class proceeding.

Justice Liu, however, left open a small door for California courts to hear matters otherwise subject to an arbitration agreement.   The California Private Attorneys General Act of 2004 (PAGA) found at California Labor Code, § 2698 et seq. provides a right to employees to step into the shoes of the state to seek civil penalties against an employer.  
Iskanian held that PAGA was a public action between an employer and the state, as opposed to a private action between an employer and employees, and that the FAA cannot intrude on the right of a state to litigate its claims in its courts.  

The breadth of FAA preemption continues to increase.  
Iskanian acknowledges this, but still takes enough of a stand to indicate that further action by the United States Supreme Court is not unimaginable.  


Contra Costa Court Budget Season 2014

Court Budget Season 2014 : Contra Costa Lawyer Online.

Judge Goode provides a snapshot of the current budget issues in Contra Costa County in Contra Costa Lawyer Online.  The last time I appeared to get a trial date, I needed to avoid a number of dates in Spring of 2014.  The judge was able to avoid any conflicts since the next available date for trial was April 2015.  The courts in this county are overwhelmed.  If the system needs to make more cuts, then they will disproportionately affect the civil side, making the concept of civil justice even more illusory.

Sanctions Should Punish Abuse, Not Be Abusive Themselves

Judge sanctions insurer $50K because its lawyer couldn’t settle dog-bite case for $750K.

The above article from abajournal.com should discourage all attorneys who represent insured defendants and insurance carriers.  If a carrier and counsel consult ahead of a settlement conference to set a valuation and to confirm an outer limit of settlement authority, then the court should not impose sanctions unless the evaluation or authority were unreasonable and showed a lack of a good faith intent to negotiate.

If an injured party has $75,000.00 of special damages, then $600,000.00 of settlement authority is certainly reasonable.  If the carrier limited authority to less than $100,000.00, for example, then the judge may have grounds to sanction the carrier, but this decision on sanctions indicates that the judge may have been more of an advocate for the injured plaintiff rather than a neutral settlement conference judge.

Sanctions should be a rare punishment for abuses of the judicial system and its processes, not to extract money from an insurance carrier that is offering eight times the special damages to settle a personal injury action.

Horiike v. Coldwell Banker- Dual Agents Are Fiduciaries Of All

In Horiike, two agents of the same broker represented the parties to a transaction.  As Professor Shaun Martin noted in his article (California Appellate Report: Horiike v. Coldwell Banker Cal. Ct. App. – April 9, 2014), it is hard to see how the trial court missed the fundamental rule of real estate agency by concluding that the agent of one side did not have duties to the other.   The court of appeal, however, figured it out.

A dual agency relationship requires all agents to treat all parties as fiduciaries.  This may mean that neither side gets a zealous advocate.  Since the commission stays the same in most real estate transactions regardless of the identity of the buyer’s agent, the parties might be better served if they each have independent representation.