On July 30, 2007, the State Bar Board of Governors adopted a new set of California Attorney Guidelines for Civility and Professionalism (pdf). As explained in the introduction, "These voluntary Guidelines foster a level of civility and professionalism that exceed the minimum requirements of the mandated Rules of Professional Conduct as the best practices of civility in the practice of law in California. .... Attorneys are encouraged to comply with both the spirit and letter of these guidelines, recognizing that complying with these guidelines does not in any way denigrate the attorney’s duty of zealous representation." (Via JD Bliss Blog.)
The blog will be on hiatus for the next two weeks, through approximately July 17th. Please continue to send me email about anything of relevance, including new UCL and class action decisions, proposals for co-counseling arrangements, etc.
Meanwhile, I hope you will all participate in The UCL Practitioner Reader Survey. The survey consists of nine questions and will take less than five minutes to complete. I'm hoping the results will tell me more about the blog's readership. Please click here to take the survey. Thanks for your help!
Many thanks to my good friend Laurent Liscia of Webmotion for designing an amazing new header for the blog! I also want to thank another good friend, Jack Gescheidt, for his great photography in front of the Supreme Court building.
I had the pleasure of meeting and shaking hands today with John Edwards, candidate for the Democratic Party's nomination for U.S. President, at a private reception at Levin, Simes, Kaiser & Gornick in San Francisco. He is a very articulate and compelling candidate, and I agreed with pretty much everything he said. As a die-hard Democrat (there, I've said it), I was impressed with him but remain intrigued by Hillary Clinton and Barack Obama. Thanks again to Jim Sturdevant for co-hosting and inviting me to the reception. Meeting someone like Edwards in person is always an interesting and memorable experience.
The blog will be on hiatus for the rest of the week. Please continue to email me with UCL or class action related developments or anything else of interest.
If you want to talk to me about working on a specific case, feel free to skip the email and call me at my office (415-433-2070). One of the things I do, which may not be widely known, is write specific motions (or opposition papers) and argue them in court on an hourly basis. I can associate into your case to do this. I also write and argue appellate-level briefs. And finally, my firm is always interested in exploring full-fledged co-counseling arrangements in contingency cases. If you're interested in working together on a case, give me a call.
Many readers of this blog may be members of the settlement class in the BAR/BRI antitrust case, Rodriguez v. West Publishing Corp. I received this email from class counsel:
In the past, we have had the opportunity to discuss the BAR/BRI litigation. I wanted to provide you a quick update, as many of the readers of your blog are likely class members.
On March 26, 2007, the United States District Court for the Central District of California preliminarily approved a proposed Settlement in this matter. The proposed Settlement provides monetary relief in the amount of $49 million dollars and non-monetary relief that will promote competition in the bar review market. This action arose from allegations that BAR/BRI violated the federal antitrust laws by agreeing with Kaplan, Inc. to prevent competition in the market for full-service bar review courses. The action represents a significant recovery of the damages suffered by the class. The certified class consists of all persons who purchased a full-service bar review course from BAR/BRI anywhere in the United States anytime from August 1, 1997 through July 31, 2006. Class members have until September 17, 2007 to submit their proof of claim.
At some point during the past week, the blog passed the 150,000 hits mark. That is amazing. I can remember back in the spring of 2004, I was counting daily hits on one hand (and most of them were me visiting the blog to make sure the new posts loaded correctly). But then a little thing called Proposition 64 happened. By January 2005, the blog's hits count had passed 10,000, and six months later, it passed 50,000. The rest, as they say, is history. I'm so glad that so many people find the blog and my insights interesting enough to keep coming back. Thank you for reading.
This will be my last post for 2006. Posting will resume during the first week of January 2007. Meanwhile, please continue to email me with UCL and class certification decisions, briefs, news, etc. Happy Holidays to everyone!
At long last, I've updated my list of appeals pending before the California Supreme Court that involve UCL and/or class certification issues. The list includes In re Tobacco and Pfizer, of course. In addition, four appeals involving UCL preemption and five appeals raising a variety of class action procedure issues are listed. Finally, there is one appeal of interest relating to the private attorney general doctrine for recovery of attorneys' fees.
I'm taking a week's vacation from blogging and plan to resume during the week of September 18th. Meanwhile, please continue to email me with new UCL-related opinions, orders, news developments, questions, ideas, etc.
I've added a search box to the blog. It will allow you to search the blog's content via Google. For example, you can find all references in the blog to Cel-Tech, or any other case. The search box is located in the sidebar to the right, just above the list of California law blogs, under the heading "Research."
Something truly significant happened last week: my trial date was continued. Now I can resume blogging much earlier than anticipated.
My latest addition to the blog is something that I've been meaning to create for some time for my own use. It is a list of the leading UCL and class certification cases in California, with links to the texts of the cases (via FindLaw). Let me know if you think of any cases that should be added, keeping in mind that the list is limited to California Supreme Court cases. Please send the full case name and citation, plus a link to the case on FindLaw. That will make it easy for me to add the case to the list.
Unless something truly significant happens, this will be my last post until some point in July. I'm headed to trial again. Please continue to email me about new decisions, etc., and I will catch up my posts once the trial is over.
Here is the new decision I mentioned during the afternoon session at yesterday's Bridgeport conference: Paulus v. Bob Lynch Ford, Inc., ___ Cal.App.4th ___ (May 17, 2006). In Paulus, the Sixth Appellate District rejected a claim for malicious prosecution of a UCL action. Its discussion of the UCL, and Prop. 64, is extensive, and the case is also noteworthy because the Sixth District has never before had occasion to mention Prop. 64. In Paulus, it does so in dicta. (Slip op. at 16-18 fns. 13, 14.) Nor am I aware of any other appellate decision involving malicious prosecution and the UCL. Given the court's language in Paulus, I think it would be very hard to successfully pursue such a malicious prosecution claim:
In evaluating the probable cause element in a malicious prosecution claim, we are mindful that we must render “a sensitive evaluation of legal principles and precedents” (Sheldon Appel, supra, 47 Cal.3d at p. 875), and we “must properly take into account the evolutionary potential of legal principles.” (Id. at p. 886.) Because of (1) the disfavored status of malicious prosecution claims, (2) the “rather lenient standard” of probable cause (Wilson, supra, 28 Cal.4th at p. 817), (3) the broad scope of the UCL, and (4) the UCL’s intended purpose of addressing, among other things, unfair conduct that “may run the gamut of human ingenuity and chicanery” (People ex rel. Mosk v. National Research Co. of Cal., supra, 201 Cal.App.2d at p. 772), we conclude that Paulus failed to make a prima facie showing that Lynch’s UCL claim (under either the “unlawful” or “unfair” prongs) lacked probable cause.
On Tuesday, in Fairfax v. Lords, ___ Cal.App.4th ___ (Apr. 18, 2006), the Court of Appeal (Fourth Appellate District, Division Three) held that the trial court has no discretion under Code of Civil Procedure section 2034 (now sections 2034.210 et seq.) to permit defendants to wait to designate their experts until after the plaintiff has designated hers. I have faced this argument myself, but fortunately I haven't seen a trial judge accept it. In Fairfax, the Court of Appeal made clear that the argument fails under the statute's plain language, which requires "simultaneous" designations of experts:
According to [defendant's] reasoning, “[s]ince plaintiff had the burden of proof on all issues presented here . . . it is simply prudent litigation defense practice to minimize the cost of litigation by allowing plaintiff to declare the issues he intends to retain experts for, and for the defense to then offer appropriate rebuttal experts. Some plaintiffs designate economists, accountants, accident reconstructionists, vocational rehabilitationists, physical therapists, pain management specialists and various types of physicians practicing in different areas. . . .  It would serve no purpose for the defendant to designate the myriad types of experts in the first designation, thereby driving up the cost of litigation, only to later find out plaintiff took a more simple approach to the case and thus certain defense experts were prepared in vain. It would also be poor litigation strategy for the defendant to declare one type of healthcare provider for an issue, and thus be foreclosed from designating another expert on the same topic, prior to knowing what type of expert plaintiff has chosen.”
There are two significant problems with [defendant's] reasoning. First, he seems to be assuming there is no way for defendant to determine what claims are at issue in a particular case until plaintiff reveals his expert witness list. That is simply untrue.
The complaint itself is a rich source for determining what claims are at issue. In the instant case, for example, the complaint specifies a claim for medical malpractice. That should put defendant’s mind at rest concerning the potential need for an “accident reconstructionist.” As for the other potential issues listed by [defendant], ordinary discovery is available to determine whether, for example, plaintiff is claiming lost wages, and if so, whether the calculation of such wages is subject to dispute; whether plaintiff is truly disabled from performing his (or other suitable) work; whether plaintiff has undergone physical therapy (or should have); and whether plaintiff has undergone (or might have been helped by) pain management. Reasonably competent defense counsel is not at risk of expending large amounts on issues like these because he cannot ascertain the nature of plaintiff’s claims.
The second, and more fundamental problem with [defendant's] argument is that it is simply inconsistent with the clear statutory requirement of a “simultaneous” exchange. Even if we agreed that defendants’ interests would be better served by a system which allowed them to designate experts only after seeing plaintiffs’ list (and it would be difficult to dispute the point), that is simply not an appropriate basis for ignoring the requirements of the statute. By [defendant's] reasoning, we could also agree that defendants might be well served by a system which relieved them of any obligation to even respond to a complaint until plaintiff had proved his prima facie case at trial. After all, if plaintiff doesn’t have the goods, why require a defendant to spend even a dime? But that is not the law, and it is not our place to conclude it should be.
Please take a look at my new list of UCL practice guides. The first guide listed is, of course, Will Stern's Bus. & Prof. C. §17200 Practice, published by The Rutter Group. I'm aware of two other practice guides, one published by Matthew Bender and the other published by the State Bar of California's Antitrust and Unfair Competition Law Section. I've also listed Competition, the journal of the Antitrust and Unfair Competition Law Section, which frequently publishes interesting articles about the UCL. If you know of any UCL practice guides that I haven't listed, please drop me a line.
My post below on the NASSCO case will be my last substantive post until after my trial starting on Feb. 6th is over. Meanwhile, please continue to email me with UCL-related opinions, briefs, orders, questions, etc. As always, thanks for reading the blog.
I'm still collecting responses to my impromptu, unscientific Prop. 64 poll from last week. I'm also still collecting amicus briefs in the Mervyn's and Branick cases. The ones that I have so far are listed here. As you can see, I have most (but not all) of the Mervyn's amicus briefs, and only one of the Branick briefs. I also need a copy of the Branick reply brief on the merits. If you have a copy of one of these briefs, please email it to me and I will put it up. As for the poll, I've received some interesting responses, which I will summarize in a future post, but there's got to be more trial-level activity going on out there. What Prop. 64 issues are being actively litigated now that retroactivity is marinating at the Supreme Court? Inquiring minds want to know.
Even though it's off the topic, I can't resist posting about Kaufman & Broad Communities, Inc. v. Performance Plasterin, Inc., ___ Cal.App.4th ___ (Oct. 3, 2005), decided on Monday by the Third District. That Court is apparently exasperated by the voluminous requests for judicial notice it receives of legislative history materials:
Many attorneys apparently believe that every scrap of paper that is generated in the legislative process constitutes the proper subject of judicial notice. They are aided in this view by some professional legislative intent services. Consequently, it is not uncommon for this court to receive motions for judicial notice of documents that are tendered to the court in a form resembling a telephone book. The various documents are not segregated and no attempt is made in a memorandum of points and authorities to justify each request for judicial notice. This must stop.
Slip op. at 2. The Court went on to provide a very useful list of the kinds of legislative history materials courts may judicially notice, and the kinds of materials they may not:
Welcome to The UCL Practitioner's new home! I will be gradually copying all of my old archives from 17200blog.blogspot.com to this site. I've already copied all of my posts for September. Eventually this site will contain everything from the former site, and more. I will continue to host large pdf files with orders, briefs, etc. at my other site, www.17200blog.com (which is hosted by my long-suffering friend Gary).
In just a few short weeks it will be two years since I started the blog, so I think a new, clean design and a new service provider (Typepad) is a good way to celebrate. As always, thanks for reading!
SCOTUSblog is live-blogging the hearings as we speak (or, I should say, type). That's something I'd love to be able to do for the Mervyn's and Branick arguments next year. However, the technical hurdles (not to mention the Court's rule against electronic devices in the courtroom) might make it impossible.
Through the grapevine, I received the following email, which originated from a law professor in the affected area:
I know your hearts, in particular, are for lawyers. Think of this...
5,000 - 6,000 lawyers (1/3 of the lawyers in Louisiana) have lost their offices, their libraries, their computers with all information thereon, their client files - possibly their clients, as one attorney who e-mailed me noted. As I mentioned before, they are scattered from Florida to Arizona and have nothing to return to. Their children's schools are gone and, optimistically, the school systems in 8 parishes/counties won't be re-opened until after December. They must re-locate their lives.
Our state supreme court is under some water - with all appellate files and evidence folders/boxes along with it. The 5th Circuit Court of Appeals building is under some water - with the same effect. Right now there may only be 3-4 feet of standing water but, if you think about it, most files are kept in the basements or lower floors of courthouses. What effect will that have on the lives of citizens and lawyers throughout this state and this area of the country? And on the law?