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Posts Tagged ‘California’

Statute of Limitations Tolled in California Amid Pandemic

Posted on: August 3rd, 2020

By: Matthew Jones

In response to the COVID-19 pandemic, California’s Governor Gavin Newsom issued a “state of emergency” for the entire State. In response, the California Judicial Council adopted several Emergency Rules to implement during the pandemic. In particular, Rule 9 states that all statute of limitations for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted by the Governor. Therefore, if a party’s claim would have expired pursuant to the applicable statute of limitations during this timeframe, such claims are still very much alive. In regard to those claims, there is currently no deadline to file them since the “state of emergency” has yet to be lifted by the Governor. Once lifted, claimants will have six months to file their respective claims.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Seeing is Believing: Effective use of Animations in and out of the Courtroom

Posted on: July 20th, 2020

By: Paul Bigley

In California, we are blessed with a California Supreme Court case by the name of People vs. Duenas (2012) 55 Cal. 4th 1. The Duenas court addressed the use of animations in trial. The court drew a distinction between simulations and animations, equating animations to traditional demonstrative evidence such as charts or diagrams. Animations are not held to the traditional scientific Daubert challenges as to admissibility. 

The following are actual quotes from the Duenas opinion: “ Animation is merely used to illustrate an expert‘s testimony while simulations contain scientific or physical principles requiring validation…. Animations do not draw conclusions; they attempt to re-create a scene or process, thus they are treated like demonstrative aids… In other words, a computer animation is demonstrative evidence offered to help a jury understand expert testimony or other substantive evidence.“

The formula for considering whether or not an animation should be prepared in a case is simple: Potential Large Exposure + Liability defenses = Need To Consider Animation. 

If the decision is made to use an animation, it should be prepared early, for use at mediation and trial, if necessary, to maximize benefit. Studies show that people retain far more information from seeing something as opposed to hearing or being told about something. The impact of an animation is enormous and once seen and appreciated by opposing counsel, it often has the effect of greatly deflating their expectations and driving a very favorable settlement. After all, opposing counsel now knows that they need to make an investment in one of their own at great cost and expense while facing the very real prospect of obtaining nothing from a jury if the jury accepts, as credible, what they see in the animation.

Admitting an animation into evidence is easy. I ask just a few questions of an appropriate expert, usually an accident reconstructionist or a human factors expert: Have you reviewed the animation we prepared? Does the animation generally support your opinions? As you might imagine, the answers to those questions are always yes. 

Because simulations, which are intended to exactly replicate a scene or event, are often challenged and never end up seeing the light of a court room, animations are my preferred choice. At FMG, we actually prepare these animations in-house with the assistance of our litigation support manager who has a degree in game design and animation. While not inexpensive, we prepare them at a fraction of the cost from outside vendors. 

If you are not making use of this tool, you are missing out on a cutting edge opportunity. That said, we know that states other than California may treat animations differently. You should explore whether your state follows California’s Duenas court decision.

If you have questions or would like more information, please contact Paul Bigley at [email protected].

You can view examples of FMG’s animation capabilities below:

Attorneys, Beware Of The “Settle & Sue” Maneuver!

Posted on: July 6th, 2020

By: Elizabeth Lowery

Malpractice lawsuits against attorneys are often referred to as a “case within a case” because they must delve deep into the underlying lawsuit in order to determine whether an attorney’s representation fell below the standard of care, and if so, what damages, if any, resulted. There is a common misconception that an attorney is always insulated from a malpractice action if the client consents to a settlement. However, many jurisdictions, including California, permit a client to “settle and sue.”

Last month in Maselllis v. Law Office of Leslie F. Jenson, California’s Appellate Court upheld a lower court’s $300,000 judgment against a divorce attorney whose client, the Wife, consented to a $1.2 million settlement. In that case the value of marital estate, which included several businesses, was hotly contested. In addition, Wife was suspicious that Husband had been hiding assets. A few days before the trial, Wife’s attorney pressured Wife to accept an $800,000 settlement; when she refused, Attorney said “I’m done,” and left. Panicked and without counsel, Wife accepted Husband’s last minute $1.2 million offer. She then sued Attorney for malpractice. 

During the 11-day malpractice trial, one report from Wife’s expert valued her half of the marital estate at $1.62 million, and another at $1.49 million. Wife prevailed and obtained a $300,000 judgment against Attorney. During the appeal, Attorney did not directly challenge the jury’s finding that her representation of Wife was negligent. Instead, Attorney argued that the standard of proof for “settle and sue” cases was, or should be, higher than the “preponderance of the evidence” burden of proof typical applied in attorney malpractice lawsuits, and that Wife hadn’t satisfied this higher standard. Wife’s counsel argued that Wife did not need to show that Husband was going to reach a settlement higher than $1.2 million; it was sufficient to show that it was “more likely than not” that she would have received a better result at trial. The Appellate Court confirmed that the lower burden of proof, i.e. the preponderance /”more likely than not” standard was correctly applied in the underlying trial, and that Wife had satisfied this burden. As a result, Wife’s victory was upheld. 

The foregoing illustrates that attorney malpractice lawsuits present special challenges, especially in jurisdictions which allow a client to “settle and sue.”  If you have any questions or would like more information, please contact Elizabeth Lowery at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at

When Laws Conflict: What Ethics Rule Applies to a California Lawyer Advising On Cannabis?

Posted on: June 30th, 2020

By: Greg Fayard

It goes without saying that a lawyer—from California or elsewhere—shall not counsel a client to do something illegal.

But what about a state law that conflicts with a federal law? For example, federal laws that criminalize the use of marijuana and state laws that don’t criminalize marijuana–how should the lawyer advise a client when laws conflict regarding a subject matter?

Under California’s Rules of Professional Conduct applicable to lawyers, a lawyer can assist a client in complying with California law, but must inform the client when California law conflicts with federal (or Tribal law). The lawyer then needs to discuss the consequences of complying with a California law that runs afoul with another law.

For those lawyers that work in the area of Cannabis law, Rule 1.2.1 is the Rule to follow in California.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at

The Right to Recover Costs

Posted on: June 24th, 2020

By: Dhave Balatero

In California, the right to recover costs is entirely a creature of statute (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 989) and Cal. Code. Civ. Pro. section 1032 is “the fundamental authority for awarding costs in civil actions.” (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.  

The statute states: 

  1. “Complaint” includes a cross-complaint;
  2. “Defendant” includes a cross-defendant, a person against whom a complaint is filed, or a party who files an answer in intervention;
  3. “Plaintiff” includes a cross-complainant or a party who files a complaint in intervention
  4. “Prevailing party” includes a party with a net monetary recovery, a defendant in whose favor is a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who does not recover any relief against that defendant […] Cal. Code. Civ. Proc. section 1032. 

Since the Legislature has not distinguished between types of dismissals in the statute, [the Court] will not read such a restriction into it. “[O]ne should not read into the statute allowing costs a restriction which has not been placed there. ‘In general, a court should not look beyond the plain meaning of a statute when the language is clear and unambiguous, and there is no uncertainty or doubt as to the legislative intent.’” (Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890 quoting Teachers Management & Inv. Corp. v. City of Santa Cruz (1976) 64 Cal.App.3d 438, 446.

Therefore, a defendant including a cross-defendant, in whose favor a voluntary dismissal has been entered is a prevailing party for cost recovery purposes. (Cal. Code. Civ. Proc. Section 1032; Brown v. Desert Christian Center (2011) 193 Cal. App. 4th 733, 737-738.). 

Consider the following scenario: Plaintiff names two defendants in its initial complaint. Based on the facts and allegations in the complaint, Defendant A files a cross-complaint for indemnity and contribution against Defendant B. Defendant A/cross-complainant does not conduct any significant discovery in relation to its cross-complaint. Before trial, Defendant A reaches a settlement agreement with Plaintiff.  Defendant A’s settlement is deemed a good faith settlement with the Court pursuant to Cal. Code. Civ. Proc section 877.6 and Plaintiff dismisses Defendant A from the suit. Accordingly, Defendant A dismisses its cross-complaint against Defendant B.

Is Defendant B entitled to seek his/her litigation costs from Defendant A? Yes! Even if the costs are not limited to the defense of the cross-complaint? Yes! It may seem unfair, but as mentioned above, the court will not look beyond the plain meaning of the statute and create restrictions. More and more cross-defendants are seeking cost from cross-complainants and attorneys should be mindful of this growing trend in their litigation plan.

If you have questions or would like more information, please contact Dhave Balatero at [email protected].