In Bridgepoint Construction Services, Inc. v. Newton et al. (Second Appellate District, Div. 6, 9/4/18), Robert G. Klein filed an action on behalf of Bridgepoint and Salter, one of Bridgepoint’s two shareholders in Santa Barbara County. Thereafter, the defendant cross-complained against Bridgepoint, Salter, and Ram, Salter’s business associate. In December, 2014, Robert G. Klein represented all 3 of these parties. In January, 2017, Newton, a Defendant, and the other shareholder in Bridgepoint successfully moved to disqualify Robert G. Klein from representing Salter, and Bridgepoint because Bridgepoint and Salter have conflict over indemnity claims. Undeterred, in February, 2017, Robert G. Klein filed a cross-complaint against Newton, et al. for Ram. In Arizona, Robert G. Klein continued to represent Salter, and Bridgepoint in a federal action. Thereafter, Bridgepoint successfully moved to disqualify Robert G. Klein from representing Ram. The trial court did so because Robert G. Klein represents Bridgepoint in an Arizona action while in the California action Bridgepoint and Ram both seek to recover damages from the same pool of money. The court of appeal agreed with the trial court, and found that Robert G. Klein’s representation of Bridgepoint, and Ram simultaneously, albeit in different actions, required automatic disqualification. Further, the representation of Ram against Bridgepoint, a former client in the California action, required disqualification where there was a substantial relationship between the subject matter, and the attorney obtains confidential information. Here, Robert G. Klein obtained confidential information when he had access to Bridgepoint’s expert in review of its financial records. In the Court of Appeal, Robert G. Klein unsuccessfully argued that there is no conflict of interest because his clients and former clients all sue the same people. The Court of Appeal found that unpersuasive because of Robert G. Klein’s clients sought recovery from the same finite pool of money. Robert G. Klein argued that disqualification deprived Ram of the counsel of his choosing but the Court of Appeal noted that occurs in nearly every instance of disqualification. Next, Robert G. Klein argued that the conflict of interest was hypothetical but the Court of Appeal disagreed given that all of the parties in question sought relief from the same funds. Robert G. Klein also unpersuasively asserted that Bridgepoint’s cross-complaint was a sham which the Court of Appeal declined to do on appeal.
In Holzhauer v. Rhoades (2018 9th Cir.) 2018 WL 3795779, the Ninth Circuit Court of Appeals held that a boat owner who is a passenger on his boat has no duty to keep a lookout unless the owner-passenger knows that the person operating his boat is likely to be inattentive or careless or the owner-passenger was jointly operating the boat at the time of the accident. The joint operation is not viewed over the course of the entire trip, but instead at the time immediately preceding and concurrent with the accident.
In Shine v. Williams-Sonoma, Inc. (2018) 23 Cal.App.5th 1070, the Los Angeles County Superior Court sustained a demurrer to the plaintiff’s wage and hour complaint on res judicata grounds because his claim could have been raised in a prior wage and hour class action that was settled. The Court of Appeal affirmed, and held that the release in the prior action was broad enough to encompass the claims asserted in Shine’s action.
In Russell Road Food & Beverage v. Spencer 829 F.3d 1152 (9th Cir. 2016) , the Ninth Circuit Court of Appeals held that trademark co-existence agreements are enforceable and assignable unless the contract provides otherwise. The court noted that it did not consider the appellants argument that the trademark co-existence agreement is an executory contract that cannot be assigned without the consent of both parties, or that the assignee breached the co-existence agreement because it failed to raise those issues below.
In Young v. Remx, Inc. (2016) 2 Cal.App.5th 630, 633, a putative wage and hour class action lawsuit, plaintiff unsuccessfully appealed from the trial court’s order compelling arbitration of her individual claims, dismissing her class claims, bifurcating her representative claim pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.), and staying the PAGA claim pending completion of the arbitration on her individual claims. The First District held that the death knell doctrine did not apply because the PAGA claim remained.
In Tikosky v. Yehuda (2018) 19 Cal.App.5th 1224 , the judgment creditor obtained an order to sell one of the debtor’s properties. The senior lienholder paid the amount of the judgment lien, and the debtor moved to compel an acknowledgment of partial satisfaction. The trial court denied the motion,and the court of appeal affirmed because the payment was not made on the judgment but for the judgment creditor refraining to sell the property.
April 21, 2016 – The Court of Appeal for the Second Appellate District has held that 529 Savings Accounts established under Internal Revenue Code Section 529 (26 U.S.C. 529) are not exempt from levy under the Enforcement of Judgments Law.