Attorney’s Fees as Damages for Breach of Contract? A Jury Must Decide

by Lukas Clary
The Litigation Law Blog

Often times, contracts contain attorney’s fee provisions.  These terms allow the prevailing party in any action to enforce the contract to recover its attorney’s fees.  Under California Code of Civil Procedure section 1717, the prevailing party on these contract actions can simply file a motion and have the court award the fees as costs of suit.  But what happens when a party sues for breach of the contract and the only element of damages the party claims are the attorney’s fees it incurred as a result of the defendant’s breach? 

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First District Court of Appeal strikes small, but meaningful, victory for businesses combatting online libel.

by Josiah M. Prendergast
The Litigation Law Blog

Just last week, California’s First District Court of Appeal handed a small, but meaningful, victory to businesses that resort to litigation to defend their reputations against anonymous, online attacks.  In ZL Technologies, Inc. v. Does, the First District held that ZL Technologies (“ZL”) was entitled to discover the identities of persons who posted anonymous reviews of ZL on Glassdoor.com, after ZL made a prima facie showing that its libel c were factually and legally valid. 

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Personal Jurisdiction Update in Supreme Court’s Bristol-Myers Squibb Co. v. Superior Court

The Litigation Law Blog

By Darrell P. White

Several weeks ago, the U.S. Supreme Court issued its opinion in Bristol-Myers Squibb Co. v. Superior Court of Cal., No. 16-466, 581 U.S. —, 2017 WL 2621322 (June 19, 2017) (“Bristol-Myers Squibb”). The more than 600 plaintiffs seeking redress for alleged harm suffered from using a pharmaceutical drug, presented the Supreme Court with the following question: could a California state court exercise personal jurisdiction over nonresident plaintiffs joining California plaintiffs?

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AN INADEQUATE PRIVILEGE LOG, OR EVEN THE FAILURE TO SERVE A PRIVILEGE LOG, WILL NOT RESULT IN THE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE OR WORK PRODUCT PROTECTION TIMELY ASSERTED IN DISCOVERY RESPONSES

The Litigation Law Blog

In Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, the California Court of Appeal (Fourth District, Division Three), squarely addressed the question: “May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections?” The answer, “No.” Id.

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USING DEMONSTRATIVES TO EFFECTIVELY COMMUNICATE COMPLEX BUSINESS CASES TO A JURY

The Litigation Law Blog

Business attorneys understand that complex business litigation involves complex issues, usually encompassing voluminous amounts of complicated financial data in the form of balance sheets, income statements, and cash flow summaries.  It is certainly possible for jurors who own their own businesses or have accounting backgrounds to quickly synthesize financial information. However, most jurors are unfamiliar with this type of financial information and will find it difficult to comprehend, at best.  A juror who is not able to understand the story that the financial data tells will be a less likely ally to your client’s position in the jury room. 

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Arbitration Agreements Cannot Foreclose a Party’s Right to Seek Public Injunctive Relief under California’s Consumer Protection Laws

by Lukas Clary
The Litigation Law Blog

The California Supreme Court has struck back in its ongoing battle with the United States Supreme Court as to the enforceability of arbitration agreements in consumer contracts.  On April 7, 2017, in McGill v. Citibank, the California Supreme Court held that a contractual waiver of the right to seek public injunctive relief—i.e., relief that serves primarily to benefit the public at large rather than redress private wrongs—is contrary to public policy and thus unenforceable under California law. 

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Non-Compete Provisions and Forum Non Conveniens Considerations

by James Kachmar
The Litigation Law Blog

Under California law, non-complete provisions are generally unenforceable.  But what happens when the non-compete provision appears in an employment contract that is governed by another state’s law with a forum selection clause limiting any dispute to that particular state?  All California courts in the past have refused to enforce a choice of law provision (absent a forum selection clause) that requires a California court to apply the law of a state that may be more favorable to non-competes on grounds that it violates California’s public policy concerning such restrictions. 

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California Supreme Court adds to line of cases narrowly applying the right to recover attorneys’ fees under Civil Code section 1717.

by Josiah M. Prendergast
The Litigation Law Blog

Despite increasing sophistication amongst contracting parties and evermore common use of attorney fee clauses, the “American Rule” endures.  The American Rule is that each side pays its own attorney fees in litigation, win or lose.  In California, statutory exceptions to the American Rule are limited, leaving private parties to modify the American Rule, if they so desire, through contract.  For those contracting parties, the recent California Supreme Court decision in DisputeSuite.com, LLC v. Scoreinc.com,

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Government Employees Can’t Hide Behind Their Private Email Accounts: California Supreme Court Expands Public Records Definition to Include Emails Sent on Private Email Accounts

by Jessica R. Corpuz
The Litigation Law Blog

The use of private email servers and communications devices by government officials was a major issue in the 2016 election, from the investigation of Hillary Clinton’s email practices to the hacking of a private email account Mike Pence used for official Indiana state business.  The California Supreme Court has recently entered the fray, holding that government officials must search their private email accounts in connection with public records act requests.

The California Supreme Court held in City of San Jose v.

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Reassessing Contractual Jury Waivers Under Rincon EV Realty LLC v. CP III Rincon Towers, Inc.

The Litigation Law Blog

By Darrell P. White

Orange County is a hotbed for development and real estate. Lenders work hand-in-hand with real estate professional to make these deals happen. When using out-of-state financing, contractual jury waivers are commonplace. Under such terms, the parties essentially agree that any dispute will not be tried to a jury, but instead, the court (i.e. “bench” trial).  However, a recent decision from the California Court of Appeal may have far reaching implications regarding the enforceability of jury waiver provisions in California courts.

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