There are 2033 Journal Items on 255 page(s) and you are on page number 56
Quote of the Day - It makes a discussion of winners and losers hard. The fact is, not everyone will get tax cuts, because someone has to pay it back. - Leonard Berman
Employee Can't Recover Attorneys Fees In Employment Dispute For Tort Claims
In England, life for litigants is a bit tough: the loser pays the winner's attorneys fees. In contrast, here across the big pond, we split the baby: if you sue based on a contract that contains an attorneys fees provision, then the loser pays, just like in England. Where we part company, however, is in tort claims - those claims based not on contracts, but instead on a civil wrong or breach of duty to another person.
So what happens when someone sues you for both? Well, it depends on a lot of things. Typically you don't get both tort and contract relief in a judgment, but there are some circumstances where it can happen. Check your local listings for more information.
Here in California, an employee can do just that - win or lose on both tort and contract claims. When the employee sues the employer on a breach of contract claim, the employee will end up paying the employer's attorneys fees and costs when the employer wins. The opposite is equally true.
But a recent case, Casella v. SouthWest Dealer Services, Inc., gave us the answer to the question posed above. Zachary Casella sued his former employer, SouthWest Dealer Services Inc., for wrongful termination, fraud, and fraudulent inducement of employment. SouthWest filed a cross-complaint against Casella for breach of employment agreement.
Now here's where it gets a bit tricky. Take a look again at Casella's claims. They're all based in tort. He didn't sue for breach of contract. His employer, however, did. So now we get to add one more consideration into the mix.
Under California Civil Code section 1717, once one party invokes a contract claim for attorney fees in a lawsuit, the loser pays - virtually no matter what (absent some other considerations not in play in this case).
But hold on a minute here, I can hear you saying. Didn't I say before that where there are tort claims alleged there are no attorneys fees paid at the end of the suit?
Yes, I said that, and it's still true. Don't you just love the conundrums the law presents?
That conundrum was exactly the problem that led to the appeal between Casella and Southwest. Before the appeal, however, let's go over what happened. Casella won on his Complaint. He got $480,000 in tort damages against Southwest for wrongful termination and fraud, both torts. He also defeated Southwest's breach of contract claim in the company's Cross-complaint.
So the trial judge did what I pointed out above. The judge didn't award any attorneys fees or costs to Casella for winning the tort claims, but parceled out his fees and costs attributable to successfully defending the contract claim, and awarded those attorney fees and cost to him. The judge gave him $12,500 - nowhere near the attorneys fees and costs he actually incurred in the entire lawsuit, but those that related to the contract claim.
So even though the headline made it appear the business won, it essentially lost.
Apart from this scenario allocating attorneys fees between the parties, if you've ever wondered about how car dealerships sell cars and the markups, profit margins and the "leg" or "payment packing" techniques, then the beginning of this opinion is a tell-all that may change your next car-buying experience. The opinion's Introduction and Summary of Facts are all you need to read to gain an understanding, and they're a quick read at that.
Law Enforcement Tracks Down Arsonists
Regular readers know the recent California wildfires came within a block or so of my house, just across the street from the Santiago Fire, which burned nearly 30,000 acres. Arson caused the fire, according to fire investigators. No one died in the fire, but 15 homes were burned.
Our firefighters did a great job.
So when the Los Angeles County Sheriff obtained warrants for the arrest of five men who allegedly started the Malibu fire, it was good news. Fourteen people died in that fire. The men, who had a campfire, will be charged with felonies.
Let's just hope they catch the arsonists in Orange County, too.
Who's Face Is On The Side Of That
Milk Carton Billboard?
I keep up with the digital world perhaps a bit more than most of my contemporaries, but in my day, milk cartons were the preferred way of finding people who were lost. They were mostly lost kids, but every once in a while, a creative milk company would broadcast some of the FBI's top ten wanted list.
Now, the "Most Wanted" are on digital billboards.
They work much better than milk cartons. Last month, Oscar Finch was allegedly caught on tape robbing a bank. Mobile, Alabama police uploaded his mug to 12 digital billboards across the city.
Viola' - a day later, Oscar turned himself into authorities.
His fifteen minutes of fame were up. Immediately after he turned himself in, the ads came down.
Boston Legal Syndrome Creeps Into The Courtroom
I go to court a lot - for a civil lawyer. In fact, so far this week, I've been in one court or another every day, if not twice a day. That schedule is de rigeur for a criminal hack, but unusual for a member of the civil bar. There are those lawyers, probably the great majority, who would fit the definition of what I some times slanderously (and now libelously) refer to as "paper tigers." You know - the lawyer who pushes paper between lawyers and in and out of court.
In other words, the kind of lawyer who doesn't try cases.
But not the now infamous Alan Shore. Here's a lawyer (at least he plays one on TV) who gets to tell the judge off. Here's an excerpt:
ALAN SHORE: My point: We're not getting services at home. The people in New Orleans didn't after Katrina, my client didn't here. And by the way, I don't think I'm that much of a complainer given all there is to complain about: education, Social Security, inflation, unemployment, health care, homeland security, the war, the fact that Osama and Britney keep pumping out new videos, there's global warming. Nothing, nothing is going right, judge, and you simply cannot put a positive spin on it no matter how many times you say "General Petraeus."
JUDGE: Thirty seconds from a jail cell.
SHORE: This war has cost us $450 billion dollars and still counting. Add to that the Afghanistan invasion, it goes up to $650 billion. Add all the indirect costs, it goes up to two trillion.
JUDGE: Twenty seconds!
SHORE: Let's just consider what the $450 billion dollars we spent on Iraq could buy us. How about free health insurance for every uninsured family, $124 billion. Convert every single car to run on ethanol, $68 billion. Primary education for every child on the planet -- all of them -- $30 billion. Hey, end hunger in America, $7 billion.
JUDGE: You are not an accountant!
SHORE: No, I'm a town crier, judge. We have to talk about the cost of this war in terms of human lives. It's in the thousands. And by that I mean American soldiers since the Pentagon doesn't seem to count Iraqis, but that's a small point. The actual cost is much, much more.
JUDGE: Suing our government, suing a branch of our military in a time of war cannot help but add to it. No, your case against the National Guard is dismissed...
One of the rareities where Shore loses, but nonetheless, his interaction with the judge is high drama on TV on Tuesday nights. For a lawyer, Boston Legal is absolutely hilarious, and one of my favorite shows. In the words of my partner, "it's funny because it's not real. After all, why would I want to go home and watch on TV what I do all day long?" And he's exactly right. It's funny because it's not real, and it pokes fun a just about everything connected with our legal system and takes some fairly left-handed swings at the political establishment too. Humorous, indeed.
But I'm starting to see something I don't like. Not on TV, but in real life. I've dubbed it the "Boston Legal Syndrome." You've heard of the "CSI Syndrome," right? That's the one where jurors have come to expect exacting science from the crime lab. DNA in every case, high science partial fingerprint matching, a single bone fragment that explains the whole case and puts the murderer away for life, last-minute evidence rushed into the courtroom that proves it was the guy no one expected. Twists and turns abound.
Amuse us, jurors say. Entertain us. Put on a TV show. We see it in our living rooms, now we want it in real life.
Now, Boston Legal is creeping into the relationships between judges and lawyers.
Some lawyers have watched too much Boston Legal. Some judges, too. The Duke Lacrosse debacle, Phil Spector's lawyer taking a time out from trial to film a TV show (while the trial continued in his absence) and a host of other unbelievable missteps.
But most troubling of is the start of a pattern where young lawyers believe they have the right to talk to a judge like a gang-banger on a street corner. I've seen misguided attempts by inexperienced lawyers to mimic what they see on TV; a dangerous stunt that cost one youngster the opportunity to report his behavior to the state bar. Lawyers who aren't in court on a regular basis seem more willing to insult the judge: "with all due respect your honor" - tantamount to insulting the judge with several four-letter words, all of which would have had your grandmother washing your mouth out with soap.
But this decline in professionalism and the public's belief this behavior was acceptable was perhaps most aptly demonstrated by a comment (no, a screaming match) between a lawyer and his client in the hallway, outside a trial courtroom during a break. Although I tried not to listen, it was impossible not to hear bits and pieces. "I want you to attack the judge. Just like Alan Shore!"
"Show that judge who's boss in there. You said you were a pit bull! Go win my case," whereupon the apparently agreeable and charged-up lawyer headed back into the courtroom to give the judge a talking-to.
It's not my place to counsel that client or that lawyer, but real-live courtrooms aren't a TV sound stage. It's not scripted in there. They don't play a musical, theme-songed background as your lawyer gives a closing argument. Cases don't start and finish within one hour.
This is real life. For the most part, lawyers and judges treat one another with respect. Sure, there's a bit of advocacy in every argument and it is acceptable to push a judge to see your side of the case. But respectfully and with dignity.
So when you see your lawyer in court, expect to see a civil, intellectual conversation between the judge and your lawyer. If you don't, then you've got one of two choices: change your perspective, or change your lawyer.
Insulting a judge, yelling at a judge and other bad behavior between your lawyer and the bench will put you on the wrong side of the case and make it hard to win. Most lawyers aren't willing to ruin his or her reputation with the judges on the bench - something that's going to continue long after your case is down in the record books - for just one client.
And as a litigant, you don't want that type of behavior to influence your court case.
If you feel you need that kind of drama in your life, turn on the TV. But keep it out of the courtroom.
Where Have All The Wild Salmon Gone?
Some people have stopped eating farm-raised salmon in part because the fish may be fed with colorant-added food, deemed by certain groups to cause cancer, among other problems. Now, there may be another reason, according to a recent study.
Sea lice naturally attach to adult salmon but generally don't harm them are starting to attack juvenile wild salmon that don't react so well to the lice. The effects are supposedly driving the wild salmon into extinction. No worries for this Iowa boy, however. I like corn-fed steak and pork, as well as all salad fixin's.
Yo Ho, Yo Ho, A Pirate's Life For Me
When you learn to cuss like a sailor, it helps to be a sailor. Despite the two prior Pirates of the Caribbean movies and the third now out on DVD, there's little about cussing that you can learn from the movie except some very well-written - ahh - curses. Take, for example, Captain Jack Sparrow's prelude to taking Will Turner into custody: "Send this pestilent, traitorous, cow-hearted, yeasty codpiece to the brig."
Ouch. No doubt what's intended there.
So when we get a news story about 33 year-old Dawn Herb cussing out her toilet, something just gets lost in the translation. The AP reporter compares the Scranton, Pennsylvania woman's blue-streak over her frustration with an overflowing toilet with the vocabulary of a longshoreman. But having been a sailor myself, it just doesn't quite measure up.
Even before we had longshoreman, we had pirates and their language. In fact, "I'd like to meet that filthy, mangy, worthless bilge rat Hector Barbossa to recover my beautiful ship, The Black Pearl," in another tribute to an antagonist in an earlier version of the story. Did I get all those "an's" right?
Apparently as our present-day, wanna-be pirate heroine got upset over her predicament with her toilet, a policeman's daughter walked by her window and heard the cussing. She reported it to her then off-duty Dad, who promptly called in reinforcements to issue her a citation under Pennsylvania's statute preventing "disorderly conduct for using obscene language or gestures in a way that causes "public inconvenience, annoyance or alarm," according to reporter Michael Rubinkam.
The ACLU has stepped in to defend her right to free speech and cuss a blue streak, and whether she'll be convicted now rests in the hands of a judge who's considering the arguments of counsel and words of the woman. Not surprisingly, her lawyer advised her not to talk to the media. No telling what she would have said to the journeyman reporter.
Oh yes. One more thing. Did I mention Pennsylvania's landlocked?
Where did she learn this stuff?
Not from this pirate.
Hot Off The Digital Press
Newspapers are taking it in the shorts. Labor costs and dwindling readership are two main culprits affecting the bottom line. Readership is shifting to cell phones and computers, away from paper. I've sold my newspaper stock long ago.
Not even the book is sacred anymore. Amazon.com is selling the Kindle, a take-it-with-you book.
Maybe the newspapers ought to release an electronic version for their reporting, and eliminate the paper.
Oh right, they already do that.
Maybe they ought to start blogging instead of producing a paper product.
Oh right, they already do that.
Maybe they ought to catch up with the times. No, not THE Times, but the electronic times.
Advertisers on the Internet stay around a lot longer than my newspaper does.
Oh right. I don't get a newspaper delivered anymore.
But I do have several computers.
Update Friday, December 14, 2007. The Chicago Sun-Times reports it will issue layoff pink slips in 2008 to cut its budget by $50 million.
Another Class Action; Another Useless Feature?
For years I've been bellyaching for an all-in-one phone device that gets and sends email and text messages, surfs the web, runs like a small computer, handles maps, allows me to dictate, take notes, keeps my calendar and contacts all in one place, works no matter what country I'm in and surprisingly enough, in my house (something my current Verizon cell phone doesn't do), allows me to read books, listen to books-on-tape, plays my music and movies and, oh yes, make calls with a speakerphone.
I'm not asking for too much, am I?
So far, even the iPhone doesn't handle all those requirements well, although it comes close. I'm just too clumsy with my fingers (can hardly type), and it doesn't boot into Windows. It's already difficult enough learning all the programs we have at the firm. Not to mention learning an entirely different operating system, which by way of the long-cut short-cut roundabout the barn brings me to two points.
First, if you're running Windows and are thinking about switching to Vista, I have just one question and one piece of advice. Why learn another operating system? And don't.
XP works just fine, and as proof, just about everything else in our firm and at my home works well with it. After all, it took us just five years to get all the bugs worked out, all the programs synchronizing with each other, and we still have some glitches. So why switch to something that has more glitches? Like I said, don't.
Second, while my list of requirements for a cellular phone is shorter than many, the GPS feature on my phone is a treat. It works fairly well with Microsoft Pocket Streets and hopefully soon with the SigAlert system, which shows traffic jams. Even Google can't match the SigAlert system, which is still in the process of being perfected.
Google's traffic feature doesn't work on cell phones. Which is great if you're driving your car around your home or office desktop or can take your computer and monitor with you on the road. I still haven't hooked up my Tablet in my car, but I'm getting close. The SigAlert traffic system is accessible on a cell phone, but unfortunately it doesn't have a zoom feature. Yet.
They tell me they're working on it. As it stands now, however, it's a real problem. While the SigAlert map is easy enough to see on a desktop monitor, imagine taking that same map and shrinking it down to fit on a cell phone screen. At that very small size, every time I look at it I don't want to go anywhere because everything in LA looks jammed.
Recently, I read that a Blackberry owner in San Diego filed a class action against Verizon because the company allegedly advertised Blackberry phones with GPS, then surreptitiously turned the GPS feature off and would reactivate it only if you purchased Verizon's fee-based GPS service.
While you may be surprised, why anyone would want GPS on their cell phone, we may not quite be there yet, unless you're lost and want the rescuers to find you somewhere on Mount Baldy. The traffic feature on the maps really doesn't work that well, and there's not really too much else you can do with it. Soon we'll get there, but not quite yet.
Now if I could only find where I put my cell phone.
Back to top.