THE MALONEY FIRM OBTAINS COURT OF APPEAL REVERSAL OF ADVERSE RULING ON ANTI-SLAPP MOTION
On August 24, 2017, the California Court of Appeal for the Second Appellate District issued an opinion reversing an order dismissing claims asserted by a client of The Maloney Firm, APC and vacating an order that the client pay attorneys’ fees. Carl I. S. Mueller prepared the appellate briefing, and Patrick Maloney argued the matter to the Court of Appeal.
The appeal stemmed from the trial court’s erroneous order that a cross-complaint filed by The Maloney Firm was brought in retaliation against the plaintiff for filing suit, thereby violating California’s Anti-SLAPP statute. The Court of Appeal reversed the trial court’s order, holding that the trial court misapplied the legal doctrine upon which the trial court’s ruling was based. In short, the Court of Appeal held that the fraudulent behavior on which the cross-complaint was based was not protected by the First Amendment and thus not insulated by the Anti-SLAPP statute. As a result of the Court of Appeal’s ruling, a fraud claim that the trial court had erroneously dismissed has been reinstated and the client is relieved of responsibility to pay his adversaries’ legal fees.
The entire ruling can be found here.
California Court of Appeals Clarifies Procedure for Seeking Costs Under CCP § 998 During Arbitration
By Carl Mueller, The Maloney Firm, APC
In Heimlich v. Shivji, the California Appellate Court Appellate Case No. H042641, the California Court of Appeal recently clarified the procedure for both seeking an award of costs pursuant to Cal. Code of Civil Procedure (“CCP”) § 998 during arbitration and how to seek those costs from the California Superior Courts should an arbitrator refuse to enforce CCP § 998.
Alan Heimlich, an attorney, brought suit against Shiraz M. Shivji for unpaid legal fees. After approximately a year of litigation and after Mr. Shivji had made a settlement offer under CCP § 998 for $30,000, Mr. Shivji successfully moved to compel the case into arbitration proceedings per an arbitration clause within his retainer agreement with Mr. Heimlich. The arbitration was conducted with AAA, and per the terms of the arbitration provision, “in accordance with California law.”
After the arbitrator issued a final award finding that neither party owed the other any money, Mr. Shivji’s counsel sent an email to the arbitrator seeking guidance on the procedure for moving for costs under CCP § 998. The arbitrator refused to hear the motion for costs, as he claimed he “no longer had jurisdiction to take any further action in this matter.”
Mr. Shivji then moved for the Superior Court to confirm the arbitration award and for costs under CCP § 998. The trial court confirmed the arbitration award, but denied the request for costs, because “it was incumbent upon the defendant to raise the CCP issue with the arbitrator on a timely basis.” That is to say, the trial court ruled that Mr. Shivji should have sought costs under CCP § 998 before the arbitrator issued its decision determining that Mr. Shivji was entitled to costs under CCP § 998.
In its decision, the Court of Appeal found such a decision to be unjust, and concluded that both statutory and case law policies required that Mr. Shivji should be able to seek costs under CCP § 998. As such, the decision includes guidance on how a party to arbitration may seek costs under CCP § 998 without prematurely offering evidence of the offer:
Rather than requiring this party to violate section 998, subdivision (b)(2) by prematurely disclosing the existence of a rejected offer in arbitration proceedings, we believe a party’s section 998 request should be deferred until after the arbitration award is made. If and when a party makes a section 998 post-award request, an AAA arbitrator is empowered to recharacterize the existing award as interim, interlocutory, or partial and proceed to resolve the section 998 request by a subsequent award.
In addition, the Court of Appeal issued the following guidance for parties facing an arbitrator refusing to consider a motion for costs under CCP § 998, instructing parties to seek a ruling from the trial court charged with confirming the arbitration award:
We have concluded that the arbitrator should have reached the merits of Client’s post-award section 998 request by recharacterizing his final decision as an interim or partial final decision. We note that when a trial court vacates an arbitration award because the arbitrator refused to hear material evidence, the court’s power to remand the matter to the same arbitrator is limited. “If the award is vacated on the grounds set forth in paragraph (4) or (5) of subdivision (a) of Section 1286.2, the court with the consent of the parties of the court proceeding may order are hearing before the original arbitrators.” (§ 1287.) This restriction should not preclude [Mr. Shivji] from obtaining a decision on the merits of his section 998 request. If the parties in this case do not consent to a rehearing by the original arbitrator, the trial court is required un Pilimai to decide the Client’s section 998 request.
In short, the Court of Appeal ensured that the costs provision under CCP § 998 is available to parties in arbitration — at least those in AAA — notwithstanding whether the arbitrator will consider the request for fees.
THE MALONEY FIRM, APC, OBTAINS AWARD OF $2.37 MILLION, INCLUDING PUNITIVE DAMAGES, FOLLOWING TWO WEEK BENCH TRIAL IN A PARTNERSHIP DISPUTE
Attorneys Patrick M. Maloney and Carl I. S. Mueller represented plaintiff Frontline Capital, Inc. in a two week bench trial in Department 53 of the Los Angeles County Superior Court in February and March 2017. On June 16, 2017, after considering written and oral arguments, the trial court issued its Statement of Decision, granting Frontline Capital both compensatory and punitive damages.
Frontline Capital alleged, and the Court found, that Matt Wiltsey had siphoned off nearly $10 million in corporate funds for himself, without pro rata distribution to Frontline Capital. Mr. Wiltsey diverted the funds through a series of companies he wholly owned, and eventually those funds landed in trusts he established to hold his home and for the benefit of his son. The Court found that Wiltsey’s testimony was not credible and that the accounting records around which the defendants built their defense had been modified and were not reliable. The Court also found that Mr. Wiltsey had backdated documents in order to make the transactions appear legitimate.
Mr. Maloney may be reached at email@example.com, and Mr. Mueller may be reached at firstname.lastname@example.org.
The Maloney Firm is excited to celebrate our five year anniversary. Since opening its doors on June 1, 2012, the firm has enjoyed the opportunity and privilege of providing successful representation to hundreds of clients. The Maloney Firm devotes its practice to all facets of business litigation, employment litigation, legal malpractice, and fee dispute matters.
The firm has experienced robust growth and now boasts a carefully cultivated team of six attorneys and five support staff. Leveraging the strengths of each member of the team, the Maloney Firm has the ability to provide high quality legal representation in a cost-effective manner.
For more information contact Patrick Maloney at 310.540.1505 or email@example.com.
WINNING THE LONG GAME
Attorneys at the Maloney Firm emphasize building relationships over billable events.
By Nicolas Sonnenburg, Daily Journal Staff Writer, 5/12/2017
El Segundo – “How much is it going to cost to solve this problem?” That’s the approach Patrick M. Maloney takes every time a case comes before him. If a client can settle off the bat for $75,000 with $10,000 in legal fees, Maloney feels better pursuing that route over trying to settle the case later on for $50,000 and charging another $50,000 in fees.
This is an important strategy for the Maloney Firm APC, which handles a significant number of legal malpractice and attorney fee dispute cases.
The Maloney Firm is pleased to announce that attorney Gregory M. Smith has joined our firm. Greg is a litigator with substantial experience representing clients in all aspects of civil litigation and business disputes in Federal and California Courts. He has represented individuals, Fortune 100 companies, start-ups, and insurers in diverse industries including sports, trucking, fishing, real estate, construction, and tool manufacturing.
Greg received his Juris Doctor degree from the University of San Diego School of Law. Prior to joining the Maloney Firm, Greg practiced law in Santa Barbara and at a large firm in downtown Los Angeles.
Greg can be reached directly at 310.347.4698 or at firstname.lastname@example.org.
The Maloney Firm is pleased to announce that Vanessa V. Willis has joined our firm as an associate attorney. Ms. Willis focuses her practice on employment litigation and represents both employees and employers in all types of employment matters. She also represents parties in contract disputes, trade secret matters, and other business litigation.
Ms. Willis received her Bachelor of Arts degree in International Relations and Russian from the University of Southern California in 2001 and her Juris Doctor degree from Southwestern University School of Law. Prior to joining the Maloney Firm, Ms. Willis worked for a firm in downtown Los Angeles specializing in governmental entity matters and employment law.
Ms. Willis can be reached directly at 310.347.4691 or at email@example.com
On February 3, 2017, the South Bay Bar Association will hold its 64th Annual Judges Night. At the event, the Association swears in the incoming and incumbent members of its Board of Directors and Executive Committee. Patrick Maloney has served as a member of the Association’s Board of Directors since 2013. This year Mr. Maloney will be appointed to the Association’s Executive Committee, assuming the position of Secretary.
Congratulations to Patrick M. Maloney for being named to the 2017 Southern California Super Lawyers list, an honor bestowed upon only 5% of attorneys. This is the third year in a row that he has been honored. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.