SEEKING COSTS UNDER CCP § 998 Jul 14, 2017

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.


partnership break
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, and Mr. Mueller may be reached at

Five Year Anniversary May 31, 2017

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

Maloney Firm Featured in Daily Journal May 17, 2017

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.

Read the full article here

Gregory M. Smith Joins the Firm Apr 17, 2017

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

Welcome Attorney Vanessa Willis to the Firm Mar 03, 2017

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

Patrick Maloney to be Sworn in as Secretary of the South Bay Bar Association Feb 03, 2017

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.

2017 Super Lawyers Jan 20, 2017

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.

Patrick Maloney Featured as a Trusted Advisor Nov 04, 2016

The November 2016 edition of Southbay magazine features Trusted Advisors in our community. Patrick Maloney discusses how clients can achieve and maintain success and the benefits of working with our firm.

Read the article

Court of Appeal Clarifies Legal Malpractice Statute of Limitations Oct 17, 2016

CA Court of Appeal Clarifies Termination of Tolling Period for Legal Malpractice Statute of Limitations Under Code of Civil Procedure § 340.6 (a)(2)

By: Carl I. S. Mueller of The Maloney Firm, APC

On October 12, 2016, the California Court of Appeal filed its opinion in the matter styled as Gotek Energy, Inc. v. Socal IP Law Group, LLP. The central issue of law on appeal in this legal malpractice action was whether the trial court below correctly entered summary judgment in favor of the defendants, Socal IP Law Group, LLP (“firm one”), based on a statute of limitations defense. At a basic level, the appellate court reaffirmed the rule that the one year statute of limitations for legal malpractice actions is not tolled pursuant to Cal. Code of Civil Procedure § 340.6 (a)(2) once legal representation has terminated. However, the facts of the case make clear that the language of the communications is of the utmost importance in determining when the legal representation ends. Thus, the summary judgment ruling was affirmed and the legal representation found to have ended on the date that firm one sent a letter to its client stating that the attorney-client relationship “is terminated forthwith.”
To sum up the facts of the case, firm one represented Gotek Energy, Inc. (“client”) in relation to specific patent filings. Firm one admittedly failed to timely file for patent rights in Japan and Brazil, and informed client in August 2012 that it had been negligent. On September 26, 2012, client retained Parker Mills (“firm two”) to investigate firm one’s negligence. On November 5, 2012, firm one sent a fax to firm two stating that client was making a malpractice claim on firm one, and asking firm one to tender the claim to its insurance carrier. On November 7, 2012, firm one sent an email to client stating that it “must withdraw” and including the following language:

Consequently, the firm’s attorney-client relationship with [client] is terminated forthwith, and we no longer represent [it] with regard to any matters.[…] Please tell us immediately where we should send [client’s] files[…]. You should retain patent counsel to handle your patent matters.

Client requested that firm one release client’s files to a third law firm on November 8, 2012, requesting the transfer be complete by November 23, 2012. On November 15, 2012, firm one sent client a letter to “confirm” that the attorney-client relationship had been “terminated” and that the client’s files would be released pursuant to the request.
Firm two filed client’s complaint for legal malpractice against firm one on November 14, 2013. There is no dispute that the injury occurred at least by September 26, 2012, and likely before. However, client argued that the statute of limitations should be tolled until November 15, 2012, when firm one released client’s file.
The Appellate Court disagreed, stating that firm one’s representation of client ended by November 8, 2012:

[F]irm one’s representation of client ended on November 8, 2012, when client wrote a letter to firm one requesting that it “immediately make all necessary preparations and take all necessary action to deliver all [of client’s] filed to” Armstrong Teasdale, LLP. [Omitted]. By requesting that its files by immediately delivered to replacement counsel, client consented to firm one’s express withdrawal of the previous day.

The court further ruled that based on firm one’s letter to client on November 7, 2012 stating that it was terminating the attorney-client relationship, client had no reasonable expectation of firm one’s continuing representation after that date under the rule set out in Gonzalez v. Kalu (2006) 140 Cal.App.4th 21. As such, the statute of limitations stopped tolling on November 7, 2012:

Pursuant to this rule, firm one’s representation ended on November 7, 2012. On that date, firm one emailed client that it “must withdraw” as client’s attorney, that is “attorney-client relationship with [client] is terminated forthwith,” and that it “no longer represent[s] [client] with regard to any matters.” After receiving the email, client could not reasonably have expected that firm one would provide further legal service.

As such, it appears that the Appellate Court has used this opportunity to establish a bright line rule to end the ongoing representation tolling rule of a legal malpractice statute of limitations under Code of Civil Procedure § 340.6 (a)(2): when a client has already engaged replacement counsel, the ongoing representation ends upon a communication with the client that states the attorney-client relationship is ending. As stated by the court, any delay in releasing the client’s files does not continue the representation, as “the transfer of files was a clerical, ministerial activity,” and not legal representation.