[UPDATED THROUGH SEPTEMBER 8, 2016]
What Interest Does a Dissolved Law Firm have in an Ongoing Legal Matter Which Was Handled on an Hourly Basis? Following a request by the U.S. Court of Appeals for the Ninth Circuit under California Rules of Court, rule 8.548, the Supreme Court granted review on this issue: Under California law, what interest, if any, does a dissolved law firm have in legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis? Heller Ehrman LLP v. Davis Wright Tremaine LLP, S236208 (Requesting case – 9th Cir. Nos. 14-16314, 14-16315, 14-16317, 14-16318; __ F.3d __, 2016 WL 4011194.) Review was granted 8/31/16.
Can a Sophisticated and Represented Party Give Informed Consent to a Future Conflict, and Does a Harmless Conflict Bar Collection of Fees ? After the Court of Appeal reversed the judgment which confirmed an arbitration award upholding the engagement agreement and finding that counsel was entitled to all of its fees, the Supreme Court granted review on the following issues: (1) May a court rely on non-legislative expressions of public policy (i.e., California Rules of Professional Conduct, Rule 3-310), to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work? Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., S232946 (opinion below B256314 (as modified), 244 Cal.App.4th 590, mod. 245 Cal.App.4th 63b). Review was granted 4/27/16.
Does the Interim Adverse Judgment Rule Apply to Bar Malicious Prosecution after an Ultimate Finding of Bad Faith? After the Court of Appeal affirmed an order granting a special motion to strike, the Supreme Court granted review of the following issues: (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith? (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Code of Civil Procedure section 304.6? Parrish v. Latham & Watkins, S228277, (opinion below B244841, and after rehearing, formerly 238 Cal.App.4th 81). Review was granted 10/14/95.
Are Redacted Attorney Invoices Still Privileged? After the Court of Appeal granted a petition for peremptory writ of mandate, the Supreme Court granted review on the following issue: Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted? Los Angeles County Bd. of Supervisors v. Superior Court, S226645, (opinion below B257230, formerly 235 Cal.App.4th 1154). Review was granted 7/8/15. Update 3/23/16: Review granted in Marina Coast Water Dist. v. Public Utilities Com., S230728 (original proceeding). Briefing deferred pending resolution of Los Angeles County Bd. of Supervisors. Update 9/8/16: Oral argument scheduled for 10/6/16.
Does Raising an Affirmative Defense Trigger the Attorney Fees Provision of Contract or Civil Code § 1717? After the Court of Appeal reversed an order denying attorney fees the Supreme Court granted review on the following issues: (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement? (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense? Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536 (opinion below A138306, formerly 231 Cal.App.4th 805). Review was granted on 3/18/15.
Can a Court Base Class Action Attorney Fees on a Common Fund Percentage? After the Court of Appeal affirmed a civil judgment, the Supreme Court granted review on the following issue: Does Serrano v. Priest (1977) 20 Cal.3d 25 permit a trial court to anchor its calculation of a reasonable attorney’s fees award in a class action on a percentage of the common fund recovered? Lafitte v. Robert Half Internat., Inc., S222996 (opinion below B249253, formerly 231 Cal.App.4th 860). Review was granted 2/25/15. Update 5/4/16: Oral argument scheduled for 5/27/16. The briefs are here. Update 5/27/16: Case argued and submitted. Update 8/11/16: Opinion filed. The unanimous Supreme Court affirmed the lower courts and distinguished Serrano on the grounds that it was addressing a reasonable attorney fee in connection with an award under the private attorney general doctrine. The Supreme Court confirmed that when an attorney fee is awarded out of a common fund preserved or recovered by means of litigation, the award is not per se unreasonable merely because it is calculated as a percentage of the common fund.
Can the Court Award Attorney Fees After Striking the Complaint for Lack of Jurisdiction? After the Court of Appeal reversed an order awarding attorney fees in a civil action, the Supreme Court granted review on the following issue: If the trial court grants a special motion to strike under CCP § 425.16 on the ground that the plaintiff has no probability of prevailing on the merits because the court lacks subject matter jurisdiction over the underlying dispute, does the court have the authority to award the prevailing party the attorney fees mandated by § 425.16(c)? Barry v. State Bar of California, S214058 (opinion below B242054, formerly 218 Cal.App.4th 1435). Review granted on 11/27/13.