The Orange County Trial Lawyers Association is hosting its annual Golf Tournament on October 7, 2010. Come out and have some fun with local attorneys, judges and Mediators. For information, log onto https://www.octla.org
Sat 28 Aug 2010
Orange County Trial Lawyers Work on Golf Game
Posted by Gregory Brown under Trial Tips, orange county trial attorney, personal injury
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Sat 24 Apr 2010
Feel like they are teaming up against you?
Posted by Gregory Brown under Business Litigation, Fraud & Misrepresentation, Irvine business lawyer, Orange County Business Lawyer, Police Misconduct, Trial Tips, orange county trial attorney, personal injury
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Brown & Charbonneau, LLP – - Irvine Business Lawyers
Gregory G. Brown – - Certified Trial Specialist
Courts may limit the number of attorneys who can examine witnesses in trial
Sometimes, there are multiple attorneys representing the same person or multiple parties on the same side, each with their own lawyer. This can pose increased work and effort to the side without multiple lawyers.
Courts have inherent equity, supervisory and administrative powers as well as inherent power to control litigation before them. Cottle v. Superior Court, 3 Cal. App. 4th 1367, 1377 (1992). Inherent powers of the court are “derived from the state Constitution and are not confined by or dependent on statute.” Id.; Walker v. Superior Court, 53 Cal. 3d 256, 267 (1991). California courts have fashioned new forms of procedures when required to deal with the rights of the parties and to manage the caseload of the court. Cottle, supra, 3 Cal. App. 4th at 1377. Thus, for example, a trial court is empowered to exercise its supervisory power in such a manner as to provide for the orderly conduct of the court’s business and to “guard against inept procedures and unnecessary indulgences which would tend to hinder, hamper or delay the conduct and dispatch of its proceedings.” Ellis v. Rshei Corp., 143 Cal. App. 3d 642, 648-49 (1983).
California courts also have broad, discretionary authority to exclude evidence. Cottle, supra, 3 Cal App. 4th at 1379; Evidence Code sections 310 (determination of issues of fact preliminary to the admission of evidence), 320 (the power to regulate the order of proof), 352 (exclusion of prejudicial, confusing and unduly time-consuming evidence) and 402, subdivision (b) (preliminary determination regarding admissibility of evidence); 3 Witkin, Cal. Evidence (3d ed. 1986) section 1701, p. 1667.
Brown & Charbonneau, LLP – - Irvine Business Lawyers
Gregory G. Brown – - Certified Trial Specialist
Contact Us: gbrown@bc-llp.com
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Wed 14 Apr 2010
Did you know that today in history . . .
Posted by Gregory Brown under Business Litigation, Irvine business lawyer, Orange County Business Lawyer
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I learned that today, April 14, was the date in history that Abraham Lincoln was assassinated and the day the RMS Titanic hit an ice berg and sank! Thought I’d take a break from the law to share this bit of trivia.
Irvine Business Law Attorneys – - Brown & Charbonneau
Irvine Trial Attorney – - Gregory G. Brown
Certified Trial Specialist
Sat 10 Apr 2010
Insurance agents v. brokers and insurance bad faith
Posted by Gregory Brown under Business Litigation, Fraud & Misrepresentation, Irvine business lawyer, Orange County Business Lawyer, orange county trial attorney, personal injury
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Irvine Trial Lawyer Gregory G. Brown
Brown & Charbonneau, LLP – - Irvine Business Law Firm
Insurance agents v. brokers and insurance bad faith
Sometimes in insurance bad faith cases, these distinctions become relevant. Insurance companies typically market their policies through agents and/or brokers. Some companies employ their own exclusive or captive agents to contact potential policyholders. Others use independent agents or brokers.
Distinction Between Agents and Brokers
Although both agents and brokers sell insurance, and either may earn commissions from an insurer, there are major differences in their function and authority (below).
Caution re case law: Courts have created confusion in this area by imprecision in differentiating between an “agent” and “broker” or by using the terms interchangeably. As a result, some cases appear to mischaracterize the insurance professional’s status.
Insurance agent: An “insurance agent” is “a person authorized by and on behalf of an insurer to transact all classes of insurance, except life insurance.” [Ins.C. §§ 31, 1621 (emphasis added); see Krumme v. Mercury Ins. Co. (2004) 123 CA4th 924, 929, 20 CR3d 485, 488 (citing text); see Arocho v. California Fair Plan Ins. Co. (2005) 134 CA4th 461, 466, 36 CR3d 200, 204, fn. 10 (citing text)]
Some agents are full-time employees of an insurance company. Others are independent contractors, who may have employees of their own to whom they delegate authority to act on behalf of the insurance company. [See Patricia Adkins Ins. Agency, Inc. v. State Farm Mut. Auto. Ins. Co. (2007) 146 CA4th 526, 528–529, 52 CR3d 882, 884]
Effect: An insurance agent’s primary obligation is to represent the insurer in the transaction of insurance with the general public and to bind the insurer on coverage (see ¶ 2:32). [See Marsh & McLennan of Calif., Inc. v. City of Los Angeles (1976) 62 CA3d 108, 117–118, 132 CR 796, 802]
Insurance agents sometimes also represent insurers with respect to the submission, investigation and payment of claims. In such cases, notice of loss given to an insurance agent may be treated as notice of loss to the insurer.
Insurance broker
An “insurance broker” is defined by statute as a “person who, for compensation and on behalf of another person, transacts insurance other than life insurance with, but not on behalf of, an insurer.” [Ins.C. §§ 33, 1623 (emphasis added); see Krumme v. Mercury Ins. Co. (2004) 123 CA4th 924, 929, 20 CR3d 485, 488 (citing text)]
Effect: “Put quite simply, insurance brokers, with no binding authority, are not agents of insurance companies, but are rather independent contractors.” [Marsh & McLennan of Calif., Inc. v. City of Los Angeles (1976) 62 CA3d 108, 118, 132 CR 796, 803]
Their function is to represent proposed insureds in negotiating with insurance companies on rates, premiums and terms of coverage. A broker may deal with one or more separate insurance companies. [Krumme v. Mercury Ins. Co., supra, 123 CA4th at 929, 20 CR3d at 488]
Thus, a broker in securing a policy for a client acts only on behalf of the client (the insured), not the insurer. [Carlton v. St. Paul Mercury Ins. Co. (1994) 30 CA4th 1450, 1457, 36 CR2d 229, 232; Rios v. Scottsdale Ins. Co. (2004) 119 CA4th 1020, 1026, 15 CR3d 18, 22–23]
Application must disclose broker’s status: Every application for insurance submitted by a broker must show that the person is acting as a broker. [Ins.C. § 1623]
Retail vs. wholesale brokers: A “retail broker” deals primarily with the insurance consumer, the prospective insured. A “wholesale broker” ordinarily deals only with other brokers attempting to locate the best market for a particular insured or group of insureds.
Liability for false information furnished insurer: An insurance broker, like any other professional, may be held liable to third persons injured by its fraud or negligence. Thus, if a broker submits an insurance application containing information the broker knows or should know to be false, and the insurer relies thereon in issuing a policy, the broker may be liable for whatever losses and costs are incurred by the insurer under the policy. [Century Sur. Co. v. Crosby Ins., Inc. (2004) 124 CA4th 116, 124, 21 CR3d 115, 121—broker could be liable for defense costs incurred by insurer]
Gregory G. Brown
gbrown@bc-llp.com
714.505.300
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Wed 7 Apr 2010
No governmental immunity for breach of “mandatory duty”
Posted by Gregory Brown under Irvine business lawyer, Orange County Business Lawyer, orange county trial attorney, personal injury
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Irvine Trial Lawyer – - Gregory G. Brown
Irvine Personal Injury Lawyers – - Brown & Charbonneau, LLP
Government Code § 815.6, which imposes liability for breaches of mandatory duty of public entity provides:
Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.
It is well established that §§ 818.2 and 821, which generally confer immunity for damages caused by law enforcement failures encompass only discretionary law enforcement activity. They do not bar liability for breach of a mandatory law enforcement duty. Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1194. “The immunity statutes do not bar liability for breach of a mandatory law enforcement duty.” Id. citing Morris v. County of Marin (1977) 18 Cal.3d 901, 916-917; see also Roseville Community Hosp. v. State of California 74 Cal.App.3d 583, 587 (holding that “[t]he statutes declaring immunity for damages caused by law enforcement failures encompass only discretionary law enforcement activity. [Citation] They have not barred liability when breach of a mandatory law enforcement duty was discerned.”) Therefore, liability for mandatory duties under Government Code § 815.6 clearly trump the immunities under §§ 818.2 and 821.
So, police officers and other governmental employees are not always “immune from liability” for their wrongful acts.
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Tue 6 Apr 2010
For attorneys involved in litigation – - READ THIS
Posted by Gregory Brown under Business Litigation, Family Law, Fraud & Misrepresentation, Irvine business lawyer, Landord Tenant/Real Estate, Orange County Business Lawyer, Trial Tips, orange county trial attorney, personal injury
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One important issue attorneys must always consider when they choose to represent themselves in litigation is whether attorneys fees would otherwise be recoverable under contract or statute. Trope v. Katz, (1995) 11 Cal.4th 274 expressly addressed the issue of whether an attorney who chooses to litigate pro se rather than retain another attorney to represent him in an action to enforce a contract containing an attorney fee provision can nevertheless recover “reasonable attorney’s fees” under Civil Code section 1717 as compensation for the time and effort expended.
The Court found that “an attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover ‘reasonable attorney’s fees’ under Civil Code § 1717 as compensation for the time and effort he expends on his own behalf or for the professional business opportunities he forgoes as a result of his decision.” Id. at 292 “[A] litigant cannot recover attorney fees unless he actually paid or became liable to pay consideration in exchange for legal representation.” Id.
Certified Trial Specialist
The Court based its holding on the fact that since pro se litigants who are not attorneys could not recover under Civil Code § 1717, it did not want to create disparate treatment. Further, the Court further held that “[a]ny litigant who chooses to represent himself in an action to which section 1717 applies necessarily assumes the risk that he may be required to pay his opponent’s attorney fees if he does not prevail, even though he will not be compensated for his own time and effort regardless of the result.” Id. at 289.
Therefore, if attorneys’ fees are recoverable and a party attorney has a strong case, the attorney should consider retaining counsel in order to recoup fees. Otherwise, the party attorney will have to work up the case with no chance of recovering fees.
Brown & Charbonneau, LLP
Greg Brown gbrown@bc-llp.com
866.BEST129
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Sun 4 Apr 2010
Can you elimate a witnesses testimony at trial?
Posted by Gregory Brown under Business Litigation, Family Law, Fraud & Misrepresentation, Irvine business lawyer, Landord Tenant/Real Estate, Orange County Business Lawyer, Trial Tips, orange county trial attorney, personal injury
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Irvine Business Lawyer Irvine Trial Attorney Gregory G. Brown, Certified Trial Specialist
Discovery
A central purpose of discovery is to eliminate unfair surprise at trial. (Davies v. Superior Court, (1984) 36 Cal.3d 291, 299.) Exclusion at trial is appropriate for concealing or otherwise not producing the evidence in discovery that would cause “unfair surprise” at trial. (See Weil & Brown, Cal Prac. Guide: Civ. Proc. Before Trial (TRG 2007), § 8:1508.10; Chronicle Publishing Co. v. Superior Court (1960) 54 Cal. 2d 548, 561) [Emphasis added]
Evidence Code
In this vein, Evidence Code § 352 provides in part:
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will …(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In one case, the attorneys for the deponent refused to allow questioning of him by two different attorneys for the same party. They were cited to: “nothing in California law prohibits questioning by two attorneys at a deposition.” Weil & Brown, Cal Prac. Guide: Civ. Proc. Before Trial (TRG 2007), § 8:718.1 citing Rockwell Int’l, Inc. v. Pos-A-Traction Industries (9th Cir. 1983) 712 F.2d 1324, 1325. They still refused to allow questioning by the second attorney, who had prepared separately to question on separate and distinct areas (very complicated).
Prejudice & Exclusion of Testimony
Since our client will now be prejudiced significantly by the refusal to answer questions, exclusion of the testimony in its entirety may be appropriate by the Court.
Brown & Charbonneau, LLP
Gregory G. Brown gbrown@bc-llp.com
866.BEST129
714.505.3000
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Wed 31 Mar 2010
Yes, two attorneys for same party can ask questions of deponent
Posted by Gregory Brown under Business Litigation, Fraud & Misrepresentation, Irvine business lawyer, Orange County Business Lawyer, Trial Tips, orange county trial attorney
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Irvine Business Lawyer Gregory G. Brown
Encountered the curious objection by one adverse attorney. Two attorneys for one party cannot split up the duties of questioning a deponent. Oh, really? We lets read Rutter on this:
“Nothing in California law prohibits questioning by two attorneys at a deposition. [Rockwell Int'l, Inc. v. Pos–A–Traction Industries (9th Cir. 1983) 712 F2d 1324, 1325—applying California law]”
Certified Trial Specialist
There’s your answer.
Brown & Charbonneau, LLP
Gregory G. Brown gbrown@bc-llp.com
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Tue 30 Mar 2010
Statements of Decision – - Important in Trial and Comlex Litigation
Posted by Gregory Brown under Business Litigation, Irvine business lawyer, Landord Tenant/Real Estate, Orange County Business Lawyer, Trial Tips, orange county trial attorney
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Irvine Trial Lawyer – - Gregory G. Brown
Irvine Business Attorneys – - Brown Charbonneau, LLP
Statements of decision are often sources of confusion for trial attorneys. Governed typically by Code of Civil Procedure Section 632 and 634 (more in particular areas of law, like family law).
Gregory G. Brown, Certified Trial Specialist
Purpose
The purpose is to protect against implied and inferred findings and presumptions. They are designed to allow the trial court to correct its intended decision. They also frame the issues for appeal (if necessary). Last, they facilitate appellate review (again if necessary).
Practical Issues
They are difficult, hotly contested and can take months.
Role of Objections
The failure to bring errors, ambiguities, or other deficiencies in the statement of decision to the attention of the trial court deems such deficiencies WAIVED on appeal. (Marriage of Arceneaux (1990)). Errors of law, however, ARE NOT WAIVED. Challenges based on substantial evidence are also NOT WAIVED for failure to raise them in the objections.
Don’t Confuse “Statement of Reasons”
“Statement of Reasons” are not statements of decision. They are informal documents and explain the Court’s ruling to the litigants. This is different than the SOD, which explains the Trial Court’s reasoning to the Court of Appeal.
There will be more on this very soon. We are working on one as we speak and will have lots to share.
Gregory G. Brown – - Certified Trial Specialist – - gbrown@bc-llp.com
866.BEST129 – - 714.505.300
Brown & Charbonneau, LLP
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