From the Editor
Jeffrey Isaac Ehrlich Editor-in-Chief
Appellate Reports and Cases in Brief Recent cases of interest to members of the plaintiff’s bar
About this Issue Personal injury; tobacco; statute of
Jeffrey Isaac Ehrlich Editor-in-Chief
limitations; discovery rule: Pooshs v. Philip Morris USA, Inc. (2011) __ Cal.4th __ Plaintiff, a cigarette smoker, was diag-
nosed with chronic obstructive pulmonary disease (COPD) caused by her smoking habit in 1989. She did not sue. She was diagnosed with smoking-related periodon- tal disease in 1991, and did not sue. In 2003, she was diagnosed with lung cancer, and filed suit. The Ninth Circuit request- ed that the Supreme Court decide whether the statute of limitations had run on her claim. The Supreme Court phrased the issue it was deciding this way: “When multiple distinct personal injuries allegedly arise from smoking tobacco, does the earliest injury trigger the statute of limitations for all claims, including those based on the later injury? In a unanimous opinion, the Supreme Court answers the question, “no.” Plaintiff’s 1989 diagnosis with COPD did not trigger the statute of limitations for a claim based on a different injury, even if it was caused by smoking, and even if it affected the same organ as the original injury. Attorney-Client relations; interfer-
Jeffrey Isaac Ehrlich About
this Issue
ence with prospective economic advan- tage; settlements: Lemmer v. Charney
(2011) _ Cal.App.4th __, 2d Dist. Div. 8.
Attorney’s suit against client for fraud
and interference with prospective eco- nomic advantage was dismissed without leave to amend on demurrer. Affirmed. Charney hired Lemmer to pursue a law- suit against his former employer, Teleflora. The retainer was originally hourly, but Charney and Lemmer agreed to change it to a contingency-fee agree- ment. Lemmer claimed that Charney promised to take the case to trial or settle- ment, but on the eve of trial made a “walk away” deal with Teleflora, depriving Lemmer of a fee. The court held that any agreement that restricted the client’s right to settle the case was void as against public policy, and that the plaintiff’s freedom to walk away from his lawsuit trumped any prospective economic advantage the lawyer might possess. Arbitration; disclosures by arbitra-
tors; attorney-client relations: Benjamin, Weill & Mazer v. Kors (2011) __ Cal.App.4th __ (1st Dir. Div. 2.) Law firm (“BMW”) sued former
client for fees. Based on the arbitration clause in the fee agreement, which con- tained an internal inconsistency, the duty
to arbitrate was enforceable under the California Arbitration Act (“CCA”), but the mechanism for the arbitration was the Mandatory Fee Arbitration Act (“MFAA”). The arbitration was held, ostensibly under the MFAA, and Sean SeLegue, an attor- ney whose practice principally involved defending law firms in legal-malpractice cases, was the chief arbitrator. SeLegue did not disclose, as required by the CAA, under Code of Civil Procedure section 1281.9. Kors sought to vacate the arbitra- tion award on that basis, and appealed when the trial court refused to do so. Reversed. In a lengthy analysis, the appel- late court held that the CAA applied, and therefore its disclosure obligations did, as well. It found that “a reasonable person [could] doubt whether SeLegue’s dependence on business from lawyers and law firms sued by former clients would prevent him from taking the side of a client in a fee dispute with a former law firm, because doing so might ― put at risk his ability to secure business from the lawyers and law firms whose business he solicits.” Accordingly, he was required to disclose the nature of his practice, and his failure to do so mandated reversal of the arbitration award. The court also held that the trial court should have awarded Kors fees under the arbitration agree- ment for her successful efforts to compel arbitration under the CAA. Attorney’s fees; lodestar; multipliers;
Code of Civil Proc section 1021.5: Rogel v. Lynwood Redevelopment Agency (2011) __ Cal.App.4th __ (2d Dist. Div. 8.) Plaintiffs, residents of a mobile-home
park sued the Lynwood Redevelopment Agency, claiming that a proposed plan to change the mobile-home park into town- homes would result in the loss of low- income housing units and force plaintiffs out of the City. The parties ultimately set- tled on terms favorable to the plaintiffs. Plaintiffs made a motion for attorney’s fees under Code of Civil Procedure
82— The Advocate Magazine JUNE 2011
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