Wednesday, July 3, 2013


It looks like the Judicial Council is going to make it mandatory to E-file all courthouse filings through-out the state within the near future.  An initial pilot program requiring E-filing at Orange County Superior Court has already been in effect.  The OCSC E-filing project initially only applied to complex cases, and then was gradually expanded to include all filings over a phased-in period of time.

E-filing means that the litigant must download his legal pleadings and send them to an approved vendor, who will then electronically file same with the court.  Either the litigant or the vendor must have an approved on-line payment system in effect in order to satisfy any filing fees required by that particular court.

As is the case with all things in the computer age, there are advantages and disadvantages to E-filing.

Advantages allow the litigant to directly file their pleadings, without traveling to the courthouse to do so; and to file documents as late as midnight of the given business day in which they are filed.  The latter fact may be important if a litigant is trying to get something on file before a relevant Statute of Limitations expires.  You also don't have to stand in line at the clerk's offices to get something on file.

Disadvantages would include the following:  A service fee is charged by a vendor for each E-filing, using in the amount of $9.95 for all court documents pertinent to one case that are being E-filed at one time; you must go to the trouble of scanning each document that must be E-filed (many times various types of motions may literally include dozens if not hundreds of pages); many vendors charge the litigant an "advance fee" for all filing fees that they advance on behalf of the litigant; and to those who do not have a computer or are unsophisticated re same, the E-filing requirements may be a major hassle or outright obstacle, especially if they do not have an attorney and are representing themselves in an action.

Bottom-line: E-filing is inevitable, but it costs litigants more for the ostensible purpose of making the court system more efficient.

Wednesday, May 29, 2013

SHIN v. KONG (2000)

I successfully represented the defendant physician in this appeal back in 2000.  One of the interesting things that happens when an appellate decision becomes reported, as this appeal was, is that other attorneys and courts can cite it as legal precedent, and which has occurred several times with this case in subsequent decisions.  The case stands for the legal proposition that a physician owes a duty of care to his patient, and not to the patient's spouse whom he is not treating.  It is also significant for its reinforcement of the "anti-heart" balm statute as embodied in Civil Code section 43.5 as first enacted in 1939, and which prohibits civil damage actions for alienation of affection, seduction of an adult or "criminal conversation" (aka committing adultery with another person's spouse).  The practice of law was probably more exciting before this code section was enacted.

Tuesday, May 7, 2013


The state's budgetary woes have already severely impacted the court system, especially in San Francisco and Los Angeles, where various subsidiary courts have had to close, resulting in longer waiting periods to get to trial and more travel time for litigants to attend court hearings.
Orange County Superior Court has been affected as well, although I believe it is one of the better managed county court systems in the state and has thereby been able to avoid many of the court closures that have affected other counties.
That is about to change on July 1, 2013.  At that time, the following changes will occur:

     The limited jurisdiction court in Laguna Hills will close.  This courthouse serviced South Orange County in small claims, traffic, civil harassment, unlawful detainer, and limited jurisdiction civil cases where the amount in dispute was less than $25,000.00.  Thereafter, the limited civil cases will be transferred to the Central Justice Center courthouse in Santa Ana, and the other matters will be heard at the Harbor Justice Center in Newport Beach.

     Probate and mental health cases, which used to be heard at the Lamoreaux Justice Center in the City of Orange, will also be transferred to the Central Justice Center.

     Family law cases (divorce and separation cases, adoptions, etc.) that were formerly heard at the Central Justice Center will be centralized and heard only at the Lamoreaux Justice Center.

Across the state, $260 million is being cut from court budgets, with Orange County bearing slightly more than 8 percent of that number.

This will probably result in longer waits for trial on civil matters, as the civil trial panel in Santa Ana will now have to deal with a glut of limited jurisdiction cases in addition to their regular caseload of unlimited jurisdiction cases, wherein the amount in dispute exceeds $25,000.00.

The above changes will probably be more inconvenient to litigants than to attorneys, other than waiting for longer periods of time to get to trial.  Up until now, Orange County Superior Court has been very diligent in ensuring that most of the civil cases went to trial no later than a year from the date that the action was filed.  That is probably going to change, given the above developments.

While the legal system in this country has its share of critics, I firmly believe that the United States has the most fair and enlightened criminal and civil justice system in the world, and it is a shame that financial mismanagement by a series of governors and state legislators has brought us to this point in time.

Wednesday, April 17, 2013

Out of the all of the appeals that I have been involved in, the case that is identified in this link is probably the most interesting.  It involved a family dispute over the dinner table, when an irate uncle choked out my client's 14 year old son in response to a verbal exchange between the two.  The police were summoned, and they arrested the uncle for assault on the minor.  The uncle was prosecuted for a misdemeanor and was acquitted following a jury trial, in large part due to his retaining one of the better criminal defense attorneys in the county and due to the failure of the D.A.'s offices to subpoena the minor's grandparents, who witnessed the altercation but who reside up in Northern California. The D.A.'s offices apparently won't incur travel expenses for witnesses unless it is a felony matter.  Thereafter, the uncle sued my client and his girlfriend for malicious prosecution and false arrest, contending that they maliciously filed a false police report against him.  I filed a special motion to strike the civil lawsuit under C.C.P. sec. 425.16, contending that the actions of the clients in calling the police was a privileged act of petition of grievances under the code section, such that it could not constitute a basis for a civil lawsuit.  We further contended that even though the uncle was claiming that he choked the minor in self-defense, that there were sufficient objective facts to justify the call to the police by the clients.  The trial court disagreed and denied my motion, at which time I took it up on appeal and the appellate court agreed with me, which resulted in the dismissal of the malicious prosecution action and an award of attorney's fees and costs to my clients.  The opinion is in the link and makes for interesting reading even if you are not an attorney.  The bottom-line is that pursuing malicious prosecution cases are fraught with peril, and that you better have the case thoroughly analyzed as to your chances for success if you intend to pursue such an action.

Wednesday, February 6, 2013


I had posted an earlier blog last year about how an appellate court upheld an award of emotional distress damages to a couple that owned a dog when their neighbor attacked it with a baseball bat, injuring it.  The CA Supreme Court refused to review the appellate court decision, so the dog owners' damages claim is now a done deal.  Again, this represents a significant shift in the law, where traditionally most courts have disallowed emotional distress claims related to pet injuries.

The current state of the law is therefore that emotional distress damages are allowable to the pet owner if their pet has been intentionally injured (ie., via the situation hereinabove), but not when their pet has been only negligently injured (ie., like an errant motorist hitting a stray in the roadway, or a veterinarian being sued for malpractice because of a procedure being performed with complications on a pet).

The recent appellate decisions also appear to allow the recovery of vet bills to treat an injured animal, even when the bills exceed the fair market value (FMV) of the pet.  Contrast this to the situation wherein if your motor vehicle has been damaged in an accident, that your damages are limited to the cost of repair or the FMV of the vehicle, whichever is less.

The arguments against allowing emotional distress damages for the loss or injury to a family pet are essentially twofold:  (1)  If emotional distress damages are to be allowed, then to how many family members is such relief to be granted; and (2)  parents who suffer the injury or death of a minor child due to the negligence of another are not normally allowed damages for emotional distress unless they contemporaneously witness the injury or death of the child, and in the case of the death of a child the parents are limited to the loss of future financial support the child would have arguably provided them had the child lived, plus the "loss of society" of the deceased child.

This is an evolving area of California law, but it definitely appears that the courts are starting to recognize the unique bond that family pets share with their human owners, and are translating it into a remedy when the pet is injured.