CA Pub. Decisions

Motion to quash service of summons is an appropriate vehicle to challenge an unlawful detainer complaint that fails to allege compliance with applicable prefiling notice requirements, such as the requirement of a 60 day notice to terminate a houseboat tenancy.

A modification decision.

Where medical executive committee recommended that physicians' membership and clinical privileges at hospital be terminated, and physicians each invoked right to a hearing and requested that all hearings be consolidated, availability of an appeal of hearing officer's ruling on merits to Judicial Review Committee, in which any error in denying consolidated hearing could have been challenged, constituted an adequate administrative remedy. Writ of mandate directing that hearings on MEC recommendations be consolidated was error where physicians failed to exhaust adequate administrative remedy. High cost of resolving claims at individual hearings, alleged inability to adequately marshal resources for such hearings, and lack of subpoena power did not constitute irreparable harm justifying excusal of failure to exhaust administrative remedy where there was no showing that any witness would be unavailable if separate hearings were held, any potential problems stemming from the lack of subpoena power would be faced equally by both sides, and costs were a normal incident of participation in the process.

Substantial evidence supported a fair argument that timberland conversion project may have a significant effect on the environment, thus requiring preparation of an environmental impact report, where record contained detailed comment letter by an experienced professional plant ecologist and botanist opining that the mitigated project may have significant environmental effect in numerous specific areas including increased sediment due to erosion, the potential of net reduction in groundwater discharges due to irrigation, and permanent loss of 63 acres of spotted owl habitat.

Corporation, which acquired brokerage firm after dispute involving that firm was submitted to arbitration but before award became final, did not, by reason of such acquisition, become a party to the arbitration for purposes of rule requiring disclosure of any financial relationship between the arbitrator and a party. A party includes the legal affiliate of a named party only if the affiliate is involved in the transaction, contract, or facts that gave rise to the issues subject to the proceeding.

Cause of action for violation of Patients Bill of Rights survives patient's death, and where such claim was specifically excluded from scope of arbitration agreement, trial court correctly denied motion to compel arbitration of cause of action brought by survivors. Survivors were not compelled to arbitrate wrongful death claim brought in their individual capacities where one claimant signed arbitration agreement as decedent's "legal representative" but did not sue in that capacity and other claimants did not sign the agreement.

A modification decision.

It all started over a quarter of a century ago with a chunk of concrete hurled at Joseph Songer (respondent) by Lawrence Bordan, owner of the Pismo Beach Hotel. As a result of this assault, Songer obtained a money judgment against Bordan. Collection was another matter. If there were a gold medal for "judgment avoidance," it would go to Bordan. He delayed collection for over 20 years. Through the extraordinary efforts of his attorney, Clark Fergus (Fergus), respondent eventually became the owner of the hotel and reaped millions of dollars of profits. However, he refused to pay Fergus and he refused to honor an agreement with Fergus's wife (wife). She had agreed to borrow money against her house to refurbish and run the hotel. Given Bordan's penchant for litigation, this was an extremely risky decision.
Now Court are presented with issues relating to attorney fees and breach of a partnership agreement. Unfortunately, we infuse new life into this legal saga. Court have no choice unless Court are to hold that a non-attorney spouse is bound by the Business and Professions Code and the Rules of Professional Conduct for attorneys. Non-attorney wives and husbands of attorneys retain their individual rights to enter into enforceable contracts after marriage.
Fergus and his wife brought the present action against respondent. They claimed that respondent had refused to pay the amount due under a contingency fee agreement, a modification of that agreement, and a partnership agreement involving wife whereby Fergus and wife would own a 50 per cent interest in the hotel. Respondent filed a cross-complaint alleging that Fergus had committed legal malpractice. In a special verdict, the jury found that Fergus had not committed legal malpractice and that he was entitled, as damages, to a reasonable attorney's fee of $1,200,000. It also found that appellants had loaned respondent $133,494, and that he was required to repay these loans. Judgment was entered on the special verdict.
The trial court granted respondent's motion for a new trial on the issue of damages. It denied respondent's motion for a new trial on the malpractice issue.
Fergus and wife appeal from the trial court's order granting a new trial on the issue of damages. They also appeal from the original judgment on the jury verdict. Respondent has filed a cross-appeal from the judgment.
Court reverse the order granting a new trial and reinstate the $1,200,000 judgment. Court reject appellants' other contentions with one exception: we conclude that the trial court erroneously granted the motion in limine excluding evidence of the oral partnership agreement involving wife. This ruling was the functional equivalent of the granting of a nonsuit as to wife's causes of action based on the partnership agreement. Court reverse the original judgment to the extent that it, in effect, granted a nonsuit as to these causes action. Court reject respondent's claims on the cross-appeal.

It all started over a quarter of a century ago with a chunk of concrete hurled at Joseph Songer (respondent) by Lawrence Bordan, owner of the Pismo Beach Hotel. As a result of this assault, Songer obtained a money judgment against Bordan. Collection was another matter. If there were a gold medal for "judgment avoidance," it would go to Bordan. He delayed collection for over 20 years. Through the extraordinary efforts of his attorney, Clark Fergus (Fergus), respondent eventually became the owner of the hotel and reaped millions of dollars of profits. However, he refused to pay Fergus and he refused to honor an agreement with Fergus's wife (wife). She had agreed to borrow money against her house to refurbish and run the hotel. Given Bordan's penchant for litigation, this was an extremely risky decision.
Now Court are presented with issues relating to attorney fees and breach of a partnership agreement. Unfortunately, we infuse new life into this legal saga. Court have no choice unless Court are to hold that a non attorney spouse is bound by the Business and Professions Code and the Rules of Professional Conduct for attorneys. Non attorney wives and husbands of attorneys retain their individual rights to enter into enforceable contracts after marriage.
Fergus and his wife brought the present action against respondent. They claimed that respondent had refused to pay the amount due under a contingency fee agreement, a modification of that agreement, and a partnership agreement involving wife whereby Fergus and wife would own a 50 per cent interest in the hotel. Respondent filed a cross-complaint alleging that Fergus had committed legal malpractice. In a special verdict, the jury found that Fergus had not committed legal malpractice and that he was entitled, as damages, to a reasonable attorney's fee of $1,200,000. It also found that appellants had loaned respondent $133,494, and that he was required to repay these loans. Judgment was entered on the special verdict.
The trial court granted respondent's motion for a new trial on the issue of damages. It denied respondent's motion for a new trial on the malpractice issue.
Fergus and wife appeal from the trial court's order granting a new trial on the issue of damages. They also appeal from the original judgment on the jury verdict. Respondent has filed a cross-appeal from the judgment.
Court reverse the order granting a new trial and reinstate the $1,200,000 judgment. Court reject appellants' other contentions with one exception: we conclude that the trial court erroneously granted the motion in limine excluding evidence of the oral partnership agreement involving wife. This ruling was the functional equivalent of the granting of a nonsuit as to wife's causes of action based on the partnership agreement. Court reverse the original judgment to the extent that it, in effect, granted a nonsuit as to these causes action. Court reject respondent's claims on the cross appeal.

A modification decision.

Federal Adoption Assistance and Child Welfare Act does not create rights enforceable in a 42 U.S.C. Sec. 1983 civil rights action. Where foster care provider's contract with county provided that county could terminate "for convenience" when deemed in its best interests to do so, contract did not create a constitutionally protected property interest. County did not act arbitrarily or capriciously in placing all of provider's facilities on Do Not Refer status pursuant to contract which entitled county to impose Do Not Refer order if it, in its sole discretion, determined that service deficiencies posed a health or safety risk to any child where county's program audit of provider revealed it was "seriously out of compliance with state regulations and the contract/program statement" because, for example, it failed to provide required individual and group counseling, timely meet foster children's medical and dental needs, and provide children with adequate clothing, food, and activities.

Federal Adoption Assistance and Child Welfare Act does not create rights enforceable in a 42 U.S.C. Sec. 1983 civil rights action. Where foster care provider's contract with county provided that county could terminate "for convenience" when deemed in its best interests to do so, contract did not create a constitutionally protected property interest. County did not act arbitrarily or capriciously in placing all of provider's facilities on Do Not Refer status pursuant to contract which entitled county to impose Do Not Refer order if it, in its sole discretion, determined that service deficiencies posed a health or safety risk to any child where county's program audit of provider revealed it was "seriously out of compliance with state regulations and the contract/program statement" because, for example, it failed to provide required individual and group counseling, timely meet foster children's medical and dental needs, and provide children with adequate clothing, food, and activities.

A modification decision.

Filing of a petition to perpetuate testimony or preserve evidence under Code of Civil Procedure Secs. 2035.010 et seq. does not constitute the filing of a suit for purposes of satisfying the six-month statute of limitations set forth in Government Code Sec. 945.6 (a)(1), of the California Tort Claims Act.