Monthly Archives: February 2012

Nightmare divorce case (I’m taking some nitrogrlycerin right now)

Some divorce cases are complete nightmares.  Especially ones were one side has counsel and the other is pro per se.  I really feel for husband’s counsel in this case who must have had their patience tested all throughout. The original case was filed in 2005.  This decision was published today (2/23/12), seven years later.  In the end, the wife is deemed to be a “vexatious litigant” by the state and is sanctioned for several different reasons.  She is sanctioned among other things for “a postjudgment order awarding sanctions against her for appealing an order awarding sanctions against her.” Oh, the irony.  The wife also served process on her husband (even though a non-party needs to) and forged the signature of a made up person on the proofs of service.  And got caught.  She also feigned illness trying to get a continuance and when it didn’t work, walked out of court.  

The transcript when she feigns illness follows:
THE COURT: Why don’t you have a seat, please.
[KATHEY]: I’m extremely ill, and as a matter of fact I’m taking some nitroglycerin right now. And I would appreciate it if the Court could continue this, because I cannot continue. I’d like to take this pill and then call 911.
THE COURT: Would you have a seat, please, Ms. Fyke.
[KATHEY]: In a minute.
THE COURT: Would you have a seat, please, Ms. Fyke.
[KATHEY]: Can you give me a minute to take this, please.
THE COURT: Ms. Fyke, I would like you to have a seat, please. Would you do that “ [KATHEY]: Can you give me ten seconds?
THE DEPUTY: Ms. Fyke, would you please have a seat.
[KATHEY]: Just a minute, Your Honor. I just dropped the pills.
THE COURT: Ms. Fyke, I would like you to sit down, please.
[KATHEY]: I will. I will, Your Honor.
THE DEPUTY: Ma’am, could you please have a seat.
THE COURT: Ms. Fyke.
[KATHEY]: I need to take a pill.
THE COURT: You can sit down.
[KATHEY]: They’re all falling out.
THE DEPUTY: Please sit down. Sit down and clean it up, please.
[KATHEY]: Your Honor, I need to go. I need to–I’m–I apologize. I’m not feeling well. I’m in distress right now. I‟m supposed to call 911. Could I please–I‟m not feeling well. My doctor gave you her phone number if you wanted to confirm with her. I don‟t understand why I had to be drugged [sic] through this. I had a lot–
THE COURT: This is a hearing on the Respondent’s motion to continue the trial.
[KATHEY]: And I should have—
THE COURT: Is that matter submitted?
MS. YATES-CARTER: Yes, Your Honor.
[KATHEY]: And I should have an opportunity to, um, to address it and deal with–and I gotta go, Your Honor. I’m sorry.
THE COURT: Do you–
[KATHEY]: Can I please be excused?
THE COURT: Do you want to submit this matter for decision?
[KATHEY]: No. [¶] I’ve got other information I wanted to share with you about the status of the computer.
THE COURT: Could we have the parties sworn, please.
THE CLERK: Please stand and raise your right hand.
[KATHEY]: I‟m not doing this, Your Honor. I’m sorry. I’ve asked for whatever is there, um, I apologize, um, I can’t. You’re welcome to call my doctor, but I, um, I’m having severe chest pains. The nitro’s not kicking in and, um, I need to go take care of this. I apologize.
THE COURT: Okay. Can I–can I get–Ms. Fyke.
[KATHEY]: Could you–do you have emergency–
THE DEPUTY: Are you telling me you have chest pains right now, strong chest pains?
[KATHEY]: The nitro didn‟t–
THE DEPUTY: Would you like me to call 911? I don‟t want you to fall over. Sit down.
THE COURT: Ms. Fyke, would you cooperate, please cooperate with the Deputy and sit down. Ms. Fyke, cooperate with the Deputy and sit down.
THE DEPUTY: Do you want me to call emergency medical assistance, 911? Ms. Fyke, do you need emergency medical assistance?
[KATHEY]: I want to call my doctor.
THE DEPUTY: Do you want me to call 911, yes or no?
[KATHEY]: I’m sorry. I’m not doing this. I’m sorry.‟
“The transcript then reflects that Kathey left the courtroom”
“On May 7, 2008, Judge Lucas issued an order denying Kathey’s motion to continue the trial. In her order, Judge Lucas noted that neither of the physician’s notes Kathey provided prior to the hearing date included any information concerning physical or other limitations that would preclude [Kathey]’s participation.”

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Never married and he leaves you high and dry (Jane you ignorant slut)

What happens when two people live together like a married couple, never get married, then he leaves her one day with nothing.  Take this situation and add to the mix an eccentric character actor and a promiscuous girlfriend (who went on to live with Dick Van Dyke until her death).  The result is Marvin v. Marvin 557 P.2d 106 (Cal. 1976).  

Triola (who had taken on the last name Marvin–even though they weren’t married) argued that the two had made an oral contract whereby Lee Marvin promised to take care of her.  At trial evidence showed that Triola was far from monogamous and Lee was  The case went up to the California Supreme Court, which held that as long as the basis for the contract wasn’t meretricious consideration, California courts will enforce contractual agreements for care, support, and division of property in spite of a lack of marriage.  That said, the court hardly gave Triola what she deserved–awarding a judgment of just over 100k when she asked for 3.6 million.

This type of claim has come to be known as Palimony, which is a bit of a misnomer.  The aggrieved party may also pursue quasi-contractual claims such as quantum meruit or a claim of fraud instead or in addition to the contractual claim that was made by Triola.

In addition to muddying the family law waters, the case gave us this brilliant skit with Dan Aykroyd and Jane Curtin when SNL was still funny.

(If you are still offended by the heading to this article, you clearly didn’t watch the SNL skit above or have absolutely no sense of humor.)

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Litigation costs of powerpoint and video production probably headed to CA Supreme Court (Stupid)

Although I try to keep this blog full of more practical advice, this is more of a technical topic (sorry).

CA Code of Civil Procedure Section 998 generally penalizes a litigant for rejecting a settlement offer that is greater than what a judge or jury awards at trial.  Such a litigant gets penalized by paying the other parties costs after the date of the offer they rejected but shouldn’t have in hindsight.  I wrote about Texas adopting something exactly like our 998 to fix their litigation problems.  We’ll see how that works for them.  Note: Texas is turning to California for tort reform ideas.

This is where it gets technical.  What happens if you make a 998 offer, then make another 998 offer a month later, then the jury award is less than your second 998 offer?  Do you only get costs after the second offer…or do you get all your costs after the first offer?  Until last week, courts had always said that the second 998 offer destroys the first and that the litigant is only entitled to costs following the second offer.  Well, that was until the Second District Court of Appeals screwed everything up.  Their decision is contrary to all the case law out there.  The statute itself doesn’t give any direction.  So this case is prime for CA Supreme Court review.

In this case, these costs were incurred after the first offer but before the second:
The cost of the power point presentation:            $87,282.86  (How does a ppt cost 87k?)
The cost of editing video tape of a deposition:    $11,956
The cost of expert fees:                                        $188,536.86

Now you see why it makes a big difference.  That must have been one magical powerpoint for eighty-seven grand.  For $87k you get buy an overpriced 1966 Chevy Corvette or the Lee Harvey Oswald’s casket.  Ok, maybe those are bad examples, but $87k is a lot of money.

The actual lawsuit was about an electrical explosion caused by negligently cutting live electrical wires and leaving them unsecured and exposed.

Technical, boring, and the Court of Appeals screwed up.

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Filed under Civil Litigation

Recent stories worth reading

Caylee’s law:  Don’t report you child missing right away and it may be a crime in Georgia. 

Death Penalty:  State Senator writes the death penalty law, now sits on state supreme court and is trying to declare the law he wrote unconstitutional.  Yeah, that makes sense.

Stay Away From this Cop:  Officer James Peters of the Scottsdale Police Department was involved in a fatal shooting in 2002, 2003, 2005, 2006, 2006 again, 2010, and now 2012.  Oh and the suspect he shot was holding a baby.  Awesome.

Don’t get sexually assaulted in Houston:  Houston PD has a backlog of over 6,600 rape kits dating back into the 1980’s.  The LAPD had a similar problem of over 6,000 rape kits in its backlog, but it fixed that problem last year.

Proposed Arizona educator profanity law:  Because we don’t have enough crimes on the books already and it wouldn’t be ridiculously stupid to enforce, an Arizona state legislator has proposed to apply the FCC profanity rules to classroom educators.  No word on if teachers could still read The Catcher in The Rye aloud in class or not.

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Sometimes the law doesn’t make any sense but the result is alright (sex offender registration)

Sometimes the law doesn’t make any sense.  Sex offender registration is one of those areas of the law that is so bizarre most people wouldn’t believe it.  Any person convicted of any of the crimes listed in California Penal Code Section 290 need to register as a sex offender for life.

I have my own reservations about the sex offender registration system–in that it techincally isn’t a punishment even though it really is, due process protections are scarce, and there is no proven benefit to the whole scheme.  It just seems like a big punitive measure taken to make these peoples’ lives hell (which I suppose in some cases isn’t sooo bad). 

In this case a 37 year old man had sex with a sixteen year old girl.  He branded himself her “love coach.”  The shocker:  which of the following acts make the man subject to sex offender registry?

A) sending text messages saying: “Can you keep as a secret our secret” and “I missing you”


B) Having sex with a sixteen year old girl.

Well, I suppose my heading gives it all away, but statutory rape does not subject an offender to sex offender registry, while “annoying or molesting a child”  does subject this guy to lifetime registry.

If you feel like reading the opinion, here it is, complete with defenses such as “by texting a sixteen year old girl that I loved and missed her I didn’t mean to take advantage of her” and “Oh, I was just joking.”

Losing faith in humanity in 5,4,3,2………….

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Filed under Criminal Law

Tax Deductibility of Legal Fees (sometimes)

What legal fees are tax deductible?

Most Likely Deductible:
  1. Litigation related to doing or keeping your job.  (i.e. wrongful termination, wrongful discrimination, injury to reputation)
  2. Cost of collecting taxable spousal support.
  3. Portion of legal fees in divorce attributable to tax advice.  (Have your attorney itemize this.)
  4. Estate planning fees related to income property or general tax planning.
  5. Fees for recovering personal injury damages—if damages are taxable.
Probably NOT Deductible:
  1. Costs related to divorce and child support cases, except portion attributable to collecting taxable spousal support.  (Have your attorney itemize this.)
  2. Personal injury lawsuits unless taxable damages are recovered.
  3. Will contests.
  4. Title contests.  (However—add the legal costs to the tax basis of the property for when you sell the property later.)
The Bottom Line:
If it relates to collection or production of taxable income, it’s most likely deductible.  If it’s a business litigation expense it’s most likely deductible.  If it relates to tax advice or tax planning, it’s most likely deductible.  Your attorney should be able to itemize your bill upon your request.
The Bad News:
These expenses are miscellaneous expenses on IRS schedule A and are only going to help you if they are greater than 2% of your adjusted gross income (AGI). 

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Hybrids, Lawyers, and Opting-Out of Class Actions (too good to be true?)

Most people get postcards in the mail once in a blue moon saying they can opt-out of a lawsuit if they want.  Most people also don’t understand what a class action is, what opting-out really means and what their rights are. 
Class actions are lawsuits in which so many persons interests are implicated that it is impractical for all those affected to sue separately.  If the court certifies the class (generally gives their approval), then the class action lawsuit is binding on all those affected even if they don’t participate.  So, even if you never step into court, the case can affect your rights and prevent you from suing later on your own. 
Under Federal law, class actions seeking damages have to give class members (like you and I) a chance to opt-out.  This means having an opportunity not to be bound.  If one opts-out they will not receive any benefit from the suit and also won’t be bound by it.  Under California law, class actions seeking damages do not have to, but MAY give class members a chance to opt-out.  It is within the judge’s discretion whether or not notice and a chance to opt-out should be given.
Heather Peters bought a Honda Civic Hybrid.  The sticker on her new 2006 hybrid Civic looked a lot like the one to the left.  (The sticker if for a 2007).  Recently someone started a Federal class action lawsuit against Honda, claiming that the real world mileage of the Honda Civic Hybrid is not anywhere near what was advertised.  An Edmunds forum has some reviews by owners claiming they get between 29-35 mpg.  Heather Peters received one of those postcards telling her about her right to opt-out.  She did.  She then sued Honda in small claims court in Los Angeles.  She won $9,867.  If she had stayed in the class action she probably would have gotten some coupons good for the next time she buys a Honda, while the lawyers involved are looking at around $8.5 million if they succeed (oh great!).  Heather’s class action is getting a lot of press coverage and is going to be pretty problematic if Honda Civic Hybrid buyers all opt-out and sue separately in small claims courts across the country.  Frankly, our courts can’t handle the number of cases they are currently facing and Honda’s litigation staff will be stretched to its limits.  Time will tell if others follow Heather’s example.
Now, Heather is probably going to have to deal with an appeal and not everyone has a legal background like Heather, but next time you get one of those postcards in the mail think twice about opting out.  In the meantime I am going to opt-out of buying a hybrid. 

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