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By definition, a joint tenancy is an interest in property in which each party has an equal share in the property. Joint tenants also enjoy the privilege of the right of survivorship, which allows a deceased joint tenant’s interest in a property to automatically pass to the surviving joint tenant(s). If the interest is transferred ... Read...
By definition, a joint tenancy is an interest in property in which each party has an equal share in the property. Joint tenants also enjoy the privilege of the right of survivorship, which allows a deceased joint tenant’s interest in a property to automatically pass to the surviving joint tenant(s). If the interest is transferred to a third party, a joint tenancy will be severed and convert into a tenancy in common, another type of co-ownership in California. This issue commonly arises in California partition actions along with other areas of family law and trust and estate law.
However, the law imposes certain requirements on severing a joint tenancy to ensure that joint tenants do not play games with the survivorship element of the joint tenancy. These rules require that the document severing the joint tenancy, usually a deed, is recorded during the lifetime of the non-surviving joint tenant.
If there were no rules requiring that the document severing the joint tenancy be recorded, a joint tenant could hand a deed to the property to their grantee (e.g., an heir, such as a child) and tell them to place it in a drawer then tell the grantee to record the deed only if that joint tenant dies before their other joint tenant(s). In this scenario, the joint tenant would evade the detriment of their estate losing an interest in the property upon their death.
Conversely, that joint tenant could tell their grantee to throw that deed in the trash if the joint tenant outlives the other joint tenant. In that scenario, the joint tenant would then become the full owner, thereby gaining the benefits of joint tenancy without having suffered the detriment of losing their interest had they died first.
California law has solved this problem by requiring all documents severing a joint tenancy to be recorded during the lifetime of the severing joint tenant or recorded within 7 days after the death of the joint tenant provided the severance was executed within 3 days before their death, i.e., a deathbed will.
This requirement is found in California Civil Code § 683.2 requires written evidence of the intention to sever the joint interest (usually a deed from the joint tenant to themselves as a tenant in common) signed by that joint tenant so long as one of the following two circumstances applies:
(1) Before the death of the severing joint tenant, the deed, written declaration, or other written instrument effecting the severance is recorded in the county where the real property is located.
(2) The deed, written declaration, or other written instrument effecting the severance is executed and acknowledged before a notary public by the severing joint tenant not earlier than three days before the death of that joint tenant and is recorded in the county where the real property is located not later than seven days after the death of the severing joint tenant.
California Civil Code § 683.2(c).
As one secondary source explains: “If the client’s decision to sever the joint tenancy is final, good practice requires prompt recordation of the severance. Otherwise, the attorney bears the risk of the severing client’s untimely death.”1 Cal. Transactions Forms–Est. Planning § 1:21
What this means is that an instrument unilaterally severing a joint tenancy with right of survivorship is not effective unless it is executed and notarized no earlier than three days before a deceased joint tenant’s death and recorded in the county where the property is located no longer than seven days after the death of this deceased joint tenant. Failure to meet one or both of these timelines will result in execution and/or recordation of an invalid deed. An invalid deed is insufficient to terminate a joint tenancy and a right of survivorship.
For example, in Dorn v. Solomon (1997) 57 Cal. App. 4th 650, 651, a widower who held property as “husband and wife, as joint tenants,” filed suit seeking declaratory relief and cancellation of a quitclaim deed as a result of the decedent spouse having “executed a quitclaim deed purporting to transfer the family home” where the defendant “did not record the deed until a month after [the decedent spouse] died….” Noting that “subdivision (c)(2) of section 683.2 explicitly provides that the deed must be recorded ‘not later than seven days after the death of the severing joint tenant,’” the court found that the deed “was invalid under this section.”
Furthermore, a joint tenancy cannot be terminated by a will. Rather: “A will that purports to terminate a joint tenancy is not an effective severance of the joint tenancy, and the other joint tenant retains the right of survivorship.” Miller & Starr, Methods and effect of termination—Termination by conveyance, 4 Cal. Real Est. (4th ed.) § 11:28 (citing Estate of England (1991) 233 Cal.App. 3d 1, 5–6)
Indeed, without these required timelines, joint tenants would be able to abuse their right of survivorship privileges. They would be able to transfer their interest to a third party, thereby severing the joint tenancy, but tell the third party to hold that deed. Then, if the joint tenant who gifted their interest to the third party dies first, the surviving joint tenant could rip up the deed, obtain the deceased joint tenant’s interest by way of rights of survivorship, and the third party would be left with nothing.
The experienced real estate attorneys at Talkov Law are skilled in the areas of:
Bankruptcy Exemptions in California Filing for Chapter 7 bankruptcy in California is a powerful tool that can relieve debtors of unsecured debts and provide a fresh start. Many people assume that bankruptcy involves creditors taking all their personal property, especially their home and vehicle. However, California bankruptcy exemptions allow debtors to maintain possession of certain ... Read...
Filing for Chapter 7 bankruptcy in California is a powerful tool that can relieve debtors of unsecured debts and provide a fresh start. Many people assume that bankruptcy involves creditors taking all their personal property, especially their home and vehicle. However, California bankruptcy exemptions allow debtors to maintain possession of certain personal property when filing for bankruptcy. While this guide provides a broad outline, it is important to contact an experienced California bankruptcy attorney who can guide you through the bankruptcy process and maximize your bankruptcy exemptions without making a costly mistake
A bankruptcy exemption allows a debtor to keep property that would otherwise be sold to pay creditors. For example, in Chapter 7, all property of the debtor is liquidated by a bankruptcy trustee to pay creditors. However, the Chapter 7 Trustee is not permitted to liquidate property of the debtor that will not produce a benefit to the bankruptcy estate. This means that if the value of the asset is lower than the amount of the exemption, the trustee will not sell the property, but will instead let the debtor keep that asset. Due to California’s generous exemptions, about 95% of bankruptcies are “no asset” cases where no assets are sold, creditors receive nothing, and the debtor keeps everything they own.
To file for bankruptcy in California, you must first meet the residency requirement by having lived in California continuously for at least 2 years prior to filing for bankruptcy. If you lived in more than one state during the last 2 years, speak to a bankruptcy attorney on how to file while maximizing your exemptions.
California is the only state that has two separate sets of exemptions, according to Nolo.com, but debtors are only permitted to pick one set. One set is known as the “704 Exemptions”, which are generally a better fit for those with substantial home equity. The second set of exemptions is known as the “703 Exemptions”, which allows for a “wildcard exemption.” This is usually a better fit for those who do not own real property or who have less home equity. Property is generally exempt up to a certain dollar amount, as specified in the applicable bankruptcy code for each set.
704 Exemptions, aptly named after Code of Civil Procedure Section 704.XXX, are most commonly used by homeowners with substantial home equity.
Under 704 Exemptions, debtors are entitled to protect the equity in their home under California’s recently updated homestead exemption. Between $300,000 and $600,000 (depending on the location of the home) in equity may be protected under the generous new homestead exemption. However, special rules apply as explained in our article on the California homestead exemption published in the Los Angeles Lawyer Magazine.
Vehicles are protected up to $3,325 (combined, for all vehicles). Cal. Code Civ. Proc. 704.010
These items are exempt if they are “ordinarily and reasonably necessary to, and personally used or procured for use by, the judgment debtor and members of the judgment debtor’s family at the judgment debtor’s principal place of residence.” Cal. Code Civ. Proc. 704.020. However, if an item is not “ordinarily found in a household” or it has “extraordinary value,” it may not be exempt.
Materials that are purchased in good faith to be used to repair, maintain, or improve a principal place of residence are exempt up to $3,500. Cal Code Civ. Proc. 704.030
Such items are exempt up to $8,725. Cal. Code Civ. Proc. 704.040
Health aids are exempt so long as they are “reasonably necessary to enable the judgment debtor or the spouse or a dependent of the judgment debtor to work or sustain health.” Cal. Code Civ. Proc. 704.050
Items such as “tools, implements, instruments, materials, uniforms, furnishings, books, equipment, one commercial motor vehicle, one vessel, and other personal property” are exempt up to $8,725 if they are “reasonably necessary to and actually used by the judgment debtor in the exercise of the trade, business, or profession by which the judgment debtor earns a livelihood.” Cal. Code Civ. Proc. 704.060. The exemption is twice that amount ($17,450) if both the debtor and the debtor’s spouse are in the same trade, business, or profession and require said items. This section also provides an exemption for a commercial motor vehicle in the amount of $4,850.
Debtors may exempt certain wages that were paid to him or her in the 30 days prior to the bankruptcy filing. Civ. Proc. Code § 704.070
$1,750 for single debtors, $2,600 for married debtors filing jointly. Cal. Code Civ. Proc. 704.080
$3,500 for single debtors, $5,250 for married debtors filing jointly. Cal. Code Civ. Proc. 704.080
Unmatured life insurance policies are completely exempt. The loan value of such policies, however, is only exempt up to $13,975. Cal. Code Civ. Proc. 704.100
703 Exemptions, also known as “wildcard” exemptions, may be a better choice for those who are more interested in protecting personal property and who don’t own a home. “Wildcard” refers to the ability to protect various forms of property that may not be protected under the 704 exemptions.
Anything that does not fit another exemption category or goes over the maximum exemption amount in that category may be exempted up to $1,550, plus any unused homestead exemption amount, adding up to $30,825 for single debtors as of 2021. Cal. Code Civ. Proc. 703.140(b)(5)
Exemption in homestead property is up to $29,275, though every dollar used on this exemption decreases the remaining available wildcard exemption. Cal. Code Civ. Proc. 703.140(b)(1)
Vehicles are protected up to $5,850 (combined, for one or more vehicles). Cal. Code Civ. Proc. 703.140(b)(2)
Items such as “household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments” may be exempted up to $725. Cal. Code Civ. Proc. 703.140(b)(3)
Jewelry that is “held primarily for the personal, family, or household use” is protected up to $1,750. Cal. Code Civ. Proc. 703.140(b)(4)
Health aids that are professionally prescribed are completely exempt. Cal. Code Civ. Proc. 703.140(b)(9)
Such items are protected up to $8,725. Cal. Code Civ. Proc. 703.140(b)(6)
Federal nonbankruptcy exemptions allow for retirement savings accounts (such as a 401(k) or 403(b)) to be completely exempt and for IRAs and Roth IRA’s to be exempt up to $1,362,800.
Unemployment, veterans’ benefits, disability, workers’ compensation, crime victims’ reparation benefits, and Social Security benefits are completely exempt.
Unmatured life insurance policies (other than credit life insurance contacts) are completely exempt. However, “any accrued dividend or interest under, or loan value of, any unmatured life insurance contract” is only exempt up to $15,650. Cal. Code Civ. Proc. 703.140(b)(8)
Note that this list contains only the most common exemptions. There are many others not discussed in this article due to their uncommon use by debtors in California bankruptcies.
Note that California is an “opt-out” state, meaning that anyone filing for bankruptcy in California is restricted to using only the California bankruptcy exemptions. Luckily, California’s bankruptcy exemptions are overall more generous than federal bankruptcy exemptions. Federal bankruptcy exemptions are not available to those who file for bankruptcy in California; however, federal nonbankruptcy exemptions (that is, federal exemptions that exist outside of the Bankruptcy Code) may still be available to certain groups of people.
Bankruptcy is a chance to start anew: a fresh start for anyone who may be in over their heads. The attorneys at Talkov Law understand that bankruptcy process can be confusing and grueling. We have provided this list of California’s bankruptcy exemption sets for you to review with an experienced bankruptcy attorney who can help you better understand your options. To speak with one of Talkov Law’s bankruptcy attorneys, call (844) 4-TALKOV (825568) or contact us online.
This blog post has been updated as of 07/30/21. Because the dollar amount of bankruptcy exemptions may change at any time, we cannot guarantee this information has been updated to accurately reflect the current exemption amount. Exemptions are extremely important in bankruptcy such that it crucial to have these matters reviewed by an experienced bankruptcy lawyer in California. Due to the damages that can result when an exemption is denied, this article is not intended for use by non-lawyers, bankruptcy petition prepares, self represented litigants or otherwise.
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Can an Attorney Be Sued for Representing a Client in Litigation? It may sound ridiculous, but attorneys (or their law firms) are sometimes tacked on as defendants in a complaint. Is this legal? Can another attorney do this? Talkov Law’s attorneys explain how anti-SLAPP law prevents this and the devastating legal repercussions of including a ... Read...
It may sound ridiculous, but attorneys (or their law firms) are sometimes tacked on as defendants in a complaint. Is this legal? Can another attorney do this? Talkov Law’s attorneys explain how anti-SLAPP law prevents this and the devastating legal repercussions of including a law firm to a list of defendants.
Anti-SLAPP statutes are meant to encourage public participation and prevent the justice system from being used as a weapon to prevent free speech. California’s anti-SLAPP statute states, in part, that: “it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Cal. Civ. Proc. Code § 425.16.
Furthermore, an anti-SLAPP motion must meet two distinct requirements: in the first step or prong, the defendant must show that the conduct underlying the plaintiff’s cause of action, or portions of the cause of action that are asserted as grounds for relief, arises from the defendant’s constitutional rights of free speech or petition. Cal. Code Civ. Proc. § 425.16(b)(1); see Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. In the second prong or step, the burden shifts to the plaintiff to prove that the plaintiff has a legally sufficient claim and to prove with “admissible evidence” a “probability” that the plaintiff will prevail on the claim. Navellier v. Sletten (2002) 29 Cal. 4th 82, 88–89.
These anti-SLAPP requirements include protection from attempts to silence or otherwise prevent attorneys from petitioning the government, a quintessential tenet of free speech. As Rutter explains, an “attorney giving advice to client and corresponding with opposing counsel were ‘unquestionably protected activities’ under the anti-SLAPP statute.” Litigation-related activities broadly protected, Anti-SLAPP Litigation (The Rutter Group) § 3:31 (quoting Contreras v. Dowling (2016) 5 Cal.App. 5th 394). Rutter quotes the 2016 opinion in Contreras v. Dowling (2016) 5 Cal.App. 5th 394, 409, as modified on denial of reh’g (Nov. 18, 2016), where the Court of Appeal made crystal clear that: “An attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike,” meaning that “allegedly tortious activity centered in defendants’ role as counsel was protected litigation activity.”
“A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 [special] motion to strike. ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. This includes qualifying acts committed by attorneys in representing clients in litigation.” Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App. 4th 141, 154. “In fact, courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ …Cases construing the anti-SLAPP statute hold that ‘a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.’ Consequently, because settlement negotiations are regarded as an exercise of the right to petition, communications during such negotiations are regarded as having been made in connection with the underlying lawsuit for purposes of section 425.16, subdivision (e)(2).” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14. Courts have even explained that: “The protection of the anti-SLAPP statute applies ‘even against allegations of fraudulent promises made during the settlement process.’” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14.
These authorities provide convincing arguments that most of what attorneys do in the course of representing a client should be deemed protected activity, thereby meeting the first prong.
On the second prong, the plaintiff bears the burden of “establish[ing] that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16. Lacking the “probability” of prevailing on the claim establishes the second prong, which allows a defendant to hold a plaintiff liable for attorney’s fees as the prevailing party on the Anti-SLAPP statute.
Filing an anti-SLAPP motion in response to a SLAPP complaint can be used not only to defeat the complaint, but also to hold the plaintiff liable for paying the entirety of the defendant’s attorney’s fees if the defendant prevails. In fact, the defendant’s attorney may even be entitled to a fee enhancement from the plaintiffs. Ketchum v. Moses (2001) 24 Cal. 4th 1122.
Furthermore, litigation-related activities fall under the scope of a privileged publication, which is a protected publication made as part of an official duty. California Civil Code § 47 defines a privileged publication as one that is made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
That statute makes clear that a “judicial proceeding” (aka a litigation-related activity) is considered a privileged, and therefore protected, activity.
Attorneys choosing to include another attorney who is doing his or her job as a legal professional must be aware of the consequences. Anti-SLAPP statutes strongly discourage suing attorneys or law firms, and there are dire consequences related to adding another attorney or law firm as a defendant in a complaint. If you have been sued while representing a client or are looking for more guidance on anti-SLAPP statutes, the attorneys at Talkov Law can help. Contact us today either online or by phone at (844) 4-TALKOV (825568)
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Navigating a deposition is one of the most intimidating things someone unfamiliar with the law can go through. Being pressured by opposing counsel to answer questions accurately down to the last detail is enough to make even the bravest souls break a sweat. Our experienced attorneys provide tips and tricks that can help you prepare ... Read...
Navigating a deposition is one of the most intimidating things someone unfamiliar with the law can go through. Being pressured by opposing counsel to answer questions accurately down to the last detail is enough to make even the bravest souls break a sweat. Our experienced attorneys provide tips and tricks that can help you prepare for a deposition.
The last thing you want to do in a deposition is volunteer information to the opposing side’s counsel. The more information you give them, the higher the chance that they will use this information against you and harm your case. The opposing side’s job during a deposition is to get as much information as possible – don’t hand it to them on a silver platter. Keep your answers succinct and ensure they answer the question you were asked.
This is perhaps the best piece of advice we can give someone going through a deposition. First of all, pausing allows the attorney to object. Note that a deponent should not object to questions; this is the attorney’s job. Second, this allows the deponent to make sure the question is complete. Lastly, a pause helps give deponents a moment to compose their answer. This lessens the chance of answering incorrectly or changing an answer, such as “yes, actually, no.” This type of answer severely decreases the credibility of the deponent. Also note that the court reporter will not record a pause or slow speech.
If you do not know the answer, it’s ok to say so. Don’t guess, speculate, play a hunch or try to answer something because you feel like you have to. It’s very likely that, if you mess anything up, it’s going to be trying to answer something you don’t know the answer to. Because a deposition is sworn testimony, say what you know to be true without avoiding giving testimony that you do know. You can also say something like, “I don’t know but my best estimate is x.” This allows you to provide an estimate without being held to anything specific.
By answering a question, it is presumed that you understood the question. Asking the other side to rephrase a confusing question is best.
Allow the attorney to finish the question completely before giving an answer. Again, this allows deponents to take their time before answering, thinking through their answer thoroughly and giving a level response.
Compound or double questions are not only confusing, but also not allowed in a deposition. Your attorney should object to such questions. The questioner is required by law to pose two separate questions in place of the single compound question to obtain the information sought.
Example: The compound question “Isn’t it true that the traffic light in your direction was yellow and you never struck your brakes?” should be broken down into “Isn’t it true that the traffic light in your direction was yellow?” and “Isn’t it true that you never struck your brakes?” with the opportunity for the deponent to respond to each question before moving on
Feel free to correct the opposing attorney on the record about any incorrect information implied by a question to create a clear record.
You cannot confer with your attorney while a question is pending, i.e., before you give an answer. If you need to speak with your attorney during the deposition, request a break or to use the restroom to prevent having the request to speak with an attorney on record.
Your attorney may object to a question in a manner that will assist in providing a clear and accurate answer. For example, if your attorney objects to a question on the basis that the question calls for speculation, this may cause you to consider whether or not you can accurately answer the question. Perhaps the question is whether the opposing party was unhappy about a particular action. Since you’re not the other person, you wouldn’t know whether they were unhappy or otherwise. Rather, all you know is what the other party told you. If the truth is that you do not know the answer to the question, you can answer “I don’t know.”
A deposition is meant to get a correct answer from deponents, not to test their memory, so a witness is allowed to review referenced documents before giving an answer. Seeing the document may help to refresh their memory. This also makes it clear that they are not trying to evade the question, but rather trying to ensure that their answer is correct.
If giving an estimate, don’t let the other side force into choosing an answer that you are not sure is correct. In other words, don’t allow the other side to restrict your answer.
Example: if you are asked how fast you were going, and you don’t know the exact speed, it’s ok to say you aren’t certain or to give an estimated range. If the questioner further presses and asks “would you say between 40 and 45 mph?” do not affirmatively respond unless you are confident that this answer is correct. Sometimes, being accurate requires admitting what you do and do not know.
Unsurprisingly, lawyers like asking questions that can be answered by a simple “yes” or “no.” Of course, an answer isn’t always this straightforward. It’s important to explain your answer when required to clarify your yes or no answer
Words like “always” or “never” are too definite and may lead to questioning of your credibility if the claims they support can be proven false. Saying something like “I don’t recall doing x” focuses on the present issue and preserves credibility
During a deposition, if an answer comes to you as to a question asked earlier, you are perfectly entitled to go back to the previous question and provide an answer during the deposition. If the answer doesn’t return to you until after the deposition, you may provide the answer to the question through counsel.
Example: “Do you remember when you asked me earlier about the date I was married but I couldn’t remember? Well, now I recall that it was August 15, 1987.”
The opposing counsel may ask questions that seem irrelevant or silly, but try not to appear annoyed by the questions or the deposition. Staying calm and giving honest, thoughtful responses to all questions is the best course of action.
Remember that communications between you and your attorney are privileged, meaning that what is discussed between you and your attorney is off-limits in a deposition. Do not answer any question asking for this type of information. Allow your attorney to object when such questions are asked.
This one goes without saying, but tell the truth! Nothing ruins a case faster than exaggerating, misrepresenting, or otherwise telling an untruth. Perjury (giving false testimony) is not only a crime but will also likely destroy your case. The opposing party probably doesn’t care about little details, but if you say something contradictory they will use this to undermine your credibility.
Nodding your head and saying “uh huh” or “nuh uh” may be commonplace in everyday communication but are of little use in a deposition. A deposition is transcribed by a court reporter, so everything must be said out loud. Testimony should be crystal clear so when the transcript is read the answer is obvious.
If you have questions about how to prepare for an upcoming deposition, you are not alone! The attorneys at Talkov Law have helped countless clients throughout the deposition process. To speak with an experienced litigation attorney at Talkov Law, contact us online or by phone at (844) 4-TALKOV (825568)
California’s Anti-SLAPP History Like 28 other US states, California has enacted an anti-SLAPP statute in its Code of Civil Procedure. The statute states that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or ... Read...
Like 28 other US states, California has enacted an anti-SLAPP statute in its Code of Civil Procedure. The statute states that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16.
The California Legislature enacted the anti-SLAPP statute in 1992 in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Cal. Code Civ. Proc. § 425.16. With the guidance of a dedicated anti-SLAPP attorney, California’s anti-SLAPP statute allows many citizens to exercise their right to free speech without being chilled by individuals or entities that disagree with them.
Prior to August 2016, California court authority was split on how to interpret the anti-SLAPP statute for a “mixed caused of action,” or an action that “combines allegations of activity protected by the statute with allegations of unprotected activity.” Baral v. Schnitt, 1 Cal. 5th 376 (2016).
Some courts followed what is known as the “Mann” rule, in which an anti-SLAPP motion was allowed only when a plaintiff’s entire cause of action would be dismissed.
“Published appellate court cases have concluded that where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct” Mann v. Quality Old Time Serv., Inc., 120 Cal. App. 4th 90, 103 (2004), disapproved of by Baral v. Schnitt, (2016) 1 Cal. 5th 376, 376.
In Baral v. Schnitt, the seminal case interpreting a mixed cause of action in anti-SLAPP cases, the court found that “an anti-SLAPP motion must be brought against a mixed cause of action in its entirety. It affirmed the denial of defendant’s motion because plaintiff established a probability of succeeding on claims based on allegations of activity not protected by section 425.16. This application of the anti-SLAPP statute unduly limits the relief contemplated by the Legislature.” Baral v. Schnitt, (2016) 1 Cal. 5th 376, 382.
Therefore, in such mixed claim causes of action, an activity that is not protected by the anti-SLAPP statute cannot merely provide the context in which a protected activity will be analyzed. The protected activity alone should analyzed to determine the validity of the claim.
“Thus, the ‘Mann rule’ encompasses the propositions that an anti-SLAPP motion may not be used to attack particular claims within a cause of action as framed by the plaintiff, and that the plaintiff can defeat the motion by showing a probability of prevailing on any part of the count, including allegations of activity that is not protected by section 425.16.” Baral v. Schnitt, (2016) 1 Cal. 5th 376, 385–86.
It is extremely important to know your rights when it comes to anti-SLAPP claims. A knowledgeable First Amendment attorney can help you understand the legal complexities of an anti-SLAPP motion, including public figure defamation suits brought without actual malice or relating to rhetorical hyperbole. Talkov Law’s skilled anti-SLAPP attorneys have been featured on news resources such as the Washington Examiner, the San Diego Union Tribune, and the Volokh Conspiracy for successfully contesting these frivolous claims. For a free, 15 minute consultation, contact Talkov Law online or by phone at (844) 4-TALKOV (825568).
The skilled business attorneys at Talkov Law practice in the areas of:
Objections to a Bankruptcy Trustee Hiring a Lawyer There is a common myth that an objection to a bankruptcy trustee’s application to employ an attorney (counsel) is only proper if the attorney is not “disinterested,” a concept similar to being conflicted out of the case. In other words, many believe that not having an interest ... Read...
There is a common myth that an objection to a bankruptcy trustee’s application to employ an attorney (counsel) is only proper if the attorney is not “disinterested,” a concept similar to being conflicted out of the case. In other words, many believe that not having an interest in the matter at issue is the only requirement of a bankruptcy trustee’s attorney.
However, this assumption is wrong. Rather, counsel for a bankruptcy trustee must show a benefit to the estate in addition to disinterestedness. Case law makes clear that: “Section 327(a) provides that court approval is necessary before a trustee can retain counsel. While the test of the disinterestedness of the attorney is one consideration for the court in determining whether to approve a trustee’s choice of attorney, nowhere in the statute is the court’s discretion limited to determinations of disinterestedness. Indeed, the purpose of § 327 is: ‘to insure in advance both that the person’s employment is necessary to the estate and that the person employed is disinterested and able to serve the best interests of the estate.’” In re Kurtzman, 220 B.R. 538, 541–42 (S.D.N.Y. 1998) (quoting In re That’s Entertainment Marketing Group, Inc., 168 B.R. 226, 229 (N.D.Cal.1994)).
“By its very nature, the ‘best interest of the estate’ under § 327(d) is a concept that affords the court considerable discretion in making evaluations and comparisons regarding the performance of counsel. In light of this discretion, the Court below was entitled to rely on its own first-hand observations and, based on those observations, to draw its own conclusions regarding professional performance. Here, the presiding judge was in a unique position to observe the conduct of counsel over a significant period of time, and to compare counsel’s performance with that of other attorneys performing similar work. The Court articulated and specified its concerns, which admittedly were of a conclusory nature, and afforded Appellant an opportunity to respond. Since the ‘right’ that Appellant seeks to vindicate rests in the final analysis with the discretion of the Court, we cannot conclude that the hearing afforded Appellant failed to meet constitutional standards.” In re Kurtzman, 220 B.R. 538, 541 (S.D.N.Y. 1998).
Accordingly, “disinterestedness need not be the exclusive test when evaluating the propriety of an attorney’s retention.” In re Vebeliunas, 231 B.R. 181, 194 (Bankr. S.D.N.Y. 1999).
One court applied this rationale to find that the proposed attorney was “ill-suited to serve as the trustee’s counsel because of his expressed prejudice against the debtor.” In re Vebeliunas, 231 B.R. 181, 195 (Bankr. S.D.N.Y. 1999).
Therefore, for a bankruptcy trustee’s choice of attorney to be successfully employed, counsel must not only be disinterested, but the employment of counsel must serve the best interests of the estate. If the trustee’s attorney would not benefit the bankruptcy estate, most notably its creditors, an objection to the employment is proper.
If you have further questions regarding a bankruptcy trustee employing counsel, contact a skilled bankruptcy attorney in Los Angeles, Orange County, San Diego, Riverside, San Bernardino, San Jose, Sacramento, and Surrounding Areas in California.
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