Following a multi-day bench trial, on December 6, 2018, the Hon. Gerald Rosenberg entered judgment for Maloney Firm client DelMorgan & Company in the matter of DelMorgan & Company v. Le Jolie LLC.
In December 2015, web-based retailer Le Jolie LLC sued DelMorgan & Company, its investment bankers and advisors, for failing to raise the $3 million in equity funding the company wanted. In the lawsuit, Le Jolie LLC sought $55 million in lost profits.
In November 2018, DelMorgan & Company hired Patrick Maloney as trial counsel. After hearing witnesses and evidence in the Santa Monica Courthouse, Judge Rosenberg ruled that La Jolie had failed to establish any of the claims it asserted against DelMorgan, and that DelMorgan had earned the entire advisory fee paid by Le Jolie.
During the trial, La Jolie presented two expert witnesses who attempted to testify that DelMorgan had not provided services as promised, resulting in the demise of Le Jolie. The Maloney Firm established that Le Jolie had never been profitable and that its principal had falsified documents on which the experts relied. It was also established that the company had not actually gone out of business, but had instead continued the same business model, with the same staff, at the same location, all under a new name. Based thereon, the Firm succeeded with motions to deem the expert testimony unreliable.
Having rejected the claims by Le Jolie, the Court found that DelMorgan had met its obligations to Le Jolie and was entitled to retain all of the fees it earned during its representation of Le Jolie.
Patrick Maloney may be reached at firstname.lastname@example.org or 310-347-4601.
The Maloney Firm, APC is pleased to welcome Lisa Von Eschen as a partner and Chair of the Firm’s Employment Practice Group.
Ms. Von Eschen adds depth and experience to the firm’s employment law practice. She counsels businesses and non-profit organizations on employment law compliance issues, including exempt classifications, leaves of absence, payroll, discipline, grievances, terminations and reductions in force. Her practice includes advising companies and executives on employment contracts, commission and bonus plans, restrictive covenants, trade secret and confidentiality issues, and severance agreements. She routinely drafts and audits personnel policies and handbooks, leads internal investigations, and conducts preventive training sessions on harassment and other employment topics.
When employment disputes cannot be prevented or resolved, Ms. Von Eschen does not hesitate to litigate her clients’ matters before administrative bodies and courts. Formerly a partner with Latham & Watkins LLP, she has more than twenty-five years of commercial litigation experience. In employment matters, her expertise extends to individual discrimination and wrongful termination cases, as well as systemic discrimination and wage and hour class actions. She has conducted successful trials in both the California federal and state courts, and argued (and won) appellate victories before the California and Ninth Circuit Courts of Appeal.
She earned her undergraduate degree with honors at College of William and Mary in Williamsburg, Virginia. She received her Juris Doctor degree from New York University School of Law.
Ms. Von Eschen can be reached directly at 310.347.4603 or at email@example.com.
2018 has been a big year for legal developments affecting employers. Not only has Governor Brown been hard at work signing new legislation, California courts and the United States Supreme Court have ruled on important issues that permeate employment law. Our employment team has put together a review of the laws that took effect as recently as July 1st, the ones enacted at the beginning of the year, and an update on proposed bills being discussed in the state legislature.
Click to read the Mid-Year Employment Law Review
The Maloney Firm is proud to announce that Greg Smith has been named a 2018 Rising Star in Southern California Super Lawyers Magazine.
This is the third consecutive year that Greg has received this distinction which is bestowed on only the top 2.5% of attorneys who are under age 40.
By Vanessa Willis, The Maloney Firm, APC
Under the Labor Code Private Attorneys General Act of 2004 (PAGA), an employee is required to provide written notice to the employer and the Labor and Workforce Development Agency (LWDA) before filing a lawsuit. The purpose of this notice requirement is to provide the LWDA with the opportunity to decide whether to investigate a case before an employee may file a civil lawsuit on his/her own.
In Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, a former employee alleged that his employer failed to pay final wages immediately upon termination, and that his final paystub was inaccurate. He filed a suit on behalf of himself and other employees who had been similarly situated. However, his PAGA notice to LWDA and to the employer referred only to his individual claims and made no mention of any other Labor Code violations; moreover, it did not reference any other current or former employees besides himself.
The court granted summary judgment in favor of the employer in a PAGA lawsuit on the grounds that the employee failed to provide a legally sufficient PAGA notice. The Court of Appeal affirmed this decision in January 2018. The Court of Appeal held that the employee’s PAGA notice was legally inadequate because the employee had brought a representative PAGA claim but his notice referred only to the plaintiff himself.
This case represents a procedural victory for employers and stresses the importance of reviewing PAGA notices for accuracy. Recently, courts have been strictly applying the PAGA notice requirements set forth in the statute as a mandatory procedural prerequisite. Employers (and their counsel) should carefully review any PAGA letters to see whether any similar inadequacies may potentially invalidate PAGA claims.
Congratulations to Patrick Maloney for being named to the 2018 Southern California Super Lawyers list, an honor bestowed upon only 5% of attorneys. This is the fourth consecutive year that he has been honored.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional
achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by
practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
2018 Employment Law Updates
By Vanessa Willis, The Maloney Firm, APC
The State of California and our local governments have enacted a wide range of employment-related laws that took effect on January 1, 2018, and a few that will take effect during the year. Below is a brief summary of five of the new laws that we believe are most relevant and likely to impact businesses. Please do not consider this list to be comprehensive. In efforts to remain compliant with these new laws, please review this information carefully and please update your policies and procedures accordingly.
Samantha Botros and Bud Davis joined The Maloney Firm as law clerks during the past summer. We are excited to announce that after receiving their Bar results in November, they are now Associates with the firm. Please join us in welcoming them!
Samantha can be reached at 310.347.4693 or firstname.lastname@example.org
Bud can be reached at 310.347.4692 or email@example.com
THE MALONEY FIRM OBTAINS COURT OF APPEAL REVERSAL OF ADVERSE RULING ON ANTI-SLAPP MOTION
On August 24, 2017, the California Court of Appeal for the Second Appellate District issued an opinion reversing an order dismissing claims asserted by a client of The Maloney Firm, APC and vacating an order that the client pay attorneys’ fees. Carl I. S. Mueller prepared the appellate briefing, and Patrick Maloney argued the matter to the Court of Appeal.
The appeal stemmed from the trial court’s erroneous order that a cross-complaint filed by The Maloney Firm was brought in retaliation against the plaintiff for filing suit, thereby violating California’s Anti-SLAPP statute. The Court of Appeal reversed the trial court’s order, holding that the trial court misapplied the legal doctrine upon which the trial court’s ruling was based. In short, the Court of Appeal held that the fraudulent behavior on which the cross-complaint was based was not protected by the First Amendment and thus not insulated by the Anti-SLAPP statute. As a result of the Court of Appeal’s ruling, a fraud claim that the trial court had erroneously dismissed has been reinstated and the client is relieved of responsibility to pay his adversaries’ legal fees.
The entire ruling can be found here.
California Court of Appeals Clarifies Procedure for Seeking Costs Under CCP § 998 During Arbitration
By Carl Mueller, The Maloney Firm, APC
In Heimlich v. Shivji, the California Appellate Court Appellate Case No. H042641, the California Court of Appeal recently clarified the procedure for both seeking an award of costs pursuant to Cal. Code of Civil Procedure (“CCP”) § 998 during arbitration and how to seek those costs from the California Superior Courts should an arbitrator refuse to enforce CCP § 998.
Alan Heimlich, an attorney, brought suit against Shiraz M. Shivji for unpaid legal fees. After approximately a year of litigation and after Mr. Shivji had made a settlement offer under CCP § 998 for $30,000, Mr. Shivji successfully moved to compel the case into arbitration proceedings per an arbitration clause within his retainer agreement with Mr. Heimlich. The arbitration was conducted with AAA, and per the terms of the arbitration provision, “in accordance with California law.”
After the arbitrator issued a final award finding that neither party owed the other any money, Mr. Shivji’s counsel sent an email to the arbitrator seeking guidance on the procedure for moving for costs under CCP § 998. The arbitrator refused to hear the motion for costs, as he claimed he “no longer had jurisdiction to take any further action in this matter.”
Mr. Shivji then moved for the Superior Court to confirm the arbitration award and for costs under CCP § 998. The trial court confirmed the arbitration award, but denied the request for costs, because “it was incumbent upon the defendant to raise the CCP issue with the arbitrator on a timely basis.” That is to say, the trial court ruled that Mr. Shivji should have sought costs under CCP § 998 before the arbitrator issued its decision determining that Mr. Shivji was entitled to costs under CCP § 998.
In its decision, the Court of Appeal found such a decision to be unjust, and concluded that both statutory and case law policies required that Mr. Shivji should be able to seek costs under CCP § 998. As such, the decision includes guidance on how a party to arbitration may seek costs under CCP § 998 without prematurely offering evidence of the offer:
Rather than requiring this party to violate section 998, subdivision (b)(2) by prematurely disclosing the existence of a rejected offer in arbitration proceedings, we believe a party’s section 998 request should be deferred until after the arbitration award is made. If and when a party makes a section 998 post-award request, an AAA arbitrator is empowered to recharacterize the existing award as interim, interlocutory, or partial and proceed to resolve the section 998 request by a subsequent award.
In addition, the Court of Appeal issued the following guidance for parties facing an arbitrator refusing to consider a motion for costs under CCP § 998, instructing parties to seek a ruling from the trial court charged with confirming the arbitration award:
We have concluded that the arbitrator should have reached the merits of Client’s post-award section 998 request by recharacterizing his final decision as an interim or partial final decision. We note that when a trial court vacates an arbitration award because the arbitrator refused to hear material evidence, the court’s power to remand the matter to the same arbitrator is limited. “If the award is vacated on the grounds set forth in paragraph (4) or (5) of subdivision (a) of Section 1286.2, the court with the consent of the parties of the court proceeding may order are hearing before the original arbitrators.” (§ 1287.) This restriction should not preclude [Mr. Shivji] from obtaining a decision on the merits of his section 998 request. If the parties in this case do not consent to a rehearing by the original arbitrator, the trial court is required un Pilimai to decide the Client’s section 998 request.
In short, the Court of Appeal ensured that the costs provision under CCP § 998 is available to parties in arbitration — at least those in AAA — notwithstanding whether the arbitrator will consider the request for fees.