Greg M. Smith Included in the 2025 Edition of the Best Lawyers in America®

The Maloney Firm APC is pleased to announce that Greg Smith has been recognized in the 2025 edition of The Best Lawyers in America®.

 

Best Lawyers in America 2025 Edition

  • Gregory M. Smith

Since it was first published in 1983, Best Lawyers has come to be regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 94,000 industry-leading lawyers are eligible to vote (from around the world), and Best Lawyers has received over 11 million evaluations on the legal abilities of other lawyers based on their specific practice areas worldwide. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

 

Congratulations to Greg Smith on his inclusion in this year’s edition!

Susan Freedman Joins the Maloney Firm APC

We’re thrilled to announce that Susan Freedman has joined The Maloney Firm APC as a senior associate attorney. With extensive courtroom experience, Susan’s practice focuses on business and real estate litigation.

 

Susan is skilled in representing entity and individual clients in the full range of general commercial matters in state court from inception through trial. Her practice includes representation of commercial and residential property owners in a wide variety of litigation, such as breach of lease/contract and wrongful foreclosure, as well as actions involving fraud, partnership and business tort disputes, breach of fiduciary duty, partition actions, and corporate governance and management issues. Susan has experience in obtaining and defending against writs of attachment, temporary restraining orders, and injunctive relief orders.

 

After graduating from Loyola Law School, Susan served as a law clerk to a United States Bankruptcy Judge, Hon. Samuel L. Bufford, Central District of California, and thereafter represented secured and unsecured creditors in bankruptcy, particularly governmental taxing authorities. Susan has represented the Counties of Los Angeles, Santa Barbara, Sonoma, Orange, Riverside, and San Bernardino in the enforcement of property taxes in U.S. Bankruptcy Court. She has participated in dozens of complex commercial cases to verdict and has vast and multifaceted experience.

 

When she’s not practicing law, you can find Susan cooking, strength training, or traveling with her family.

The Uncivil War Raging Before the California Courts

Professionalism and civility are increasingly being recognized as essential components of legal proceedings. Two recent California Court of Appeal cases, Medallion Film LLC et al. v. Loeb & Loeb (2024) 100 Cal.App.5th 1272 (“Medallion”) and Masimo Corp v. Vanderpool Law Firm, Inc., G061829 (Cal. Ct. App. May 2, 2024) (“Masimo”) join a growing archive of higher court cases in which judges openly criticize the erosion of professionalism in legal proceedings. From pre-litigation communications to the discovery process, these cases demonstrate the detrimental effects of incivility on attorney discipline and financial outcomes. Whether incivility accompanies the loss of motions, sanctions, or even the reduction of an award, recent California Court of Appeal rulings suggest a growing intolerance of poor behavior in litigation. Increasingly, the higher courts are emphasizing that civility is not just a moral obligation, but a professional one that carries significant penalties for failure to comply.


Incivility and Prelitigation Communications


In 2014, the Medallion plaintiffs entered into an agreement with William Sadleir of Clarius Capital Group to assist in obtaining funding for film projects, receiving a fee from the funds raised through their contacts. Clarius agreed not to interact independently with these contacts. When Sadleir allegedly created another entity with the assistance of Loeb & Loeb to secure funding from BlackRock (a Clarius contact), the plaintiffs objected. The plaintiffs emailed BlackRock directly seeking payment of the consulting fee, and Loeb & Loeb responded, denying all legal ties between Clarius and the new entity. The assertions in the Loeb & Loeb letter later proved to be false, prompting the plaintiffs to sue Loeb & Loeb. Loeb & Loeb cited the litigation privilege, among other defenses, to the Anti-SLAPP motion. Initially, the trial court sided with Loeb & Loeb, but the Court of Appeal reversed this decision, finding the plaintiffs had shown a likelihood of success at trial as the claims were not protected under the litigation privilege.


Among other issues, Masimo underscores the ramifications of poor prelitigation communications. Litigation communications must be factual and made in good faith, and Loeb & Loeb’s defense was unsuccessful in part due to the lack of credible, upfront communications. The justices cited the Loeb & Loeb partner’s “bombastic and disproportionate response to an email not even directed to his client” in their decision, claiming the letter was not “made in good faith and serious contemplation but an attempt to dissuade the plaintiffs from making any further inquiries.” The inclusion of this in the published opinion indicates the court believes civility and honesty are not just about good manners, but also crucial to maintaining the integrity and efficiency of legal proceedings.


Challenges to Civility in the Discovery Process


Masimo v. Vanderpool concerns a discovery dispute and the failure to comply with document production requests. During litigation, the Masimo plaintiffs encountered significant and repeated resistance to the discovery process with defendants and their attorneys, the Vanderpool Law Firm (“Vanderpool”). Vanderpool objected on behalf of their clients to Masimo’s discovery requests based on various grounds (i.e., lack of standing, pending criminal matters, and violation of constitutional rights). Despite an agreement reached on behalf of a discovery referee to provide more comprehensive responses, Vanderpool continued to object without substantiation. Shortly after serving supplemental discovery requests, Vanderpool filed forms to withdraw as counsel for the defendants in the underlying case. Masimo then renewed its motion to compel and requested sanctions against all three initial defendants, as well as the Vanderpool Law Firm.


Vanderpool mounted a defense by arguing they had substituted out from the case and could therefore not be found liable for the lack of discovery response. The court rejected this argument, noting that “Vanderpool indisputably advised defendants to stonewall Masimo’s discovery efforts not once but twice, the second time after promising to provide substantive answers.” The court also rejected Vanderpool’s claim that Masimo did not meet and confer before filing their motion to compel discovery, adding that Vanderpool was the one to refuse to meet and confer: “After dodging letters and emails, Vanderpool finally made its refusal to meet and confer explicitly in an email: ‘Your remedy is elsewhere, and an attorney with your billing rate should know that. We are not here to educate you.”


Much of the court’s decision centers on the lack of courtesy in Vanderpool’s discovery communications. Immediately after citing Vanderpool’s snarky email, the court laments that it has “in the past had occasion to deplore the lack of civility that has flourished in the legal profession in recent decades,” and cited several other recent decisions that trace “the deterioration in the way attorneys now address and behave toward each other” (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127; Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293).


The facts of this dispute were not in Vanderpool’s favor. However, it is impossible to ignore the lasting impression the tone of Vanderpool’s communications had upon the court. The decision cites the “condescending email [Vanderpool] sent to Masimo’s counsel,” the subject line of another email, which read “You are joking right,” and Vanderpool’s assertion that “In 30 years of practice this may be the stupidest thing I’ve ever seen. . . Quit sending us paper.” Of the 11-page decision, two and a half pages are devoted to the topic of civility. Incivility, the justices argue, is a form of bullying that gums up the work of the legal process and costs people money.


Promoting Civility in the Litigation Process


The Medallion and Masimo decisions underscore a broader call within the legal community for a return to more civil behavior. Measures such as the State Bar’s “Civility Toolbox,” and a requirement that new lawyers affirm to “dignified conduct” in their oaths have been implemented in recent years. Though incivility alone does not necessarily lead to attorney discipline (yet), higher court decisions continue to demonstrate the financial impact incivility can have, including a reduction of the prevailing party’s attorney’s fees award due to lack of civility (See Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908).


Lawyers must bear in mind that their behavior not only reflects their own character but also serves as a reflection of the legal profession and the judicial system at large. The California Court of Appeal has consistently affirmed that professional courtesy is both an ethical and statutory obligation. Whether manifested through impolite prelitigation communications or discovery gamesmanship, the California courts emphasize the significance of civility in maintaining the effectiveness of the legal process. The key message for business litigation is evident: ethical and civil legal approaches represent the smoother path towards an efficient and fruitful litigation journey. Attorneys and litigants must resist the temptation of unnecessary confrontations, prioritizing professionalism for the benefit of their mental well-being and financial interests.


Patrick Maloney is Now Certified by the California State Bar in Legal Malpractice Law

We are excited to announce that Patrick Maloney has been officially certified by the California State Bar as a Specialist in Legal Malpractice Law. This achievement reflects Patrick’s extensive experience in handling legal malpractice cases and his commitment to delivering top-notch legal services to our clients. This certification strengthens our firm’s dedication to upholding the highest standards in legal representation.

California State Bar Certified Specialists

The California State Bar’s Certified Specialist Program acknowledges attorneys who have exhibited exceptional dedication to a specific area of law and possess experience that surpasses standard licensing requirements. Established as the first program of its kind in the United States, the program seeks to improve public protection, promote attorney competence, and ensure clients receive high-quality legal representation in specialized fields.

Achieving certification as a legal malpractice specialist signifies a strong dedication to quality, competence, and extensive experience. To earn this esteemed recognition, Patrick Maloney successfully navigated a demanding evaluation process, which included examinations and peer reviews, to showcase his expertise in handling complex legal malpractice cases. This achievement places Mr. Maloney among an elite group of attorneys who have satisfied the State Bar’s stringent criteria, highlighting his expertise in this challenging area of law.

The Maloney Firm’s Commitment to Excellence

Patrick Maloney’s certification reflects our firm’s commitment to providing outstanding legal services that consistently meet and exceed our clients’ expectations. This recognition means enhanced expertise in legal malpractice claims, reassuring clients that their matters are handled by a State Bar-recognized professional. Mr. Maloney’s achievement also provides further evidence of The Maloney Firm’s efforts to deliver top-quality legal representation and maintain our clients’ trust in handling complex legal cases.

The Spence-James Spar Reminds Us Contracts Are Key

By Gregory M. Smith, Esq.


Although boxing is a global sport in which participants can generate fortunes in a single night, those in the business recognize that boxing a small community where deals are often based on long-standing relationships. More than occasionally, this leads to handshake deals or poorly drafted contracts prepared by unsophisticated parties.


A pair of recent lawsuits filed between former world champion Errol Spence Jr. and his trainer, Derrick James, underscore the ways a verbal agreement can lead to problems. The lawsuits, both filed in Dallas County, Texas, on April 17, 2024, each allege that for 29 bouts over 11 years, James trained Spence and, pursuant to an oral agreement, Spence paid James 10% of his purse money.


James’ suit (No. DC-24-05605) alleges that following Spence’s July 29, 2023 bout against Terrence Crawford, Spence paid James only $350,000–less than 2% of the $25,000,000 Spence earned for the bout. James alleges that the shortfall caused him to question whether or not he had actually been paid 10% of Spences full earnings for any of his prior pay-per-view bouts. James’ suit also alleges that he is due at least 5 million dollars, from not only the Crawford fight, but also, Spence’s prior fights with Mikey Garcia, Shawn Porter, Danny Garcia, and Yordenis Ugas.


The account in Spence’s lawsuit (No. DC-24-05598) is not materially different, but it alleges that the agreed upon 10% was never to be calculated from Spence’s total pay for any fight, but only from his fight purse. Spence’s suit does not seek damages from James, only a court order confirming his interpretation of the parties’ oral agreement.


At this point, with no evidence or testimony, it is impossible to know who might win the pending lawsuits. However, it is clear that this situation could have been avoided with a well-written agreement that specified not just that Spence would pay James 10%, but more specifically what that 10% would be calculated from – guaranteed purse or total compensation. A well-written agreement might also have provided the parties with audit rights so that disputes as to how much money Spence actually receive for each bout could be resolved without heading to court. Although James and Spence would have each paid modest legal fees to have such an agreement drafted, they will certainly each spend several times more money on their lawsuits.


Gregory M. Smith is a business litigator who often presents professional boxers. He is general counsel for Canelo Alvarez, and has represented champions, including Sugar Shane Mosley, George Kambosos Jr., Franchon Crews-Dezurn, Andy Cruz, and Luis Nery, and contenders including Filip Hrgovic, Edgar Berlanga, Richardson Hitchins, Xander Zayas.

California Court of Appeal Reminds LLCs and Title Companies to Do Their Due Diligence

The California Court of Appeal recently reversed a trial court’s decision in a real estate fraud case involving a two-partner limited liability company. The court’s decision underscores the importance of conducting thorough title research in real estate transactions and the potential liability of the escrow agents and title companies involved in these transactions. The case demonstrates that thorough research, diligent documentation, and proactive legal counsel are essential to preventing disputes and protecting clients’ rights in the event of litigation.


The Facts


Sam v. Kwan et al., 4/19/24 CA2/8 (Cal. Ct. App. 2024) concerns a dispute between Anthony Sam and Renee Kwan, who formed a limited liability company (“2013 LLC”) to buy a parking lot. Sam and Kwan were named as the company’s managers. Kwan’s company owned 49% of the LLC. Sam controlled three other companies that owned the remaining 51% of the company. 2013 LLC bought a parking lot in 2014, and Sam signed two recorded documents in the parking lot’s chain of title identifying himself as the company’s manager.


The business relationship between Sam and Kwan deteriorated. In 2015, Kwan negotiated the sale of the parking lot to the Board of Fire and Police Pension Commissioners for the City of Los Angeles (“Board”) for $3.8 million. The Board used a law firm as outside counsel and First American Title Company (“First American”) as the title insurer and escrow agent for the real estate transaction.


Sam alleged this sale was done without his knowledge, and that Kwan had “fabricated” and “forged” documents to remove him from the LLC. Sam sued Kwan, her companies, First American, and the Board after discovering the sale of the parking lot. He claimed Kwan fraudulently removed him from the company and pocketed the sale proceeds. The trial court ruled in favor of the defendants on various pretrial motions, effectively denying Sam a legal remedy.


The Court of Appeal affirmed some of the trial court’s rulings but reversed others, finding that the trial court erred in granting summary judgment in favor of the Board. The court held the Board’s title research was deficient because of the inconsistences between the recorded documents and the version of the operating agreement provided by Kwan.


The Board’s attorney’s failure to carefully review the title report and recorded documents was a major factor in the Court of Appeal’s decision. The ruling also demonstrates the potential liability of escrow agents and title companies in real estate deals. While First American was not the focus of the ruling, the case serves as a reminder of the critical role these entities play and the legal obligations they have.


Key Takeaways


This case serves as a cautionary tale for real estate investors, business partners, and the professionals who advise them. Thorough title research, careful attention to corporate governance, and robust legal protections can help prevent disputes and minimize the risk of litigation. Attorneys must be diligent in reviewing title reports and other recorded documents, and they must be alert to any inconsistencies or red flags that could lead to problems.


The ruling also calls attention to the potential for fraud within LLCs and how difficult it is to prove fraudulent intent. When relationships within an LLC break down, disputes often lead to litigation. To avoid disputes, attorneys advising business partners must direct their effort to best practices for internal governance and documentation. Additionally, this case shows the difficulty of proving fraudulent intent. Though Sam’s allegations may have been believable, they did not meet the high legal standard for pleading a claim for fraud.


For individuals involved in complex real estate transactions and limited liability companies, Sam v. Kwan ruling provides valuable insights. Thorough research, careful documentation, and proactive legal counsel can help prevent disputes and position clients for success if litigation arises. As the stakes continue to rise in the world of business law, attorneys must be vigilant in their practice and committed to the highest standards of professional excellence.

Colby A. Meagle Joins The Maloney Firm

We are thrilled to announce the addition of Colby A. Meagle to The Maloney Firm’s team of experienced litigation attorneys. With her diverse legal background and artist’s sensibility, Colby will provide innovative solutions for our clients across various industries and practice areas.

 

Colby’s experience spans employment litigation, business law, intellectual property, and dispute resolution. She has represented fashion, entertainment, startup, and corporate clients in trademark, copyright, wage, business matters, and beyond. Her specialized knowledge of art law has seen her work on behalf of artists, galleries, collectors, and arts organizations.

 

When she’s not practicing law, Colby can be found exploring museums, spending time at the beach, or pursuing her own artistic interests. She is a graduate of Pepperdine University School of Law and Elon University, where she studied Fine Arts.

 

Incisive Review of Hybrid Fee Agreement Saves Clients $700K in Dispute

A “hybrid” fee refers to any combination of fees for legal services. Among these fee arrangements are contingency fees, flat or fixed fees, success fees, retainers, and hourly fees. The Maloney Firm regularly handles fee disputes resulting from poorly drafted contingent fee agreements. We also counsel law firms and prospective clients while negotiating fee agreements to ensure they are fair and enforceable.


In recent years, we have seen an uptick in matters disputing the calculation of contingent fees. This is no doubt a result of how complicated contingent fee arrangements have become. Some fee disputes now include “negative” contingent fees (i.e., the fee earned is based upon how much money the attorney saves the client), ambiguous fee agreements (i.e., where the terms are difficult to understand and are more likely to be disputed by parties later), contingent fee agreements covering multiple matters, and more.


In late 2023, a group of clients who had been involved in a partnership contacted Patrick Maloney with a dispute over the amount of legal fees that were owing under a hybrid fee agreement into which they had entered. In this instance, the parties’ hybrid fee agreement called for a reduced hourly fee and a contingent fee. While the fee agreement provided the lawyers would receive a fee calculated on the value of the recovery, the agreement did not carefully and adequately define how this contingent fee would be calculated if the settlement included the purchase and sale of business interests – a common settlement in business disputes.


The underlying matter involved a dispute between partners who jointly owned a business. They settled their dispute when one side agreed to purchase the other’s interests in the business. Based solely on the sales price, the lawyers claimed a contingent fee of nearly $1 million. In calculating the fee they claimed, the lawyers ignored the value of the business interests the clients gave up in the settlement.


The Maloney Firm’s careful review of the legal fee agreement uncovered errors in its drafting. Typically, when preparing fee agreements, lawyers contemplate their client may enter a settlement through which they receiver non-monetary consideration. In those instances, the lawyer and client typically agree to a valuation methodology. But lawyers less frequently prospectively address how to determine a contingent fee when the parties enter a settlement with a more sophisticated structure, such as the purchase or sale of business interests, supply contracts, or any other form of business resolution. The fee agreement the Maloney Firm’s clients entered simply referred to “economic value” and “recovery value.” This allowed the Maloney Firm to argue the client had received no “recovery value” because the clients simply sold their business interests for the same amount they had paid for those interests.


Relying upon relevant statutes and case law to demonstrate the flaws in the lawyers’ retainer agreement and arguments, Mr. Maloney negotiated a settlement saving the clients nearly $700,000. Best of all, this significant victory was obtained without the burden and expense of protracted litigation. 


Successes such as these highlight the importance of properly defining how contingent fees will be calculated. A lack of clarity in fee agreements can result in significant monetary discrepancies and potential exploitation by attorneys. To ensure fair and enforceable fee agreements, consult with attorneys experienced in the nuances of contemporary contingent and hybrid fee agreements. For more information on the proper drafting of contingent fee agreements or for help with fee agreement disputes, contact Patrick Maloney and subscribe to The Maloney Firm’s newsletter.

Electronic Signature on Arbitration Agreements? Not So Fast

Hasty v. AAA and Unconscionable Arbitration Agreements  

Arbitration agreements may be invalidated if they are found to be unfair or oppressive towards a disadvantaged party. The determination of whether an arbitration agreement is unconscionable is based on both procedural factors (how the agreement was made) and substantive factors (the terms of the agreement itself). To be valid, employment arbitration agreements should include voluntary and informed consent, adequate notification, clear and easily understandable language, and other essential elements. A recent case heard by the California Court of Appeal suggests that employers should take particular care with the presentation of arbitration agreements to their employees, especially considering the possibility that these agreements may be viewed and signed on electronic devices of various sizes and formats.

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Aljarice Hasty was hired by the American Automobile Association (“AAA”) as an insurance sales agent in March 2019.  Hasty’s verbal offer did not include any reference to an arbitration agreement, but she later received an offer letter which stated that she would need to sign an arbitration agreement the “first day of her employment.”  Prior to starting her job with AAA, Hasty received an email with a link to a Workday, a “new hire onboarding portal,” containing electronic forms, including an arbitration agreement. Because Hasty did not have a desktop or laptop computer, she used her phone to view and sign the Workday documents in the application.

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When Hasty later sued AAA for discrimination, harassment, retaliation, and wrongful discharge, AAA moved to compel arbitration pursuant to the arbitration agreement that Hasty had electronically signed in Workday. The trial court found the arbitration agreement was valid, but also that it was unconscionable and therefore unenforceable.  AAA appealed. The Court of Appeal affirmed the trial court’s ruling.

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The Court of Appeal found that Hasty had plenty of time to review the agreement and consult with an attorney before filing. Because of this, the court ruled the arbitration agreement did not contain elements of oppression. However, the arbitration agreement did contain elements of surprise, largely due to the manner in which it was presented to Hasty. The court found the that the arbitration agreement—when viewed through the Workday platform on a mobile phone—was dense, difficult to read, and contained an excess of legal jargon.

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A handful of elements were cited by the court as examples of the agreement’s procedural unconscionability. Firstly, no alternative means of presentation was presented to Hasty for viewing and signing the arbitration agreement—whether physically, or through a different device. Additionally, the presentation of the documents through the Workday platform lacked instructions on how to view the agreement and allowed for an employee to click “I Agree” without first viewing the arbitration agreement. Finally, the signature statement in Workday simply refers to a “document” without mentioning the arbitration agreement specifically, therefore creating ambiguity as to what document is being signed.

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The court also found that the arbitration agreement was substantively unconscionable. The court found several one-sided provisions, including a hidden waiver of remedies and relief from a charge filed with a governmental administrative agency. It also required a confidential arbitration, which may prevent employees using previous findings to prove a pattern of discrimination and discourage employees to pursue claims in the first place. The arbitration agreement also contained a waiver of representative claims, which is unconscionable because it requires an employee to waive what is an unwaivable claim in California.

Key Takeaways

Hasty has several implications for businesses employing personnel in California. In order to ensure an arbitration agreement is enforceable, employers should seek to maintain consistency and transparency in all stages of employee onboarding. Other areas of concern for California employers:

  • The elements of all offers should be consistent regarding deadlines and requirements for viewing and signing an arbitration agreement.
  • Electronically delivered arbitration agreements must be handled with particular care, and employers should ask employees ahead of time if they have access to a computer or, if not, if they will be viewing the arbitration agreement on a mobile phone. In the absence of an available computer, alternative arrangements for viewing and signing the arbitration agreement should be made (either by physical examination or through the use of another device).
  • Third party vendors of software that will be used for processing employee paperwork should be checked to determine if it complies to the presentation and transparency requirements of California law.
  • Employers should not depend upon third party vendors to be up to date on the nuances of arbitration agreement conscionability under California law
  • Employers must check and review all employee paperwork on a variety of screens to ensure the legibility of documents is of good quality before sending to an employee.
  • Employers should consider offering alternative options for the viewing and signing of employment agreements.

To ensure the enforceability of arbitration agreements, California employers must consider the craft of the agreement as being of equal importance to the clarity of its presentation.

Media Mention: Patrick Maloney Weighs in on High Stakes RICO Claim in Law 360

Patrick Maloney was quoted in a recent Law 360 article detailing the latest round of a dispute between rival developers and the applicability of California’s Environmental Quality Act (CEQA) to a high stakes RICO claim. The matter before the 9th Circuit Court of appeals concerns Los Angeles hotel developer Relevant Group LLC’s appeal of a lower court’s decision that a rival developer was shielded from racketeering claims by CEQA’s Noerr-Pennington doctrine.


Relevant Group’s appeal drew a response from a coalition of environmental interest groups. The groups argue the California Legislature has sought to balance CEQA to allow for public participation in the environmental review process. Overturning the lower court’s ruling and allowing for an exception to the Noerr-Pennington doctrine might have a chilling effect on individuals thinking about filing future CEQA complaints.


Patrick Maloney praised the environmental interest group’s brief in comments to Law360 Thursday, underscoring that Relevant should bring its concerns about the CEQA process to the California Legislature instead of the courts. Read the full article on Law 360 here.