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Archives: Case study

Built on Bedrock

My principled approach delivers favorable outcomes for my clients.

When statutory text is clear, its plain meaning controls.

Appeal Strategy Courts of Appeal have disagreed about when a request for constructive trust constitutes a “real property claim” for lis pendens purposes. Although the statutory definition covers any cause of action that could “affect title” to real property, a line of cases had interpreted “real property claim” more narrowly for fear that plaintiffs can […]

Appeal Strategy

Courts of Appeal have disagreed about when a request for constructive trust constitutes a “real property claim” for lis pendens purposes. Although the statutory definition covers any cause of action that could “affect title” to real property, a line of cases had interpreted “real property claim” more narrowly for fear that plaintiffs can abuse lis pendens to gain settlement leverage. By relying on a Supreme Court opinion (Kirkeby) that had applied the statutory definition in a different context, I argued that the plain meaning of the definition controls.

My winning brief explained the bedrock principle underlying the appeal this way:

As Phangureh concedes, Kirkeby applies the definition of “real property claim” according to its plain meaning. Thus, a cause of action that could “affect … title … to specific real property” under that definition (§ 405.4) refers to a cause of action that could “’cause a change in'” that property’s title (Merriam-Webster’s Dict.). Phangureh also concedes that constructive trust, when directed at specific real property, does cause a change in that property’s title by compelling its transfer.

Result

In a published decision, the court agreed that the plain meaning of “real property claim” covers the Shokers’ constructive-trust request and thus the trial court erred in granting the motion to expunge. The opinion ensures that the properties will be available for the Shokers should they win at trial.

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A tort victim should be made whole.

Appeal Strategy The appeal presented a problem: no published case had held that a judgment creditor can recover damages beyond the prior judgment amount. In most fraudulent-transfer cases, the judgment creditor merely seeks a statutory remedy of voiding the transfer so the creditor can satisfy the judgment. In this case, Varum’s fraudulent transfer damaged Berger […]

Appeal Strategy

The appeal presented a problem: no published case had held that a judgment creditor can recover damages beyond the prior judgment amount. In most fraudulent-transfer cases, the judgment creditor merely seeks a statutory remedy of voiding the transfer so the creditor can satisfy the judgment.

In this case, Varum’s fraudulent transfer damaged Berger beyond the judgment amount because it left Berger unable to pay critical business expenses, which delayed key business events and increased his costs. The typical remedy for fraudulent transfer was insufficient to address these harms.

Justices, however, are hesitant to create new remedies. I overcame that hesitance by leveraging a bedrock legal principle: A tort victim should be made whole.

Here is how I articulated the bedrock principle in the winning brief:

The statutory remedies for fraudulent transfer are cumulative to common law remedies. And at common law, a fraudulent transfer is a tort. That means the basic principles of tort damages should apply: the tort victim should be made whole, and an egregious tortfeasor should be exposed to punitive-damage liability. After all, why should a fraudulent-transfer tortfeasor be treated any better than all other tortfeasors?

Result

In a published decision, the Court of Appeal agreed with my brief, reversed the judgment dismissing Berger’s complaint, and allowed him to seek consequential and punitive damages in the trial court.

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The right to testify is critical to prove credibility.

Appeal Strategy A frequent concern on appeal is waiver. In this case, by stating she had no further evidence to present, Almanza’s trial attorney might have waived her client’s right to testify. To counter this possible waiver, my opening brief asked the court to construe Almanza’s belated request to testify as an oral motion to […]

Appeal Strategy

A frequent concern on appeal is waiver. In this case, by stating she had no further evidence to present, Almanza’s trial attorney might have waived her client’s right to testify.

To counter this possible waiver, my opening brief asked the court to construe Almanza’s belated request to testify as an oral motion to reopen for further evidence. I then focused on the fundamental right to testify at a civil-harassment-restraining-order hearing. Allowing testimony is an essential part of due process so that each party can try to persuade the judge that they’re telling the truth.

My winning brief explained the credibility-enhancing aspect of testimony this way:

Generally, a party can prove credibility better with oral testimony than with written evidence. … And a judge’s credibility assessment is particularly critical in civil-harassment-restraining-order hearings, which often turn on differing accounts of heated incidents. The cases here are no exception, as the trial court repeatedly stated that they came down to credibility because “it’s a he said/she said.”

Result

The Court of Appeal ruled that the trial court had abused its discretion in refusing to let Almanza testify, and that her testimony might well have changed the result. The Court of Appeal then reversed, erasing the restraining order against my client Almanza and reviving her restraining-order request against Taylor.

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