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November Litigation Updates

SBEMP Wins in Court of Appeals For Morningside Community:
Court Denies Anti-SLAPP Motions

Plaintiffs and Respondents, homeowners in the Morningside community in Rancho Mirage, challenged an amendment to their homeowners association covenants, conditions and restrictions (CC&Rs) that imposed a $250 monthly assessment against non-members to subsidize the costs of maintaining The Club at Morningside members-only golf and tennis club in the residential desert community. The Club’s members were not required to pay the new assessment.Plaintiffs sued several defendants, including appellants The Morningside Community Association and its directors, the Club at Morningside and its directors, and Peters & Freedman LLP, and David M. Peters, lawyers for the Association.

Defendants responded by filing Anti-SLAPP motions.

Slovak Baron Empey Murphy & Pinkney LLP represented the Plaintiffs and Respondents. The trial court denied Defendants’ anti-SLAPP motions, and the Court of Appeals recently affirmed. Shaun Murphy opposed the anti-SLAPP motions in the trial court and Wendy Dowse handled the appeal.

Click here to read the whole story.


Lis Pendens; What happens after trial?

Under California Code of Civil Procedure sections 405.1 et seq. a claimant with a real property claim of probably validity may file and record a lis pendens in the County where the property is located. (CCP § 405.20). At any time during the pendency of the action, any person with an interest in the property may apply to the court in which the action is pending for an order expunging the lis pendens. Prevailing on the merits of the plaintiff’s claim does not automatically expunge the lis pendens.

Expungement of the lis pendens must be made by noticed motion in accordance with CCP section 405.30; Mix v. Sup. Ct. (2004) 124 Cal.App.4th 987, 996. Mix held that on motionby the defendant following a determination of the claimant’s right to title, the lis pendens shall be expunged, unless the trial court finds that its own decision is likely to be overturned on appeal. The decision to expunge the lis pendens, however, must be made by noticed motion and does not occur automatically by entry of judgment. Similarly, the expungement cannot be included as part of the final judgment, because there is no right to appeal the expungement of a lis pendens. “Decisions on motions to expunge lis pendens fall into that class of trial court orders which are expressly not appealable; intermediate appellate courts only reach them via petitions for writ of mandate. See CCP § 405.39. “No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate.”

Thus, if your client prevails on a real property claim involving a lis pendens, be prepared to file a motion for expungement to have it removed. The order expunging the lis pendens may not be recorded until the time period for filing a petition for writ of mandate under CCP § 305.39 has expired.


Changes to the State’s Rules of Professional Conduct

The Supreme Court of California has approved a series of changes to the state’s Rules of Professional Conduct. It is the largest comprehensive set of rule changes in California in 29 years.

Since March 2017, the State Bar of California has asked the Supreme Court to approve 70 new or amended rules. The court ultimately approved the rules, modifying 42 of those proposed. All of the new rules became effective November 1, 2018.

Here are two stand-outs, that took a lot of time and debate according to the ABA Journal:

Rule 1.2.1: Duties of lawyers when advising clients on breaking the law, which the high court had sent back for revisions to its comments. Among other things, the approved commentary guides lawyers on advising clients on state laws that may conflict with federal or tribal laws—a likely reference to California’s legalized marijuana industry.

And, among California’s new rules is a controversial one: Rule 8.4.1, prohibiting discrimination, harassment and retaliation by attorneys. It gives lawyers at law firms the responsibility to advocate for corrective action if they know of harassing or discriminatory conduct by the firm or its personnel. This permits the State Bar of California to open an investigation into the prohibited behavior without a finding from another agency. The rule was “the subject of intense debate during drafting.”


With locations in Palm Springs, CA, Princeton, NJ, and Manhattan, NY, SBEMP’S Litigation practice group offers a wide range of specialized litigation services for private sector companies, public agencies and individuals. Our litigators represent clients in an array of civil disputes, including: intellectual property, personal injury, complex business and real estate, trusts and estate, construction defect, owner, contractor/sub-contractor disputes, eminent domain and condemnation, homeowners’ association and hospitality, partnership disputes, tribal, healthcare, first amendment, and defamation.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

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