Firm Prevails in Employment Action, June 2011

SAN FRANCISCO, CA - Plaintiff-construction workers alleged they were employees and not independent contractors. The Firm represented the Defendants, property owners, who, after a four-week trial in the San Francisco Superior Court, not only defeated all of Plaintiffs' six causes of action but were awarded $250,000 against the lead Plaintiff on Defendants' cross-complaint for violations of the California Contractor Licensing Statute.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Our Recent Cases

Recent Preliminary Injunction in San Francisco (April 2012)

Getting a preliminary injunction at the start of a case is an uphill battle. The principles of the First Amendment and California's protection of free speech are so highly valued by the courts that asking for, what is called, a "prior restraint" is usually a doomed endeavor, even in defamation and false advertising cases. Yet, that is what we did.

An accounting firm in the San Francisco Bay Area came to us for help after they hired an accountant that departed from a competing firm. Almost immediately after the accountant separated from his prior firm, his old firm started a campaign to destroy his reputation, phoning and e-mailing clients, referral sources and trade organizations.

We started by filing a complaint in San Francisco Superior Court alleging defamation, invasion of privacy, intentional interference with prospective economic relations (between the new hire and the clients that might come over) and unfair competition/false advertising. When the damaging e-mails did not stop, we moved for a preliminary injunction.

We argued that the First Amendment's protections for false statements are not universal. See Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 762 (1985) (plur. opn. of Powell, J.). We noted that commercial speech that is false or misleading is not entitled to First Amendment protection and “may be prohibited entirely.” In re R.M.J., 455 U.S. 191, 203 (1982).

It was not the law that won the judge over. Rather, the egregious nature of the defendants campaign and the irreparable harm to plaintiffs' reputation so disturbed the judge that he remarked he "wanted to send a message" to the defendants that their conduct would not be tolerated. The judge issued the preliminary injunction preventing the dissemination of false statements, thereby achieving OWR's clients' litigation objectives in just over two months' time. The injunction was argued by Greg Wood and Kymberleigh Korpus, a new associate of the firm.

Other Cases

Hicks v. Yuen, Case No. 492236 (Cal. Super. Ct. 2011)
Practice Area: Labor, Employment and Real Estate Law
Outcome: Trial Win on Complaint; Trial Win on Cross-Complaint; Court of Appeal Win

San Francisco Superior Court and California Court of Appeals: In this matter independent contractors claimed to be our clients' employees and sought statutory damages for employment misclassification and for on-the-job back injury. We defended by proving that the contractors were not employees. We also cross-complained that the contractors performed certain work without a proper license under California's strict Business and Professions Code. After a four-week bench trial, the Court dismissed all of the contractors causes of action against our clients and awarded for us, and against the contractors, nearly a quarter of a million dollars on our cross complaint and all costs. Read the court's Statement of Decision. This matter was subsequently appealed by the Plaintiffs to the California Court of Appeal where we prevailed again on all issues.

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Dang et al. v. Williams & Williams Marketing Services, Inc. Case No. 449843 (Cal. Super Ct. 2011)
Practice Area: Real Estate and Business Transaction Litigation
Outcome: $0 Dismissal on All Causes of Action

Orange Superior Court: Plaintiff was the high bidder at a real property auction and sued the seller and auction company alleging that they wrongfully kept his deposit.  There was a cloud on title which was later cured but by that time the buyer’s financial condition changed and the buyer could not secure proper financing.  We convinced plaintiff’s counsel to dismiss the action without settlement

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Nguyen v. Drewniany, Case No. 132797 (Cal. Super. Ct. 2010)
Practice Area: Professional Defense
Outcome: $0 Dismissal on All Causes of Action

Santa Clara Superior Court: Plaintiff sold business assets to a Defendant-corporation and began to work for that corporation.  Disputes arose between Plaintiff and the corporation and the Plaintiff sued, naming in-part the corporation’s accountant.  Plaintiff in-part alleged the accountant breached duties owed directly to the Plaintiff, an employee and shareholder of the client but not a client of the Defendant accountant directly.  We filed a motion for summary judgment and settled the case for $0.

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Gu v. Williams & Williams Marketing Services, Inc. Case No. 497969 (Cal. Super. Ct. 2010)
Practice Area: Real Estate
Outcome: $0 Dismissal on All Causes of Action

San Mateo Superior Court: Plaintiff was the high bidder at a real property auction and sued the auction company after the seller decided not to sell the property.  We convinced Plaintiff’s counsel to dismiss the action without settlement.

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Youhas v. Walters & Kondrasheff, CPAs, Case No. CV 164423 (Cal. Super Ct. 2010)
Practice Area: Professional Liability
Outcome: Complete Dismissal on Demurrer

Santa Cruz Superior Court: Plaintiff, Thomas Youhas ran a business called Toy Science. Unbeknownst to Mr. Youhas, his bookkeeper was embezzling hundreds of thousands of dollars from his company. Mr. Youhas sued his accounting firm, Walters and Kondrasheff claiming that the accounting firm should have set up controls to catch his bookkeeper’s embezzlement. Mr. Youhas’ claims were ill-founded since the accounting firm was not hired to set up controls; rather the firm was simply asked to prepare taxes. Our firm represented the accountants and had the entire lawsuit dismissed on demurrer. We argued, and the court agreed that (1) Mr. Youhas' Unfair Competition claim improperly plead damages, (2) that Mr. Youhas' emotional distress causes of action failed to assert non-economic harm, (3) that Mr. Youhas lacked standing to bring the lawsuit because he was not the real party in interest, and (4) that all claims were barred by the statute of limitations.

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Mozingo v. Moreland and Davis Accountancy Corp., Case No. RG09470752 (Cal. Super. Ct. 2010)
Practice Area: Professional Liability and Intentional Torts
Outcome: $0 Dismissal on All Causes of Action

Alameda Superior Court: In this case the Plaintiff accused her former accountant and CPA of conducting a ponzi scheme and defrauding her of hundreds of thousands of dollars. After conducting discovery, we were able to negotiate a $0 dismissal of all causes of action against our clients.

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Bologna v. Moreland, Case No. RG09446726 (Cal. Super. Ct. 2009)
Practice Area: Contract, Business Transaction Litigation, Negligence, Intentional Torts
Outcome: Judgment for $2.1 million

Alameda Superior Court: Unbeknownst to the Plaintiff, his partner, the Defendant, Mr. M. Weldon Moreland, ran a multi-million dollar ponzi-scheme. When the scheme collapsed in early 2009 the defrauded investors sought compensation, but Mr. Moreland had lost the great bulk of their money. Meanwhile our client, the Plaintiff, while not a direct investor in Mr. Moreland’s scheme, did buy a business from him, a Livermore accounting firm. That business was purchased by the Plaintiff without any knowledge of Moreland’s ponzi operation. And since many of the defrauded clients also happened to be clients of the Livermore accounting firm, the business was threatening to collapse. We represented the Plaintiff against Mr. Moreland seeking a remedy for fraud, negligent misrepresentation, and rescission of the Livermore accounting firm’s purchase agreement. The Court found against Mr. Moreland on all counts, rescinding the business purchase agreement and awarding the Plaintiff nearly $2.1 million in actual and punitive damages.

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Abarquez v. Stadtler, Case No. 350189 (Cal. Super. Ct. 2009)Practice Area: Real Estate Broker Defense
Outcome: $0 Dismissal on All Causes of Action

Alameda Superior Court: Plaintiffs sold a home and residential care facility business to a buyer, who allegedly delayed in getting the licenses needed to run the business.  We represented the real estate broker and agent representing the buyer and settled the case for $0.

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Fuller v. Moreland, Case No. VG09464185 (Cal. Super. Ct., 2009)
Practice Area: Professional Liability and Intentional Torts
Outcome: $0 Dismissal on All Causes of Action

Alameda Superior Court: In this case the Plaintiff accused his former accountant and CPA of being involved in a ponzi scheme. After conducting discovery, we were able to negotiate a $0 dismissal of all causes of action against our clients.

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Chin v. Buyers & Sellers Preferred Realty, Inc., Case No. CIV 477516 (Cal. Super. Ct. 2009)
Practice Area: Real Estate
Outcome: Law & Motion Win

San Mateo Superior Court: In this case Plaintiffs sued our client, a real estate agent, claiming that as a result of malpractice, the agent had caused a real estate deal to fall through. We defended the agent, took discovery and moved for summary judgment. We prevailed on that motion, dismissing the case in full.

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Cal.-Nev. Annual Conference of United Methodist Church v. San Francisco, 173 Cal. App. 4th 1559 (2009)
Practice Area: Land Use, Real Estate, and Writ Practice, and Appeals
Outcome: Trial Court Win; Court of Appeals Win

San Francisco Superior Court and California Court of Appeals: The City of San Francisco designated a Church on Clay and Larkin Streets a landmark. The Methodist Church and property developer (our client) objected to the landmarking designation, and sued under authority of a writ, arguing that landmarking the Church was beyond the City's jurisdiction. The trial court agreed, issuing the writ to stop the City. The City appealed but the Court of Appeal affirmed the trial court's decision 3-0, in a published decision, killing the City's authority to landmark. Click here to read the Court of Appeal's Decision.

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Jimenez v. Flanders, Case No. 624467 (Cal. Super. Ct. 2009)
Practice Area: Professional Liability Litigation
Outcome: 0$ Dismissal on All Causes of Action

Stanislaus Superior Court: In this case Plaintiffs alleged that our client had improperly prepared tax returns. Soon after we took the Plaintiffs' expert's deposition it became clear that their expert had an entirely confused understanding of tax law. It turned out that our clients, the Defendants, had correctly reported the Plaintiffs tax position all along, and that it was the Defendants amended tax returns (prepared by the same Plaintiffs’ expert) that were in error. Subsequently, we were able to negotiate a full dismissal of the case without going to trial nor having to engage in motion practice of any kind. Our client paid $0 to the Plaintiff for a full dismissal of all causes of action.

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HNM Properties, Inc. v. Jurman, Case No. 80193 (Cal. Super Ct. 2008)
Practice Area: Professional Liability
Outcome: $0 Dismissal on All Causes of Action

Santa Clara Superior Court: In this family dispute concerning the sale of real property between one family member and another, the Defendants sued their accountants alleging that their accountants advised them that the sale price was fair.  We represented the accounting firm and settled the case for $0.

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Schuler v. Schuler, Case Nos. A119125 & A119472, 2008 WL 4968003 (Cal. Ct. App. Nov. 24, 2008)
Practice Area: Real Estate and Appeals
Outcome: Law & Motion Win; Appellate Court Win

Alameda Superior Court and California Court of Appeals: This was a 25 year old ongoing case wherein a daughter took and kept title to her mother's house, without her mother's consent. The mother, our client, sued and won right to title of her house, but the daughter appealed arguing that due to a technical issue, the judgment, issued in 1982, was never "officially" entered. We took over the case in 2007 and argued under a special motion known as nunc pro tunc, that the old 1982 judgment should be entered retroactively so as to restore the mother's right to her Oakland property. The trial judge and eventually, in a unanimous ruling, the court of appeal agreed.

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Levy v. Seiberlich, Case No. A120212, 2008 WL 4726456 (Cal. Ct. App. Oct. 29, 2008)
Practice Area: Complex Business Litigation, Arbitration, and Appeals
Outcome: Arbitration Win; Law and Motion Win; and Appellate Court Win

Alameda Superior Court and California Court of Appeals: One professional sold his practice to another but the deal fell apart. The parties first tried mediation but that failed too. The matter was finally resolved in arbitration but the opposition, still unsatisfied, removed the controversy to the California Superior Court. In response we successfully moved the Court to enter the arbitration award as a final judgment. The opposition appealed. We prevailed, yet again on appeal by arguing that the arbitration award was final and binding and that the arbitrator violated no law in coming to his final decision.

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Thomson v. Harris, Case No. 453838 (Cal. Super. Ct. 2008)
Practice Area: Real Estate
Outcome: Trial Court Win

San Francisco Superior Court: The Plaintiff sued our client, for fraud, conversion, and other related torts involving a residential real estate transaction. The matter when to a bench trial where the Court determined that our client was not guilty of any wrongdoing and issued a complete judgment against the Plaintiff an for our client, on all causes of action. Under a contractual provision located in the sale document, the Court further ordered the Plaintiff to pay all of our client's attorneys fees and costs.

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Levi-Sanchez v. Excelsior Construction Co., Case No. CGC-04-437454 (Cal. Super. Ct. 2008)
Practice Area: Professional Liability (Architect)
Outcome: Law and Motion Win and Full Dismissal

San Francisco Superior Court: The Plaintiff sued our client, an architect, for allegedly drawing up bad architectural plans for the Plaintiff’s house. We moved to dismiss the case and the Law and Motion Judge granted our motion. We thought that was the end of the case until a different party in the action, a fellow Defendant, cross-complained against us and brought us back in. Soon thereafter, we participated in a mediation which was ultimately successful in settling the case and dismissing the suit. All parties paid some settlement monies to Plaintiffs, except for our client who was released from the action for a payment of $0.