Each year the
California Courts of Appeal issue approximately 3,500
written opinions resolving civil appeals. Of these, only about 160
cases per year (15%) are published.
reserved for those cases that
concern important issues of law. Once published, these cases
become the law of the State of California, and are binding on trial
court judges. These opinions are cited by attorneys and by other
courts as authority for legal principals, and attorneys rely on these
cases in providing advice to their clients.
handle appeals that become
published opinions have done more than advocate on behalf of their
client. They have litigated questions of law for which there
no clear answer. Win or lose, these attorneys have contributed to the
understanding and development of the law and have assisted the Courts
of Appeal in carrying out one of its most important public functions.
Of the many civil
appeals that Herb Fox
has litigated through to a final written opinion, eleven have been
published. Two of these case were accepted for review and resolved by
the California Supreme Court. To read the full text of these
opinions, just click on the case titles.
California Supreme Court
v. Clark (2002) 28 Cal.4th 89
circumstances is a caretaker of
an elderly person disqualified from receiving gifts under a will that
the caretaker helped the elderly person draft? Here the
Court reviewed and interpreted, for the first time, a statutory scheme
designed to limit the ability of caretakers, attorneys and other
fiduciaries from benefiting under wills drafted by those who may be
unduly influenced (Probate Code §21350 et. seq.)
of Griswold (2001) 25 Cal.4th 904
What should happen
when a person dies
without a will, and half-siblings who did not even know that they had a
brother until after his death, claim rights to
Supreme Court held here that the half-siblings had a right to a portion
of the estate of a brother whom they never met and did not know existed
until after his death.
Courts of Appeal
Estate of Lira (2012) 212 Cal.App.4th 1368
Under the Probate Code, a will or trust instrument can be set aside if a beneficiary is related to a person (such as an attorney) who drafted the will or trust, except if the transferor is related by blood or marriage to the beneficiary. But what happens if the transferor divorces before he or she dies, and so is no longer related to the beneficiary at the time of his or her death? The Court of Appeal answered that question in a case that became Herb's twelth published opinion.
Parks v. Safeco Insurance Co. (2009) 170 Cal.App.4th 992
what circumstances must an insurance company search its own records to
determine whether it issued a policy that might cover a
claim? Here, a 17 year-old minor whose parents were divorced,
tendered a claim under a policy insuring the home where her mother
lived. The insurance company denied coverage because the minor
actually lived with her father and grandmother. But the insurance
company failed to disclose that it had also issued a policy covering
the grandmother’s home. The Court of Appeal found that under
these unique circumstances, an insurance company has a duty to search
its own records for the existence of an insurance policy that might
cover the claim, and it affirmed a $3.2 million bad faith
Reyes v. Van Elk Ltd., Inc. (2007) 148 Cal.App.4th 604
have the right to sue for payment of minimum wages after performing
labor for the benefit of the employer? In this class action
on behalf of laborers on a public works project in Los Angeles, the
trial court found that workers who were not lawfully in the U.S. had no
right to enforce the minimum wage laws applicable to their job.
The Court of Appeal reversed, finding that disallowing undocumented
workers from enforcing their right to be paid lawful wages would only
encourage employers to hire and exploit them.
Kleveland v. Chicago Title Insurance Co.
(2006) 141 Cal.App.4th 761
Is an arbitration
clause in a title
insurance policy enforceable where arbitration was not mentioned in the
preliminary title report and where that report referred to a policy
that was different than that actually issued by the
insurer? The Court of Appeal found that under these
circumstances, the arbitration clause was not incorporated by reference
into the preliminary report and is not binding upon the insured.
Violante v. Communities Southwest Development
and Construction Company (2006) 138 Cal.App.4th 972
a subcontractor on a public works
construction project fails to pay its employees their lawful wages, can
the employees hold the prime contractor liable for the unpaid
wages? The Court of Appeal found that the prime contractor was
not liable for its subcontractor’s failure to properly pay
v. McCaw (2005) 125 Cal.App.4th 1494
arbitrates claims against his
employer arising from two contracts. One of these contracts
provides that any dispute be arbitrated by a panel of three
arbitrators; the other contract provides that only one arbitrator is
necessary. Here the Court of Appeal found that the right to a
three-member panel is substantial and cannot be modified by the trial
court, and reversed the arbitration award issued by a single arbitrator.
Ocean View HOA v. Montecito Water District
(2004) 116 Cal.App.4th 396
this California Environmental Quality Act
(CEQA) case, the Court of Appeal found that aesthetic concerns could
constitute a substantial environmental impact that required
consideration in the environmental review process.
v. Sandro (2002) 96 Cal.App.4th 1310
This case explores
the limits of the right
to appeal from a judgment that confirms an arbitration
Court of Appeal imposed $11,000 in sanctions against the appellant and
his attorney for prosecuting a frivolous appeal.
of Bryant (2001) 91 Cal.App.4th 789
case explores the scope of a trial
court’s discretion to allow a parent to
with her children notwithstanding the objections of the other
v. Demarais (1992) 11 Cal.App.4th 676
This real estate
disclosure case tested the
limits of the duties of a seller to disclose the existence of known
property defects in a commercial property transaction.