The Equalizer

The Developing Law on No Contest Clauses in Estate Litigation

Effective January 1, 2010 and applicable to all cases where the will or trust was executed after January 1, 2001, the California statutes governing No Contest Clauses have been repealed and re-written. For anyone considering challenging a will or trust that contains a No Contest Clause, it is of the utmost importance to understand the new laws pertaining to challenges and to seek the advice of legal counsel who is experienced in estate litigation.

Many estate documents contain a provision known as a No Contest Clause. This clause provides that, if any person challenges – or contests – the terms of the document, that person will be disinherited or otherwise removed as a beneficiary. These are serious consequences and should be carefully considered when deciding whether to proceed with estate litigation. Often, estate planners recommend providing for greatly reduced bequests to potential challengers to make sure they face the risk of a financial loss in the event of a contest.

Prior to 2010, the Probate Code differentiated between direct contests and indirect contests. Direct contests are challenges to a will or trust based on forgery; lack of due execution; lack of capacity; menace, duress, fraud, or undue influence; revocation; and/or disqualification of a beneficiary in a fiduciary relationship to the testator/trustor. Indirect contests challenged the validity of a will or trust on grounds other than those provided by statute. In 2010, the legislature did away with indirect contests, and changed the standard for direct contests from “reasonable cause” to “probable cause.” In enacting the new laws, the Law Review Commission stated that “because forfeiture is such a harsh penalty, it is disfavored as a matter of policy. Accordingly, a no contest clause should be applied conservatively, so as not to extend the scope of application beyond what was intended.”

The result is that a No Contest Clause will only be enforced against a “direct contest” that is brought without probable cause. Probable cause exists “if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.” (California Probate Code §21311(b)) In discussing the change in the standard from “reasonable” to “probable” cause, the Law Revision Commission stated that that, in order to avoid enforcement of a No Contest Clause, the contestant must not only have proof of his or her factual contentions but must also have a “legally sufficient ground for the requested relief.” There must be a “reasonable likelihood” that the requested relief will be granted, and that term has been interpreted to mean “more than merely possible, but less than ‘more probable than not.’”

They may also be enforced in the event of a challenge against a transfer of property on the grounds that it was not the transferor’s property at the time of transfer, or a contest against the filing of a creditor’s claim. (Cal. Probate C. §21311)

The other substantial change resulting from the new laws is the repeal of Probate Code §21320, which had allowed parties to request an advance ruling from the court to determine whether or not the no contest cause will be triggered by a proposed pleading.

If you are concerned that your loved one’s will or trust was a forgery, was subsequently revoked, was the result of fraud, duress, undue influence, or is otherwise invalid, it is imperative that you seek competent legal counsel to avoid unwittingly triggering a No Contest Clause. The Boesch Law Group regularly handles estate litigation involving No Contest Clauses and can advise you of your options. Please contact one of our Los Angeles-based attorneys today at (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Will Seeking to Remove a Fiduciary Violate a No Contest Clause?

When a beneficiary of a trust is concerned that the trustee, or “fiduciary,” is breaching his or her fiduciary duty by failing to act in the beneficiary’s best interests or is otherwise abusing his position, the beneficiary can seek to have the fiduciary removed. However, the beneficiary may be concerned about triggering a No Contest Clause in the trust. No Contest Clauses generally provide that, if a beneficiary contests the terms of the trust, he or she will be disinherited or otherwise removed as a beneficiary. These are serious consequences and should be always carefully considered when taking any action to modify the terms of a trust.

Fortunately, the California Legislature has declared that any petition to remove a fiduciary will never constitute a “contest” so as to trigger the No Contest Clause – no matter what the trust document itself may state. (California Probate Code §21305) The courts have commented on the rule, stating, “a beneficiary should be able to question the actions of a faithless fiduciary without being subject to the restrictions of [a no contest] clause.” See Bradley v. Gilbert (2009) 172 Cal. App. 4th 1058. According to the Bradley Court, “a beneficiary who believes a fiduciary is engaged in misconduct should be able to bring the alleged misconduct to the court’s attention without fear of being disinherited.” Id. at 1071; see also, Estate of Ferber (1998) 66 Cal. App. 4th 244.

If you are a trust beneficiary and are concerned that the fiduciary trustee is breaching his or her duty, is improperly managing trust assets, or is otherwise acting improperly, you should seek the advice of an attorney who is experienced in trust disputes and estate litigation. The Boesch Law Group estate, trust, and probate litigation attorneys regularly represents trust beneficiaries and can provide you with the quality representation you deserve. For more information, please contact one of our Los Angeles-based estate attorneys today at (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Duty to Disclose Dangerous Condition of Property Runs to Real Estate Agents

In Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App 4th 1134, the California court of appeals recently held that real estate agents who are showing a property to prospective buyers, or their agents, have a duty to disclose dangerous conditions of which the seller’s agent has actual or constructive knowledge. In the above-stated matter, while being shown the property by the seller’s agent, the potential buyer’s agent was injured when she fell from an attic staircase. The buyer’s agent, the plaintiff, contended that she was injured due to a concealed dangerous condition of the property which was actually known or constructively known by the owner of the property and the listing agent because the dangerous condition had been previously disclosed to them pursuant to a property inspection report.

Noting that Civil Code Section 1714 provided that all people owe a duty of ordinary care to prevent injury to others, the appeals court found that a real estate agent for a property seller has a duty to notify any visitor to the subject property of any concealed dangerous condition of which the agent has knowledge or constructive knowledge. The appeals court further found that an agent’s actual or constructive knowledge is imputed to the property owner—an owner shares liability with an agent for damages proximately caused by the agent’s breach of duty.

Any real estate agent who knows (or should know) of a concealed dangerous condition on the property being shown, must inform any visitor, agent, or potential purchaser of that condition else the agent could be liable, along with the property owner, for any damages that are a result of the concealed condition.

The Boesch Law Group has a proven track record of success in real estate law and litigation matters. Should you have any questions, or need help with any real estate matter, please contact the Boesch Law Group for a free consultation.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

What Artist and Talent Managers Should Know About California’s Talent Agency Act: Part Two – Handling Disputes

In “What Artists and Talent Managers Should Know About California’s Talent Agency Act: Part One,” we discussed the differences between talent agents and managers and the ways that Talent Agency Act disputes can be avoided. Here we will discuss the potential results that come from a Talent Agency Act violation, as well as one exception to the act’s strict regulations.

Consequences of a Talent Agency Act Violation

If the Labor Commissioner or arbitrator finds that there has been a violation of the Talent Agency Act, he or she has three options. First, the decision-maker can completely void the parties’ contract. If the central purpose of the contract is found to be illegal, then the contract as a whole cannot be enforced. Voidance of the contract is not mandatory, but if the entire contract revolves around the solicitation and procurement of employment by the talent manager, then voidance is very likely. (Note that in many instances, even where the contract is voided, the arbitration clause – if there is one – requiring that the dispute be decided privately by an arbitrator, is not void and survives.)

If the contract merely contains an illegal provision, and the illegality is collateral to the main purpose of the contract, then the commissioner or arbitrator can order that the illegal provision be stricken from the contract. For example, in Marathon Entertainment, Inc. v. Rosa Blasi (2008) 42 Cal. 4th 974, in declining to void the parties’ contract, the court ruled that a personal manager who spends 99 percent of his time engaged in counseling a client and organizing the client’s affairs is not insulated from the act’s requirements if he spends one percent of his time procuring or soliciting; conversely, however, the 1 percent of the time he spends soliciting and procuring does not thereby render illegal the ninety-nine percent of the time spent in conduct that requires no license. See id. at 997. The court concluded, for the personal manager who truly acts as a personal manager, “an isolated instance of procurement does not automatically bar recovery for services that could lawfully be provided without a license.” Id. at 998.

Separately or in addition to voidance or severance, the commissioner can order the talent manager to disgorge the profits that he or she gained from the violation. In other words, if a talent manager solicits a television role for a client and accepts a ten percent commission on the amount the client makes per episode, he or she may be forced to return those commissions. As one can imagine, this can be disastrous to a talent manager who isn’t well-advised.

The “Safe Harbor Exception”

In 1982, the California Legislature amended the Talent Agency Act to impose a one-year statute of limitations, eliminate criminal sanctions for violations of the act, and establish a “safe harbor” for managers to procure employment if they do so in conjunction with a licensed talent agent. However, the exception has been interpreted very narrowly by the courts, and will “only apply if the unlicensed person is acting ‘in conjunction with and at the request of the licensed talent agency,’ and the only covered activity that such unlicensed person may engage in consists of ‘the negotiation of any employment contract.’” Massey v. Landis, TAC 42-03 (emphasis supplied). The safe harbor exception “does not extend to nor encompass activities which consist of approaching third parties and soliciting them to offer engagements to an artist.” Todd v. Meagher, TAC 13418.

Navigating the Talent Agency Act and responding to Talent Agency Act disputes requires the services of an experienced and knowledgeable attorney who is intimately familiar with entertainment law. The Boesch Law Group has extensive entertainment litigation experience, experience in advising clients how best to avoid Talent Agency Act disputes, and experience in dealing with such disputes as they arise – on behalf of managers, on behalf of talent, and as the decision-maker in a number of cases, including the leading case on the subject, Preston v. Ferrer (2008) 522 U.S. 340, where Mr. Boesch was retained by entertainment litigators on both sides of the dispute to arbitrate and decide the case. To speak to a Los Angeles-based attorney who can help guide you through the legal process, please call us today at (310) 578-7880 or email your inquiry.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

What Artist and Talent Managers Should Know About California’s Talent Agency Act: Part One – Avoiding Disputes

California law makes a significant distinction between talent managers and talent agents, oftentimes with dire consequences for those who, wittingly or unwittingly, blur the line between the two roles. California’s Talent Agency Act requires anyone who solicits or procures artistic employment or engagements for artists to obtain a talent agency license. Labor Code §1700.4, 1700.5. Talent managers who have “solicited” or “procured” work for their clients may find their contracts voided by the Labor Commissioner, and may even be required to return some or all of their earned payments.

“Artists” that fall under the act include, but are not limited to, actors and actresses, radio artists, musical artists, directors, producers, writers, cinematographers, composers, lyricists, arrangers, models, and “other artists and persons rendering professional services in motion picture, theatrical, radio, television and other entertainment enterprises.” See Labor Code §1700.4(b). “Other entertainment enterprises” may seem to be an extremely broad category.

A talent agent is “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists.” Marathon Entertainment, Inc. v. Rosa Blasi (2008) 42 Cal. 4th 974, 983, 986, citing Labor Code §1700.4(a). “In Hollywood, talent agents act as intermediaries between the buyers and sellers of talent… Generally speaking, an agent’s focus is on the deal: on negotiating numerous short-term, project-specific engagements between buyers and sellers.” Id. at 983.

Talent managers, on the other hand, focus “on advising and counseling each artist with an eye to making the artist as marketable and attractive to talent buyers as possible, as well as managing the artist’s personal and professional life in a way that allows the artist to focus on creative productivity. ‘Personal managers primarily advise, counsel, direct, and coordinate the development of the artist’s career. They advise in both business and personal matters, frequently lend money to young artists, and serve as spokespersons for the artists.’” Id. at 984.

Frequently, however, it is expected that “the development of the artist’s career” involves introducing them to greater and better opportunities. Talent managers find themselves helping their clients by reaching out to their entertainment contacts in the industry about opportunities for their clients, exploring terms, negotiating contracts, and potentially engaging in activities for the benefit of their clients which entertainment litigators might one day claim are technical violations of the Talent Agency Act.

Many of the cases that find their way to the Labor Board involve an artist who, for one reason or another, no longer wants to pay his or her talent manager, and so complains that the manager has violated the Talent Agency Act. Any dispute involving the act must be first heard by the Labor Commissioner and cannot be brought in a court of law unless the commissioner has issued its ruling. It is not a forum friendly to the manager. According to a recent study by Forbes Magazine, ninety percent of the cases that have been referred to the Labor Commissioner in the last twenty years have been decided in favor of the artist. See “Walking on the California Talent Agency Act’s Thin Ice: Personal Managers Beware!”, by Richard Busch, Forbes March 25, 2013.

One way managers address what may seem to be an uneven playing field is to insert an arbitration clause in the management contract, requiring that any and all disputes be referred to arbitration. In the case of Preston v. Ferrer (2008) 522 U.S. 340, the United States Supreme Court upheld such an arbitration clause, even though by doing so it took away the Labor Board’s “exclusive jurisdiction.” Mr. Boesch of the Boesch Law Group was the arbitrator selected by the entertainment lawyers for both sides in the case, who upheld the arbitration clause and whose ruling was affirmed by the Supreme Court.

If you are a talent manager, talent agent, artist, or are otherwise involved in entertainment litigation and need to know more about the laws surrounding California’s Talent Agency Act, avoid disputes by speaking to a Los Angeles entertainment litigator who knows the rules and exceptions, who is respected by reputation, and who will fight to get you a fair and just result. To speak to a Los Angeles-based attorney who can help guide you through the legal process, please call us today at (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Silicon Beach Fest 2018

SILICON BEACH FEST 2013Entrepreneurs, start-ups, content creators, social media mavens and masters of the digital world – mark your calendars!  Silicon Beach Fest returns August 23-27 in Los Angeles! Silicon Beach Fest is a biannual event celebrating LA’s flourishing digital media community. Spread over the course of four days, Silicon Beach Fest is an educational, creative and social community event to look forward to. Panelists include VCs, digital marketing strategists, entrepreneurs, and tech company CEO’s. A Digital Film Fest, workshops, and networking events populate the schedule.

With extensive and diverse expertise in entertainment disputes, digital media and contracts, the attorneys at the Boesch Law Group develop innovative and creative approaches to litigation, bringing to their clients, and to the Silicon Beach Fest, an in-depth understanding of the business and culture surrounding creative talent, pioneering business and technology.

Our entertainment litigation attorneys have won for plaintiffs and defendants numerous judgments and settlements in all areas of business and entertainment litigation. Located in the heart of Silicon Beach, our lawyers build business and assist business owners and general counsel with legal support, contracts and business advice. We position our clients to succeed in all aspects of a growing digital world. As entertainment litigators, we are problem-solvers who work closely with entertainment transactional lawyers, personal managers, talent agents, business managers, and accountants, in an extraordinary and successful team approach to the handling of entertainment lawsuits. The Boesch Law Group specializes in litigation avoidance, and act as first responders to problems of all types that confront entertainment, media and technology companies.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Firefighter Injured in Multi-Vehicle Collision in Northern California

Unfortunately, it is something we see all too often in California. A speedy motorist in a flashy car thinks that the traffic laws – and the rules of common decency – do not apply, and turns the freeway into his personal racetrack, cutting off other vehicles and swerving in and out of traffic. On May 24, 2013 in Fresno, California, a driver of a red BMW sped in front of a fire truck responding to a call, causing a collision wherein the fire truck overturned and struck another SUV. The driver of the BMW, the passenger of the SUV, and one of the firefighters were injured in the accident, though fortunately none of the injuries reported was severe.

Many people involved in multiple-vehicle car accidents are not so lucky. According to the U.S. Department of Transportation, someone is killed every sixteen minutes because of a motor vehicle accident, and in California, the numbers are rising for the first time since 2005. A recent news article estimates that the average driver will make an insurance claim due to a car accident at least every 17.9 years. Separating doubtful claims from legitimate damages often requires the most competent personal injury attorneys.

If you or someone you know has been faced with injury or death because of a multi-vehicle car collision, it is important to retain an experienced personal injury attorney who can sort out the complexities involved in determining liability and who is not afraid to stand up against the nation’s largest insurance companies to ensure that you get the justice you deserve. To speak to a Los Angeles personal injury attorney who can help you through this difficult time, please call us today at (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Los Angeles Ranked in Top Five Cities with Most Pedestrian Fatalities

According to the National Highway Traffic Administration (NHTA), California, Florida and Texas have more pedestrian deaths than any other states, and Los Angeles ranks in the top five cities with the most pedestrian deaths as a proportion of total pedestrian fatalities. The NHTA reports that the most deadly season for pedestrian fatalities is autumn, with the most deaths occurring in October, November and December. Pedestrian accidents mostly occur between 6:00 p.m. and 9:00 p.m. on Fridays and Saturdays, when poor lighting conditions are a known factor.

Males account for seventy percent of pedestrian victims, and the majority of drivers involved in pedestrian crashes are also young men between the ages of twenty-one and twenty-five years old. These figures correlate with the statistics showing that male drivers are more likely to speed or drive while intoxicated, and that male pedestrians are more likely to be under the influence of alcohol than female pedestrians. However, in recent years the majority of fatal pedestrian crashes do not involve alcohol or speeding. Instead, distracted driving is becoming more prevalent, with nearly twenty percent of Southern California drivers admitting to texting on their cell phones “regularly” while driving. Younger drivers are especially likely to operate their cell phones while driving, with the rate doubling last year in drivers aged sixteen to twenty-five.

While car manufacturers work hard to design safer vehicles to protect their occupants, pedestrians grow more and more vulnerable on Los Angeles’ busy streets. Awareness is key, both on the part of drivers and pedestrians. If you or someone you know has been injured or killed because of a driver’s lack of awareness, it is crucial that you speak with an experienced personal injury lawyer who is familiar with California’s traffic laws and who will fight to get you the best possible results. The Boesch Law Group has successfully represented both plaintiffs and defendants in difficult accident cases involving multiple parties, causation issues, catastrophic injuries, and complex insurance questions. To speak to a Los Angeles-based attorney who can help guide you through the legal process, please call us today at (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Wrongful Death Versus Survival Action: Why You Should Know the Difference

When a loved one dies because of the negligence of another, California law provides for two different types of lawsuits that can be brought against the wrongdoer. One type of lawsuit is known as a “wrongful death” lawsuit and is brought under California Code of Civil Procedure §377.60. The other is known as a “survival action” and is brought under California Code of Civil Procedure §377.30. If you are considering your legal rights because of the untimely death of a family member, it is important to know the difference between the two types of lawsuits and what you are entitled to under each one.

A wrongful death lawsuit may be filed by the personal representative of the deceased’s estate, or by the decedent’s surviving spouse, children or other dependent family members. The damages that are recoverable according to statute are, “under all the circumstances of the case, [such damages as] may be just, but may not include damages recoverable under Section 377.35 [the Survival Statute].” The courts have interpreted the wrongful death statute to mean that the family can ask for compensation due to loss of support, loss of services, funeral and burial expenses, loss of companionship and sexual cohabitation. However, it is important to note that punitive damages are not recoverable under the wrongful death statute.

A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Damages recoverable under the statute include “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” Essentially, the survival statute allows one to “step into the shoes” of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.

Even though the two statutes represent separate and distinct actions, they may be consolidated into one lawsuit where appropriate.

If you have lost a family member because of the wrongdoing of another, you should consider filing either a wrongful death or survival action lawsuit, or both if the circumstances permit. While no amount of money will bring back a loved one, strong and competent legal representation may help to offer closure and to ease the financial stress involved after such a loss. The Boesch Law Group and attorney Philip W. Boesch, Jr. have successfully represented both plaintiffs and defendants in wrongful death actions from automobile accidents, explosions, product defects, train collisions, and airplane crashes. To learn more about how we may be able to assist you in your time of need, please contact one of our Los Angeles attorneys today: (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Broker’s Duties to Conduct Visual Inspections Pursuant to C.C.P. SECTION 2079, ET SEQ.

A selling broker or agent has a duty to conduct a visual inspection of residential property offered for sale and to disclose all facts materially affecting the value of the property to a potential buyer. See Cal. Code Civ. Proc. §2079 et seq. To be safe, a broker or agent showing a home should fully disclose all defects to which he or she becomes aware during the course of the visual inspection. The standard of care owed by a broker or agent is the degree of care that a reasonably prudent real estate broker or agent would typically exercise during such an investigation and is measured against the broker’s or agent’s education and experience.

The aforementioned duties do not completely absolve the buyer of any responsibility regarding obvious defects—a buyer nonetheless remains responsible for protecting himself from things that are known to or within the attention and observation of the prospective buyer. In other words, a prospective buyer cannot blame the broker for failing to disclose that the back window is broken and boarded up where that fact is obvious to anyone who observes the property.

The inspection contemplated by Section 2079, et seq., is quite limited. No such inspection involves any area of a residential property offered for sale that is reasonably inaccessible, and does not require any inspection of public records or permits concerning title or use of the property.

If any prospective buyer believes there has been a breach or nondisclosure falling within the scope of Section 2079, et seq., the buyer has two years from the date of possession—the earlier of close of escrow, date of occupancy, or date of recording—to bring an action against the seller’s agent or broker.

If you have a question or a legal issue, you should consult a real estate litigation lawyer or call the Boesch Law Group at (310) 578-7880 or email your inquiry.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Wrongful Death of a Jogger by Pack of Dogs

A sixty-three year old jogger was violently mauled to death by a pack of pit bulls in the Palmdale area of Los Angeles County on Thursday, May 9, 2013. The victim was dragged fifty yards and her arm was ripped off in the attack. She died of her injuries in the ambulance on the way to the hospital. The victim was identified on Friday as Pamela Maria Devitt. Alex Jackson has been arrested as a “person of interest” but it has not been confirmed whether he is the owner of the six pitbulls and two mixed-breed dogs that killed Ms. Devitt. The dogs were seized by Los Angeles animal control officials and DNA tests are being run to confirm that they were the dogs in the attack. If so, they will likely be put to death.

Los Angeles authorities and the news media have been informed that the dogs were known to be aggressive in the past. Neighbors said the dogs had a history of hopping the fence where they lived, and of attacking people on horseback and pedestrians. In fact, one witness stated that the dogs had attacked a man riding a horse with two children earlier in the week. Another neighbor, Diane Huffman, said that she was so frightened, she was considering “getting a gun to protect myself.”

At this time, nothing is known of the victim’s family, whether they have retained an attorney, or whether they will pursue a wrongful death claim against the dogs’ owners. However, if the witness testimony proves true, the dogs’ owner may be subject to civil wrongful death claims, as well as criminal charges. Many homeowner’s and renter’s insurance policies have specific provisions that deal with dog attacks – either providing, affecting or excluding insurance coverage for the loss. Furthermore, if a survival cause of action is asserted on Ms. Devitt’s behalf, her personal representative could seek punitive damages on the basis that the dogs’ owner knew or should have known that the animals were violent and likely to cause bodily injury or death, but willfully failed to take any action to protect the general public, including Ms. Devitt.

The sympathies of all caring people go out to Ms. Devitt’s family. If you also have lost a family member because of someone else’s conscious disregard for the safety of others, it is important to choose a law firm that specializes in wrongful death litigation. We at the Boesch Law Group, dedicate ourselves to pursuing justice for your loved one while offering sensitivity, caring and understanding during an extremely difficult time. The opinions expressed in this blog or on this website are intended to be general and informative only and not legal opinions upon which anyone should rely. To learn more, call to speak to a Los Angeles-based attorney today: (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Wrongful Death of Unborn Babies Killed by Ariel Castro

Ohio prosecutors sought death penalty charges against convicted kidnapper and rapist Ariel Castro for the miscarriages he inflicted on the women he held prisoner for ten years. The women testified that Castro starved them and beat them in the stomach in order to terminate their pregnancies making him the first person in the United States to be put to death under fetal homicide law. Ohio is one of thirty-eight states, including California, which allows murder charges to be brought for the unlawful killing of a fetus with “malice aforethought.”

This raises the question of whether a civil cause of action can be brought in cases where there has been the negligent or intentional injury to a pregnant woman such that she suffers a miscarriage.

California’s wrongful death statute states that a wrongful death lawsuit can be brought for the “death of a person caused by the wrongful act or neglect of another.” The individuals who are entitled to file such a lawsuit include the decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons who would be entitled to the property of the decedent by intestate succession. California Code of Civil Procedure §377.60. Additionally, if the individual was dependent on the decedent, a spouse, children, stepchildren, or parents can also have standing to bring a lawsuit.

However, the question of whether a wrongful death lawsuit can be brought for the death of an unborn baby hinges on the definition of “person” within the statute. There is a significant discrepancy between the criminal law and the civil law when it comes to the legal status of an unborn baby. California Courts have held that a fetus is not a “person” under the wrongful death statute until there has been a live birth. Justus v. Atchison (1977) 9 Cal. 3d 564, 579-580. In other words, unless the baby is born alive and then subsequently dies, a wrongful death action is prohibited.

We at the Boesch Law Group, dedicate ourselves to pursuing justice while offering sensitivity, caring and understanding during an extremely difficult time. To learn more, call and speak with one of our Los Angeles-based attorneys today: (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Wrongful Death of Bride and Her Friends Killed in Limousine Fire

In the California Bay Area, five women, including a bride, were killed while on their way to a bridal shower when their limousine – a 1999 Lincoln Town Car – suddenly caught fire on a San Francisco bridge. Four other passengers escaped with injuries including burns and smoke inhalation and two were in critical condition. Investigators do not believe the fire was caused by a collision and are looking into other causes. They are planning to review previous inspections of the vehicle to determine whether it had any prior issues.

It is known that the fire started in the rear of the vehicle and the women were screaming at the driver to stop the vehicle as the passenger compartment filled up with smoke. There is conflicting testimony between one of the survivors and the driver surrounding the details thereafter. The driver told authorities that he helped pull four women through the partition to safety, but the survivor said that, once the driver finally stopped the car, he escaped himself and did nothing to help them.

The limousine was operated by Limo Stop of San Jose and was driven by Orville Brown. The vehicle was carrying one more passenger than allowed by regulation, but officials have not commented on whether that played any role in the tragedy. According to Automotive Information Systems, the vehicle is prone to significant engine problems, including failure of the catalytic converter. As the investigation continues, liability may be found against the manufacturer, service and repair shop, owner of the vehicle, or some combination of the three.

The Boesch Law Group is familiar with automobile fire cases and has experience litigating against major automotive manufacturers for product defects which resulted in catastrophic injuries. If your loved one has been the victim of a vehicle fire, it is important to retain an attorney who specializes in wrongful death and automotive litigation. To learn more about how the lawyers at The Boesch Law Group can help you through this difficult time, call to speak to one of our Los Angeles-based attorneys today: (310) 578-7880.

 

DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.

Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

There Was Something About Mary

By Philip W. Boesch, Jr.
Reprinted with permission – www.westsidetoday.com

For the first 89 years of this country’s existence, no woman was ever executed for any crime. Then along came Mary Surratt.

Mary Surratt and Thomas Jones never knew one another, but they both knew the actor John Wilkes Booth. In downtown Washington, Mary ran a modest boarding house where Booth hung out with Mary’s son John and other theater cronies. Thomas Jones lived a day’s ride away. The last anyone heard from Jones, he had a cheap booth on the midway at the 1892 Chicago World’s Fair, where he hawked his seedy book about how he helped Booth hide out in the woods after the murder of Abraham Lincoln.

Twenty-seven years after the assassination, Thomas crawled out from under a rock to try to cash in on his brush with infamy. Folks at the World’s Fair didn’t take kindly to Tom’s work. A newspaper column outlined briefly how angry veterans of the Army of the Republic trashed all the books. It seems Thomas didn’t die from his beating, but after openly selling his tale as an accessory to the most infamous murder in U.S. history, Thomas Jones did disappear. Laying low suited him best.

At Mary Surratt’s boarding house, they didn’t like Lincoln much and they spoke their minds freely, as they were permitted to do in these United States. Booth’s buddies drank a lot, and made noise about kidnapping the President; and then a few of them changed course and set out instead to kill him, the Vice President and the Secretary of State. Everyone testified later that Mary had nothing bad to say about the President. Minding her own business, she cleaned house and always had a pot of stew on for her son’s friends. The only witness who could recall Mary saying anything was certain she had nothing to do with Booth’s plot.

As it unfolded, the killer assigned to Vice President Andrew Johnson got cold feet and ran; Secretary of State Seward and his family were slashed viciously in a bloody knife attack that left two dead and Seward barely alive. At about the same time, at Ford’s Theater, hundreds heard a gunshot and then saw John Wilkes Booth leap from the second floor box to the stage below. Outside, Ed Spangler held Booth’s horse like he’d been told.

As alarm spread rapidly with the news, Booth galloped south into the night and across the bridge into Maryland. Hours later and far from the city, Booth woke up Dr. Mudd, a country doctor friendly to Southern boys, to set the leg bone Booth broke in his jump to the stage. When the good doctor threw Booth out the next morning, suspecting who he was, the assassin stumbled in the woods upon a local named Thomas Jones. It was Thomas who hid Booth away for the next week, bringing him his daily bread with news of the manhunt.

Then, when the coast was clear, Thomas rowed the killer across the river to Virginia, so he could continue his escape to the south. But the cavalry wasn’t far behind. They got wind of Booth, cornered him in a barn, burned it down and shot him dead for the reward. Before the frenzied hunt for accomplices, aiders and abettors, Booth’s friends scattered. Thomas Jones stayed quiet; John Surratt fled to Europe; his mother Mary stayed at home. To “aid” is to give any kind of support or information. To “abet” is to encourage. Any assistance makes you an accessory. You can be on the wrong side of the law if you know anything and keep it quiet. The U.S. Criminal Code calls it “guilty knowledge.” Aiders and abettors and accessories floated around Lincoln’s murder as they do around most big crimes, because we know how difficult it is to move through modern times completely alone.

Eight of Booth’s associates were tried and found guilty of conspiracy, including Ed Spangler and Dr. Mudd. Four of the eight were hanged, including Mary Surratt. Denying the court’s recommendation of leniency for Mary, President Johnson said simply “she kept the nest that hatched the egg.” President Kennedy was murdered in 1963. They are out there still: accomplices, aiders, abettors and accessories of Lee Harvey Oswald and Jack Ruby, witnesses with guilty knowledge… many identified by researchers and many not.

So we wait for the next Thomas Jones. He’s been hiding under his rock long enough. He can surface without fear of prosecution now. There are no prosecutors with a budget or appetite to take on the Kennedy murder, not in Texas, not anywhere. With any credentials at all behind his story, the modern day Thomas Jones can get an agent or manager or publisher or lawyer, or all of the above, to push a book deal, a TV interview, an infomercial with a DVD. He can appear safely on the web instead of in a booth where the vets can jump him. He can get it out on Amazon, drive traffic to his own
site, and sell, sell, sell. And with each copy sold, he can expose, a bit more, the ones who kept the nest for Oswald and Ruby.

Mary’s son John ran away to Europe, to leave his mother facing the gallows alone. When they brought John back a few years later to stand trial in a civil court, a hung jury was unable to decide what he knew and when he knew it. They let him go, and so John lived. There was something about Mary. She kept the nest that hatched the egg, and for it, she became the first woman in American history to be executed.

The Boesch Law Group handles business, entertainment and personal litigation matters throughout Southern California. Among its high profile litigation, Mr. Boesch was lead trial counsel for Anna Nicole Smith in obtaining her federal court judgments, including the “#1 Judgment in the Nation” according to U.S. Law Weekly. He successfully represented The Wall Street Journal against all major oil companies in the leading federal case on public access to court files; and is the author of three editions of the California Judges’ Association’s Media Guide on Cameras in the Courtroom

No Cold Case for This Murder

By Philip W. Boesch, Jr.
Reprinted with permission - www.westsidetoday.com

His friends called him Kirk but I always called him Professor Kirkpatrick. He sat white-haired, dignified in his wheelchair, patient to his admiring students, popular, even kind. So I felt grateful to take three of his classes, plus a seminar, plus an independent study. He became my adviser. He recommended me, and we had our private moments when he changed his gray suit for a cardigan. I had access to him, maybe not as much as some, but all I needed. I was sure he taught by the truth.

If only then I knew the questions to ask. Lyman Kirkpatrick, before coming to Brown University in the mid-1960’s as Professor of Political Science, had no academic career to speak of. Since the early 50’s, his legs paralyzed from polio, the man worked as the Inspector General of the CIA, a direct report to Director Allen Dulles. Being around as long as Kirk had been, the IG knew secrets from all around the Agency. His was the job of a ghost, inspecting and auditing covert operations that weren’t supposed to exist, long before and after the murder of President Kennedy.

The world learned a lot more about Professor Kirkpatrick in 1998, long after Kirk died, when the CIA finally released his secret critique of the failed Bay of Pigs invasion. The Inspector General’s Survey of the Cuban Operation not only blamed CIA planners for misleading the President, but before the CIA sealed his report for a lifetime, they attached to it the “Rebuttal” by Richard Bissell from ‘Plans.’ Bissell repeated the Agency’s angry view that everything was Kennedy’s fault, because 1500 CIA-trained Cubans were cut down and captured by Castro’s army when Kennedy pulled the plug on air support. He let good men die, Bissell said, so he could pretend he was never involved, when everyone already knew the US was behind the attack. It had to be in the Rebuttal, because Kirk wouldn’t do the CIA whitewash. He and his three investigators asked enough upsetting questions, that they didn’t know what to do with Kirk anymore. He wrote himself right out of a job with his IG reports, and then he left to teach, and then the CIA buried the reports he left behind…at least for the next thirty-three years.

To date, only two court cases have come out of the assassination. New Orleans Jim Garrison’s prosecution of Clay Shaw became Oliver Stone’s film “JFK,” and Mark Lane defended the defamation lawsuit brought by E. Howard Hunt, a story retold in the best-seller Plausible Denial. In both cases, jurors said they believed Oswald did not act alone, that a number of people conspired to murder the President. The House Select Committee on Assassinations later reported the same thing.

We just didn’t know back then. We didn’t know that the same agents in the Cuban operation, who managed Lee Harvey Oswald, also shared assassination training and intense hatred for JFK. We didn’t have Joan Mellon’s Farewell to Justice, the 2005 account of how the CIA torpedoed Garrison’s case. We didn’t have David Talbot’s Brothers, the 2007 story of Bobby Kennedy’s private thoughts on the murder. Most of us didn’t have the foresight of a Mark Lane to see through the Warren Commission to the outrage of cover-up. For years, we didn’t even have the buried Zapruder film, which shows in slow motion before our very own eyes how the President was shot first from behind and then an instant later from the grassy knoll in the front.

We questioned authority in the late ‘60’s, but the skills and tools of cross-examination were yet to come. So what to do now? The answer is that it’s time to pursue freedom of information to the ends of this earth. Follow Freedom of Information Act suits against bureaucrats who still withhold evidence. Support nonprofits and independent researchers. You can and should write your Congressman, but our government agencies won’t do anything. Read again how Mark Lane proved the truth of the story that placed the CIA’s Cuban operation, and Hunt, in the middle of the conspiracy to murder the President. Cross-reference the good works by Mellon and Talbot and others, and keep peeling the onion. Line up the lawyers who represented the characters in this bad play. This is the lesson of Blood, Money & Power, the book by a partner in Ed Clark’s Texas law firm. For years Clark served as LBJ’s personal lawyer and fixer, from the corrupt build-up of wealth, through to the end of his presidency. It’s not news that Clark’s law partner puts Clark in the middle of the assassination web, but that he does it with information kept confidential for years by attorney-client privilege. According to Talbot, known CIA assassin David Morales told his lawyer he was in Dallas on November 22nd. Go after every lawyer file and note and recollection, and never take no or ‘privilege’ for an answer.

When the President was murdered, Kirk still ran the Office of the Inspector General of the CIA. He and his investigators knew more than anyone about the connections of the CIA’s Cubans. They wrote the inside book on it; they were competent, and dedicated. If I could have back just one seminar night with the professor, I’d be ready with the questions this time. What can still be done to chart the days for all the suspect CIA assets and agents? Where were they and what were they doing that week when Kennedy was shot? What about the killings of all these witnesses? Oswald contacts Guy Banister and David Ferrie, murdered before testifying, Johnny Roselli, implicated and murdered before testifying, witness after witness, victim after victim, knowing a little or a lot and dying for it…And how is it possible that police can question Oswald for two days before he’s killed, with no record of what he said?

Then, on a night in his office, one-on-one, when he’d be wearing his cardigan, I’d ask Kirk for the Inspector General’s survey of the assassination. I’d ask him for the truth. I still want to believe that he would have told me, and that we would have lived to tell the world. If only then I knew the questions to ask.

The Boesch Law Group handles business and personal litigation matters throughout Southern California. Among its high profile litigation, Mr. Boesch was lead trial counsel for Anna Nicole Smith in obtaining her federal court judgments, including the “Number One Judgment in the Nation” according to U.S. Law Weekly. He successfully represented The Wall Street Journal against all major oil companies in the leading federal case on public access to court files; and is the author of three editions of the California Judges’ Association’s Handbook on Cameras in the Courtroom.

Right to Privacy

By Philip W. Boesch, Jr.
Reprinted with permission – www.westsidetoday.com

The Los Angeles Times reminded us this week that the fate of Roe v. Wade likely depends on this presidential election. The next president, they say, will appoint the swing votes on the Supreme Court for or against the right to an abortion. Democrats and “liberal” groups frame the debate in favor of a woman’s right to choose…pro-choice. “Conservatives” and the Republican platform promote the right to life…pro-life. Justice Scalia himself has taken to the airwaves to remind voters that the Founding Fathers did not write into the Constitution a right to abortion.

But the news soundbites and the one-liner debates miss the real point of what is at stake here. Who after all doesn’t like life? Or for that matter the idea of choice? By casting the issue in such limited terms, the debaters on both sides neglect what Roe v. Wade really was all about. What Justice Scalia doesn’t emphasize, what the simple debate ignores, is that Roe v. Wade affirms a Constitutional right to privacy. Admitting that “the Constitution does not explicitly mention any right to privacy”, the Supreme Court nonetheless found by a plurality, barely, that “personal, marital, familial and sexual privacy [are] said to be protected by the Bill of Rights or its penumbras”. They wrote “said to be protected,” because they knew of course that the right to privacy does not appear anywhere in the Bill of Rights. Finding something in a penumbra is like touching a spirit. What mortal men get to do that? And who knows what a “penumbra” is anyway?

When anti-abortion advocates demand strict construction of the Constitution and rant against judges who create law, the trouble is that this now fundamental right to privacy was created precisely in the manner they oppose. Our privacy rights came into the Constitutional world in judicial opinions striking down laws against contraception and interracial marriage, by judges who stretched to rule against police invasion of the bedroom. Fragile and vulnerable from its beginning, the right to privacy grew stronger with fits and starts and building precedents until its coming out, its bar mizvah, in Roe v. Wade. Judges who found this right in the “penumbras” were finding and making a rule of law that Congress and the Founding Fathers did not make.

What a good thing they did. Who now doesn’t believe in privacy? Conservatives want their freedom from government intrusion same as liberals and libertarians. Motherhood, apple pie and privacy are nonpartisan All-American. Cutting back on privacy – or taking away its legitimacy as a Constitutional right because it was “created” by judges and not by our Founding Fathers – is truly a slippery slope. Does anybody really want less privacy protection?

Children are taught early about the importance of their privacy and respecting the personal space of others. We accept as a given now, through decades of change seeping into our consciousness and our Constitutional interpretations, that privacy is an honored Constitutional right…maybe our most important right, up there high on the list with free speech and freedom of religion.

Until Roe v. Wade is overturned.

The Boesch Law Group handles business and personal litigation matters throughout Southern California. Among its high profile litigation, Mr. Boesch was lead trial counsel for Anna Nicole Smith in obtaining her federal court judgments, including the “Number One Judgment in the Nation” according to U.S. Law Weekly. He successfully represented The Wall Street Journal against all major oil companies in the leading federal case on public access to court files; and is the author of three editions of the California Judges’ Association’s Handbook on Cameras in the Courtroom.

When David Killed Goliath

By Philip W. Boesch, Jr
Reprinted with permission – www.westsidetoday.com

“David Steals Goliath’s Music.” A New York Times editorial weighs online music piracy.

“David Versus Goliath.” – Business Week describes podcast wars.

Under the heading “David and Goliath,” it’s Elizabeth Hasselbeck and Rosie on rightwingnews.com.

Newsweek says Arabs on the street see America as Goliath.

An ad agency just calls itself “David and Goliath,” because everyone must know what that means.

It’s the classic confrontation. David, small and quick, lines up against the hugely ugly and powerful Goliath. Goliath goes down with one stone from David’s sling, defeated, beheaded, and abused for eternity. David becomes the rich king of all he sees. No one since has doubted that the Philistine deserved to die.

Taking a closer look, the man had three brothers, a mother, father, and a hundred dependents. A breadwinner with a long work history and a bright future, the man would be sorely missed, the loss of his care and protection worth boatloads of gold. The calculation of damages, all those zeros, could excite the dull deposition of any expert economist. Proving the death a wrongful one would be less heresy, more common sense. If the lawyer did his job to get a fair jury beyond all the hype of public attention, the facts could roll out easily. The theme, and all trials have themes, is that this death could have been avoided. Sure, this obnoxious man had stood in the valley for forty days, screaming challenges, but when jurors thought about it, taunts don’t justify murder. David’s lawyers could not justify the deadly strike. The young man’s move had been calculated, premeditated. It didn’t matter how much bigger Goliath was. It didn’t matter how afraid others might be. David had acted without fear, without doubt or remorse. It didn’t matter that Goliath killed when he felt like it. Even the most grotesque among us has the right to live. The trial would not need especially clever cross-examination. Before two thousand witnesses, David had marched ahead toward Goliath with a single, openly stated purpose. He said he’d kill him. He intended to kill him. He felt no fear. He even took off his armor. He was that confident, even arrogant, in his righteousness.

The death scene wouldn’t help David’s defense. The nine-foot Goliath, as tall as he was, stood in a valley beneath two hilltops. When the experts measured the angles, everyone could tell that David struck from above, from a distance Goliath had no chance to reach. As powerful as the man was, he could not have hurled his heavy sword the entire distance if he’d wanted to, and no one saw him try.

Faster, more agile, more clever, David’s advantages began to add up. Trained for years in the arts of his sling, teachers said David could nail a bullseye from a hundred paces, and Goliath stood much closer than that. Whatever Goliath could see coming toward his one good eye wouldn’t matter anyway. Everyone knew Goliath was too slow to move out of the way of anything, too slow-witted to think to duck. When they tried to defend David with a self-defense theme, good counsel would have been ready. There was that trick move David pulled before he let go with his sling. Samuel wrote it in the Bible, and so it must be. David yelled that he was going to feed Goliath’s carcass to the birds. When David pointed overhead, and Goliath looked up toward birds that weren’t even there, when the big man didn’t see it coming, David unleashed his strike.

Wrongful death. Murder. In the first degree. David’s defense would be left to flay away with cute lies… ‘if the stone don’t fit you gotta acquit’ and that sort of thing. The dead man’s family had proven liability, and  significantly, a defendant with the means to pay. David would be King with a store of gold. Damages, punitive damages, the sky was the limit. Of course, King Saul had on retainer lawyers who were too smart for all that. The day after, and for all time, David was an international celebrity, famous beyond all realms. With such a reputation to protect, a legacy greater than the fits and grief of the few, Saul’s lawyers had the situation surrounded with overwhelming efficiency, and privacy. Philistines might complain that the celebrity got unfair favorable treatment, what with no prosecution, being made king and all. But Philistines never could know what was happening behind the scenes. That was the whole point of it. The competence of the lawyers guaranteed the privacy of the outcome. Real names were hidden by trusts, the agreements were tight, the consequences of breach severe. If anything hit the press, they were ready with pre-packaged releases on self-defense and good riddance.

It shouldn’t surprise anyone if money were paid privately to protect a world class celebrity. It wouldn’t cost too much, because after Goliath died, David’s men routed his army, looted his villages and left the victims very needy. They couldn’t wait for a long trial to feed their kids. Food and shelter before lawsuits, David’s lawyers said. And they were right. They also knew there would be a payment. There could be no trial, no tarnish, nothing to hold back the creation and wonder of the celebrity that was David. That’s celebrity justice. Today it’s the hamburger stand against the Big Mac, the indie film hunting distribution in a crowded market, a sexually harassed employee with no witnesses, the boutique against the chain. Anytime it’s small against big, the few against the many, it’s David and Goliath all over again, and both of them need help.

Philip W. Boesch, Jr. and the Boesch Law Group were the lead trial counsel in obtaining the record judgments for Anna Nicole Smith, and in obtaining a California state record wrongful death judgment. They have represented numerous celebrities in high-profile lawsuits, and in settling disputes on a low profile basis.

Philip W. Boesch, Jr. is the principal and founder of the Boesch Law Group and an experienced litigator. He has obtained a state record wrongful death verdict in one case, and in another case what U.S. Lawyer’s Weekly profiled as the Number One Judgment in the United States. The Boesch Law Group practices business litigation and personal litigation in all state and federal courts.

The Sport of Headhunting

By Philip W. Boesch, Jr.
Reprinted with permission – www.westsidetoday.com

Litigation is a nasty business, an expensive process which usually leaves the underdog deep under. But it is the system we have for ordinarily civilized people to resolve conflict, so as to come to a settlement no one is happy with. The first rule you learn about settlement is that a good one is equally disliked by all sides.

No one comes to litigation with much affection for the one who sues him, and it is easy to understand revenge when your loved ones are injured or your business is attacked. In a legal system where people pay for their mistakes through court process, parties hire headhunters to battle for private notions of justice distorted by pain. Underdogs who can’t hire anyone, hustle, and try to make do.

Headhunting begins with the selection of the litigator. “Nice and thoughtful” works for estate planners. Litigators have to be tough, should flash a little menace, inspire fear. Television litigators make the point.  James Woods in “Shark” was the hungry, vicious animal you’d love to set loose on your enemies. On “Boston Legal,” the relentless brilliance of James Spader had, as his foundation, a do-anything/say-anything strength that has no consequence but success. Yes, it is important to be smart, but not enough. The meanest bully, the one who eats nails for breakfast and your enemies for lunch (a headhunter) is the litigator most people think they want.

Anthropologists who study headhunting know that the practice was not confined to the jungles of New Guinea or the Amazon. David took Goliath’s head, and the Celts practiced headhunting too, because it reflected dominance and power and control. Wearing a man’s head on your belt completed the victory. Fill it with hot pebbles and sand, drop it in a simmering pot of water, wait twenty hours and then you had him. Shrinking it took his soul.

Family wars, whether divorce or estate and trust disputes, are fertile territory for headhunting. Punishing the guilty for old slights, sharing agony, slicing and dicing and shrinking heads, can be stated goals or merely wishes left unsaid. Depositions can be ritualistic practices not so much to gather evidence but to give the witness a painful dose of what misery awaits in the glare of the courtroom. Litigators refer knowingly to “scorched earth” tactics designed to inflict discomfort and waste. The phenomenon of spending a dollar to ask a question that will cost ten dollars to answer is called “interrogatories.” Serving subpoenas on secretaries, lovers, bosses and confidants follows the terrorist tactic of instilling fear by lining up the loved ones of the enemy.

The question is: How can an underdog make a way above ground against such force?

There are 54,000 lawyers in Los Angeles County; many of them litigators who have to promote themselves as the toughest headhunters money can buy. But as the headhunter ages and survives, the lessons sink in. It’s not the fear that
there always will be a younger, faster gun around the corner. It’s not a waning of desire either, because strong survivors in any field take satisfaction in being the best at what they do. The real lessons of war are in knowing how and when to reach for those small openings towards peace, in knowing how to build the bridge, piece by piece, to those you are working so hard to destroy. Bridge-building is the real art, lost in the beginning of a lawsuit, but reappearing always as exhaustion sets in. And exhaustion does inevitably follow because litigants cause each other so much unnecessary expense before the final round of a trial.

Henry Kissinger wrote that “we do not have the privilege of pretending a limitless capacity to impose our will.” As the
wise headhunter knows, as the outcome of the Iraq war tells us, the preparation for the peace should precede the preparation for the war. Everyone knows that bridges are not built in a day. It takes skill, design, negotiation and, most of all, it takes communication and trust.

The answer is: With less resources, maybe with only a piece of a lawsuit to offer, the underdog moves faster for those small openings, picks up the pieces sooner than later, takes fewer steps more carefully, and in hiring a lawyer, chooses wisely.

Headhunting leaves the warrior’s head, soul and spirit on his opponent’s belt— emotionally unavailable. With no one building bridges, endless expense remains as the reminder that there are headhunters out there who still practice their art without the slightest regard for client interest. You should carefully hire the headhunter at your peril, or you may reap what you sow.

Philip W. Boesch, Jr. is the principal and founder of the Boesch Law Group and an experienced litigator. He has obtained a
state record wrongful death verdict in one case, and in another case what U.S. Lawyer’s Weekly profiled as the Number One
Judgment in the United States. The Boesch Law Group practices business litigation and personal litigation in all state and
federal courts.

Underdog Justice™

By Philip W. Boesch, Jr.
Reprinted with permission - www.westsidetoday.com

Petra Hernandez, the bread-winning mother of four, was on her way to work along Route 144. Ten minutes later, state troopers sifted the remains of Petra’s head-on meet with a dozing truck driver. One minute Nga Li was minding her own business, turning left on Alvarado, heading home. Next thing she remembered there were bandages on her face and the loud moans of a charity ward, courtesy of the speeding cabdriver who hit her. At the hospital, Eliza Hurtault, who checked in two days earlier with a bleeding ulcer, stared blankly at the $23,984 bill. Its payment would take all she had and then some.

The first underdogs were eastern shipbuilders who laid their logs over a pit on planks called dogs. On top, the overdog pulled the two-man saw. In the hole, the underdog held on, sucking in the sawdust. In the west, prairie dogs were the underdogs, critters who hid in their holes, or who came out to be eaten, shot or stomped.

Underdogs have less everything: less money, less power, fewer advantages. As the insurance company saw it, Petra the cafeteria worker wasn’t wearing her seatbelt, and she was married to an unemployed husband who couldn’t read or write, and so, minimum wage, minimum offer. As for Nga Li, she might have contributed to the accident. No offer. Eliza Hurtault? She sold everything she could and worked harder than ever to keep up payments, even though she’d been charged four times what an HMO patient would have been charged for the same treatment.

Unfair? Life isn’t fair. Every contest has an underdog. Insurance claim reps have to measure death in some way. Contributory negligence always meant no recovery. And our elected officials passed the laws that encourage HMOs to negotiate lower prices for health care.

It’s always been this way. The deck has been stacked against the underdog since the day California became a state. Back then, Chief Justice David Terry assured followers that the Chinese and the Irish never would be allowed in his courts. Slavery would stay legal in California, Terry promised, even if the state had to be divided in half. When Senator David Broderick stood for abolition, our Chief Justice shot him dead in a rigged duel.

Judges are still people, with experiences and prejudices and points of view. They go to judging school, and some get high marks, while others deserve D’s and F’s. The duels are now verbal and the barriers, though not so obvious, remain impossibly high for the underdogs. It costs money, too much money for most, to hire good lawyers to navigate a system of complaints, pleadings, discovery, depositions, hearings, mediations, all before you get to trial. Little wonder underdogs remain underground, coming up only when they must.

So when does “unfair” become so intolerable that you just have to come out? Do you wait until an unfair competitor puts you out of business? Or until collection agents come to take your house? Or until you are paralyzed? Or dead?

When Nga Li decided to stand up against an unfair system, her court opinion in Li v. Yellow Cab changed the law of the land. Contributory negligence no longer barred all recovery of damages. Liability would forever thereafter be apportioned and divided among those responsible, changing the lives of thousands, millions of injured victims. When Guadalupe Hernandez turned down the token settlement offer for the death of his beloved wife, the state record jury verdict changed the way the insurance companies evaluated a child’s loss of a parent.

When Eliza Hurtault had to respond to agents collecting a bill for services four times the amount charged to an HMO patient, she and eleven others like her stood up as test cases against an unfair business practice. Her courage resulted in the “Compact with the Uninsureds,” reducing charges and eliminating the unfairness for many of the most needy patients. Underdogs again changed the way business was done.

No one ever prosecuted Justice Terry for murdering a U.S. Senator. The Chief Justice followed his prejudice to become a Brigadier General in the Confederate Army and returned after the war to a life of politics and prosperity until 1888. Supporting his young second wife, who lost a case on appeal, Terry approached and bullied the appellate justice who decided his wife’s case. The man’s bodyguard intervened and shot Terry dead. On the theory of “good riddance,” no one was prosecuted for that murder either.

It takes great courage to step forward with less, to confront fear and threat in litigation that’s already hard enough to understand. To find justice in the system, we depend on this courage and you can count on the day the underdog strikes back.

Mr. Boesch was appointed by the Los Angeles Superior Court as guardian ad litem of the four Hernandez children, lead trial counsel, and then after collection of the Judgment, Court-appointed guardian of the children’s estates. The Boesch Law Group successfully represented Eliza Hurtault and eleven other test cases, achieving peace for them and the hospitals’ Compact with the Uninsureds.

One Against a Billion

By Philip W. Boesch, Jr
Reprinted with permission – www.westsidetoday.com

A mind-numbingly tragic end – Start with the young beauty, out there in every sense, with the rich older man. Add the scandalous theft of oil billions by bribery and forgery. Mix in sensational front-page death with uninformed legal opinions. Finish with a baby girl whose paternity is challenged in headlines, and you get media frenzy for the ages.

But the baby in this story is Elizabeth Ann, not Anna Nicole’s Dannielynn. It’s 1923. The elderly lover is Warren Harding, the childless 29th President of the United States, who watches his cronies steal the national oil reserves, gets his young beauty pregnant, and escapes impeachment by dying of “food poisoning.” The scorned First Lady and her doctor, suspects in the poisoning, are also dead within the year. The President’s daughter becomes a best-seller… which leaves Elizabeth Ann for the media. Chased and hounded by the hordes, Elizabeth Ann stands up as tall as she can.

Fast forward eighty-four years. The media now swarming Anna Nicole serves a billion people. Publications carry scoops at warp speed. Dannielynn is surrounded and unarmed for an unfair fight.

Freedom of information is expected, memorialized in statutes, etched in stone. Reporters, stringers and paparazzi grab soundbites and pictures from here to Namibia. For decades, the Public’s Right to Know has enjoyed its support in First Amendment case law. The Public’s Right changed the rules of court, and now cameras are routine in state courts. In another leading case, the Public’s Right to Know steamrolled Big Oil to discover price-fixing evidence. In still another, Sarah Jane Moore aimed to kill President Ford. When a marine tackled the assassin, the Public had a Right to Know, and so media reports outed the gay hero. The man’s complaint against the Los Angeles Times was dismissed, because no one is safe from his celebrity. Even the hero’s privacy stands no chance against the Public’s Right to Know.


And in this corner, hopelessly wondering
why her mother is not there……Dannielynn,
the daughter of Anna Nicole. So how can
one little girl stand against a public a
billion strong and clamoring for tidbits every day?

My money is on Dannielynn.

Fifty years after Elizabeth Ann, the Supreme Court held in Roe v. Wade that our right to privacy is a fundamental constitutional right. We expect our privacy, with a passion no less than we reserve for our right to know. Backlash grows against media excess in recycling every intrusive detail. Even many who tune in must feel for the girl’s right to grow up in peace.

A billion to one is nothing new here. When Anna’s husband died, cut off from funds and left with bills, Anna filed for bankruptcy. It was Pierce Marshall who sued Anna in the Bankruptcy Court in 1996, he who made a Federal Case out of it. Answering Pierce’s nasty lawsuit against her, Anna won not one but two Federal Court Judgments. Her claims were never tried in any other court. In the Judgment recently reinstated by a unanimous United States Supreme Court, Judge Carter wrote that the conduct of Pierce’s agents against Anna was so outrageous –perjury and forgery and destroying evidence –that he doubled the award of punitive damages to $45 million. Through the years of litigation abuse, Anna coped in a very human way with pressures from enemies with a billion dollars when she had none. That she survived such relentless pressure for so long belies a strength that few see in the video clips.

When justice is done, and a substantial Federal Judgment is collected, it will cost large sums to buy privacy against a billion eyes, even for some of the time. Ask Brad and Angelina.

So what of Elizabeth Ann? The Elizabeth Ann Guild lobbied awhile to eliminate the notion of “illegitimate” children, and then she disappeared. She married, moved to Glendale and raised two sons in obscurity. Decades later, when Harding’s love letters surfaced, historians tracked her down to push DNA testing, to confirm for all time that she was indeed the President’s daughter. “No thanks,” she said. “We’ve been doing just fine.” In 2005, Elizabeth Ann died peacefully at the age of 86. Peace is possible, Dannielynn will learn. Its path will be hers to choose.

Philip W. Boesch, Jr. successfully represented The Wall Street Journal in Dow Jones v. Mobil Oil, the Los Angeles Times in Sipple v. Los Angeles Times, twenty-six of twenty-seven television news anchors to get camera coverage in the Hillside Strangler case, the first of many, and he has authored three editions of the Judges’ Media Handbook on Cameras in the Courtroom. Since 1996, Mr. Boesch has been lead trial counsel for Anna Nicole Smith in both Federal Court cases, obtaining the Judgments for $475 million and $90 million. The Boesch Law Group remains as lead counsel in protecting and collecting these Judgments.


Sitemap | Website Disclaimer