TVA March Newsletter

  Legal News
_March 2017

“Litigation is a ritualized form of fighting.” Tony Piazza

Oliver Wendell Holmes once said our Constitution “is made for people of fundamentally differing views.” But the ecumenical spirit can be taken too far: Holmes himself took Alger Hiss as a law clerk, who became a Soviet spy.

Michael Novak, the eminent philosopher and diplomat who departed from us last month, offered sounder advice:

“Freedom cannot grow—it cannot even survive—in every atmosphere or clime. In the wearying journey of human history, free societies have been astonishingly rare. The ecology of liberty is more fragile than the biosphere of Earth. Freedom needs clean and healthful habits, sound families, common decencies, and the unafraid respect of one human for another. Freedom needs entire rainforests of little acts of virtue, tangled loyalties, fierce loves, undying commitments. Freedom needs particular institutions and these, in turn, need peoples of particular habits of the heart.”

The attorneys and staff at Thomas Vogele & Associates offer a few dispatches from that “particular institution” known as the justice system.

Taking Your Judge to Trial

A litigant unhappy with his result in arbitration is suing is arbitrator, the Hon. Sheila Prell Sonenshine, former presiding justice of the Court of Appeal for the Fourth Appellate District, Division Three in Santa Ana. A San Diego Superior Court judge said of the resume-padding claim, “The jury is going to love this case.” The court denied Sonenshine’s summary-judgment motion, so, short of settlement, the judge will be on trial.

I always think of Sonenshine’s screed from Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal. App. 4th 1152 when issues over withheld evidence come up:

“KCI, not the least bit abashed even on appeal, admits it had the evidence all the time and withheld it throughout the proceedings because, in its opinion, the reports were irrelevant or cumulative or potentially privileged or otherwise inadmissible. How dare KCI and its attorneys play judge and jury in the trial court and then come before this court and argue the propriety of that utterly indefensible conduct! We are appalled that but for a fluke phone call from a Texas attorney, the Shermans would have remained forever unaware they had been cheated out of a fair trial.”

But I get the sense Sonenshine will not be the one brandishing righteous indignation at this trial.

Pokemon Maker Seeks Dismissal of Nuisance & Disgorgement Suit

Pokemon Go-maker Niantec moved to dismiss the class action that alleges the wildly popular app causes droves of users to trespass on private property in order to find, buy, and play with in-game prizes. Niantec points the finger at its users, insisting the gamemaker is not responsible for what users do since it displays disclaimers telling them not to trespass.

But as we’ve written, trespass does not require knowledge of the plaintiff’s ownership, or knowledge of the entry, as long as the trespass is foreseeable. “An entry may also be accomplished by setting in motion an agency which, when put in operation, extends its energy to the plaintiff’s premises to its material injury.” (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301.) Thus, even a hacker’s electronic signals have been held to be a trespass. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566, fn. 6.). “Trespass may be ‘“by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person . . . .”’” (Martin Marietta Corp. v. Insurance Co. of N.A. (1995) 40 Cal.App.4th 1113, 1132.)

The hearing is set for May 4.

You can find our articles on this story at our California Trespass Law site.

Of Good Fences, Bad Neighbors, and Recovering Legal Costs

“It is often said that good fences make good neighbors. One might wonder whether there actually is such a correlation between good fences and good neighbors and, if so, whether causality runs in the opposite direction (i.e., maybe good neighbors build good fences). But it cannot be denied that a good fence accurately demarcating the boundary between the parties’ real properties in this case could have avoided substantial expense and grief.” (Seraji v. Demirjian, Case No. G048611 (4th Dist., Div. 3 July 17, 2014) (unpublished).)

A property owner in Laguna Beach sued a neighbor for encroaching on his undeveloped parcel. The owner prevailed on his trespass and ejectment claims, but the Court of Appeal reversed on the trespass claim because the action was filed after the three-year statute of limitation. The ejectment claim was timely under the longer five-year statute.

(In fact, an ejectment claim never expires unless the encroacher can establish superior title via adverse possession or a prescriptive easement. (Harrison v. Welch (2004) 116 Cal.App.4th 1084.))

The owner also argued he was entitled to recover his attorneys’ fees. Civil Code section 3334, a trespass and ejectment statute, provides: “The detriment caused by the wrongful occupation of real property . . . is deemed to include the value of the use of the property for the time of that wrongful occupation . . . and the costs, if any, of recovering the possession.” Because attorney’s fees is not specifically mentioned in the statute, the lower court properly refused to award them. (That v. Alders Maintenance Assn. (2012) 206 Cal.App.4th 1419, 1428.)

For more on damages under Civil Code section 3334, see our blog at

“I, testator, will my property to beneficiary.”

That’s all it takes to legally will your property to someone. In Texas, anyway:

In In the Estate of Setser, the decedent signed a 1993 will naming his daughter as the sole beneficiary. No. 01-15-00855-CV, 2017 Tex. App. LEXIS 937 (Tex. App.—Houston [1st Dist.] February 2, 2017, no pet. history). Later, in 2014, he signed a hand-written will naming his good friend and roommate Heim as the sole beneficiary of his estate. This 2014 will stated: “I, Frankie Lee Setser will my property to Charles Edward Heim, 2748 County Road 32, Angleton, Texas 77515-7749.” That was it.

The trial court rejected this will as being too conclusory and vague to be operable and admitted the 1993 will to probate. Heim appealed. The court of appeals reversed, holding that the will was sufficiently written.

For more, see

Attorney gets parking ticket, files RICO lawsuit

If the continuation of our free society depends on the common decencies of certain lawyers, heaven help us. This one, thankfully now a former attorney after being disbarred in 2010, got a parking ticket and claimed that having to pay it before getting a second-level appeal violated due process and, somehow, compounded — composted? — with RICO liability.

“In Italy,” says Orson Welles’ character in the 1949 film The Third Man, “for 30 years under the Borgias they had warfare, terror, murder, and bloodshed, but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland they had brotherly love — they had 500 years of democracy and peace — and what did that produce? The cuckoo clock.”

Nearly 70 years on, we can boast having added racketeering charges against meter maids to the stock of human ingenuity. The cuckoo clock, from that vantage, is nothing to sneeze at.

California Supreme Court: Public Records Act Covers Public Officials’ & Employees’ Private Devices

In the high-profile case City of San Jose v. Superior Court, the California high court recently held: “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”

The Court explains: “The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”

If you need information from a public agency, be sure your request appropriately includes relevant electronic information that might be stored on officials’ or employees’ private devices.

“Stirring Up Suits and Quarrels”…

…used to be not only sanctionable but a crime:

“At common law, barratry was “the offense of frequently exciting and stirring up suits and quarrels” (4 Blackstone, Commentaries 134) and was punished as a misdemeanor. A statutory version of the crime survives today, although it is seldom prosecuted, perhaps because of the requirement that the proof show the defendant “excited” at least three groundless suits “with a corrupt or malicious intent to vex and annoy.” (Pen. Code, §§ 158, 159.)” (Rubin v. Green (1993) 4 Cal.4th 1187.)

“Barrator” does sound awful close to “barrister.”