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Published Decisions

Published Decisions

Nemecek & Cole’s appellate department has handled hundreds of appeals and writs before the United States Supreme Court, the Ninth and Tenth Circuit Courts of Appeals, the United States Tax Court, the California Supreme Court, and the California Courts of Appeal. Our attorneys are responsible for 58 published opinions and have made headlines and significant impact in the law through their skilled appellate advocacy. Some of the significant reported decisions include the following:

United States Supreme Court

  • Tory v. Cochran (2005) 544 U.S. 734 [Nemecek & Cole represented famed criminal defense attorney Johnnie Cochran. Whether injunctive relief may be constitutionally awarded as defamation remedy]

Ninth Circuit Court of Appeals

  • Katzir’s Floor and Home Design, Inc. v. (9th Cir. 2004) 394 F.3d 1143 [individual and alleged successor corporation added as judgment debtors is violation of due process]
  • Continental Casualty Co. v. Robsac Industries (9th Cir. 1991) 947 F.2d 1367 [leading decision in insurance coverage on abstention doctrine for parallel state and federal proceedings between insurer and insured]
  • Allen v. Crocker National Bank (9th Cir. 1984) 733 F.2d 642 [whether private right of action against banks for paying tax refund checks improperly cashed by taxpayers’ former attorney exist]

Tenth Circuit Court of Appeals

  • Cal-Am Corporation v. Spence (10th Cir. 1981) 659 F.2d 1034 [whether sublessor assignor of oil and gas lease liable for royalties and damages]

United States Tax Court

  • Naftel v. Commissioner of Internal Revenue (1985) 85 T.C. No. 30 [tax court has jurisdiction to include specific credits in deficiency computation]

United States District Court

  • Martin v. James River Insurance Company, 366 F.Supp.3d 1186 (D. Nev. 2019) [named insured’s election not to purchase uninsured motorist coverage is binding on all “insureds”]
  • James River Ins. Co. v. Medolac Labs. (C.D. Cal. 2018) 290 F.Supp.3d 956 [exclusions for breach of contract and endorsed Business Conduct exclusion preclude coverage under “Personal and Advertising Injury” for underlying business disparagement claims]
  • Defrenza v. Progressive Express Ins. Co., 345 F.Supp.3d 1243 (E.D. Cal. 2017) [Under California law, underinsured motorist carrier did not act in bad faith by failing to immediately pay out its initial, rejected settlement offer of $152,710 as an undisputed amount owed; the rejected offer did not become undisputed amount, and insured made no showing of policy permitting adjustors to advance undisputed portions of benefits prior to settlement of all claims]
  • Secard Pools, Inc. v. Kinsale Insurance Company, 318 F.Supp.3d 1147 (C.D. Cal. 2017) [intellectual property exclusion in Commercial General Liability Policy precludes coverage for false advertising claims arising out of alleged trademark infringement]
  • Centurion Med. Liab. Protective Risk Retention Grp. Inc. v. Gonzalez (C.D. Cal. 2017) 296 F.Supp.3d 1212 [claims made and reported policy requiring written notice to insurer within twenty days of “claim” was enforceable and not subject to notice prejudice rule]
  • In re Steve Sedgwick (2016) 560 B.R. 786 [dismissal based on Barton doctrine]
  • Sompo Japan Insurance Company v. Action Express, LLC (C.D. Cal. 2014) 19 F.Supp.3d 954 [summary judgment on superior equities doctrine]
  • Landstar Ranger, Inc. v. Parth Enters. (C.D. Cal. 2010) 725 F.Supp.2d 916 [transportation case where court found subject matter jurisdiction appropriate for interstate collection matter]
  • Houshang Shabani v. Classic Design Servs. (C.D. Cal. 2010) 699 F.Supp.2d 1138 [transportation case where court found entirety of plaintiff’s state law causes of action preempted by Carmack Amendment to Interstate Commerce Act (49 U.S.C. 14706)]
  • Mt. Hawley Ins. Co. v. Federal Sav. & Loan Ins. Corp. (C.D. Cal. 1987) 695 F.Supp. 469 [insurance coverage case interpreting “insured versus insured exclusion” in errors and omissions policy where FSLIC stepped into insured’s shoes to bring litigation]

California Supreme Court

  • Green v. Ralee Engineering Company (1998) 19 Cal.4th 66 [first case under contemporary California law to hold public policy in administrative regulations supports wrongful termination claim]

California Court of Appeal

  • Jacqueline B. v. Rawls (2021) 68 Cal.App.5th 243 [order granting law firm’s motion to quash affirmed]
  • Sprengel v. Zbylut (2019) 40 Cal.App.5th 1028 [law firm’s representation of limited liability company did not create duty to member in individual capacity]
  • Litinsky v. Kaplan (2019) 40 Cal.App.5th 970 [anti-SLAPP to malicious prosecution, attorney has right to rely on client]
  • Austin v. Medicis (2018) 21 Cal.App.5th 577 [imprisonment, not jail, tolls statute of limitations.]
  • Machavia v. County of Los Angeles (2017) 19 Cal.App.5th 1050 [failure to exhaust administrative remedies not subject to equitable estoppel]
  • Foxen v. Carpenter (2016) 6 Cal.App.5th 284 [clients attempt to avoid attorney malpractice statute of limitations failed.]
  • Younessi v. Woolf (2016) 244 Cal.App.4th 1137 [mandatory relief based on attorney affidavit of fault]
  • Sprengel v. Zbylut (2015) 241 Cal.App.4th 140 [first prong anti-SLAPP analysis]
  • Moua v. Pittullo, Howington, Barker, Abernathy, LLP (2014) 228 Cal.App.4th 107 [summary judgment affirmed in case where client did not follow attorney’s settlement advice]
  • Namikas v. Miller (2014) 225 Cal.App.4th 1574 [summary judgment granted in settle and sue legal malpractice case]
  • Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446 [effect of pleading allegations on whether arbitration can be compelled]
  • People ex. rel. v. Anapol (2012) 211 Cal.App.4th 809 [whether insurance claims subject to anti-slapp statute]
  • Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641 [arbitrator’s disclosure requirements]
  • Cole v. Meyer & Associates, Inc. (2012) 206 Cal.App.4th 1095 [case of first impression - can standby trial counsel can be sued for malicious prosecution]
  • M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011) 196 Cal.App.4th 554 [failure to identify litigation claim as asset in voluntary filing of Chapter 7 bankruptcy deprived moving party/debtor of standing to compel contractual arbitration]
  • Glaser, Weil, Fink, Jacobs & Shapiro, LLP v. Goff (2011) 194 Cal.App.4th 423 [parties’ dispute about whether arbitration award is binding can be judicially reviewed]
  • California Retail Portfolio Fund v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849 [writ of attachment may be granted with an arbitrable controversy only on ground the arbitration award to which applicant may be entitled may be rendered ineffectual without such an appointment]
  • Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688 [postjudgment order awarding attorney fees separately appealable]
  • Jocer v. Price (2010) 183 Cal.App.4th 559 [statute of limitations tolled while attorney absent from state]
  • Freedman v. Brutzkus (2010) 182 Cal.App.4th 1065 [attorney not liable for approving client’s settlement agreement as to “form and content”]
  • Drum v. San Fernando Valley Bar Ass’n (2010) 182 Cal.App.4th 247 [attorney cannot sue bar association for its member list]
  • Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685 [dissident class members barred from suing counsel for inadequate settlement by res judicata and collateral estoppel]
  • Fagelbaum & Heller v. Smylie (2009) 174 Cal.App.4th 1351 [arbitration waived by seeking affirmative relief]
  • Chang v. Lederman (2009) 172 Cal.App.4th 67 [estate trust beneficiary could not state claim against testator’s attorney based on attorney’s failure to modify trust to increase beneficiary’s bequest, allegedly in accordance with decedent’s wishes, as requested change not memorialized in written document]
  • Alshafie v. Lallande (2009) 171 Cal.App.4th 421 [nonresident undertaking]
  • Plumley v. Mockett (2008) 164 Cal.App.4th 1031 [denial of anti-slapp motion to malicious prosecution claim reversed on appeal because success before patent board established probable cause for underlying case]
  • Westrec Marina Management, Inc. v. Arrowhead Indem. Co. (2008) 163 Cal.App.4th 1387 [whether former employee’s complaint to California Department of Fair Employment and Housing or letter written by former employee’s attorney was a “claim” within meaning of employer’s liability policies]
  • Lincoln Place Tenants Ass’n v. City of Los Angeles (2007) 155 Cal.App.4th 425 [whether developer bound by tentative tract map]
  • Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154 [whether eviction notice is petitioning activity]
  • Lazy Acres Market, Inc. v. Tseng (2007) 152 Cal.App.4th 1431 [insurer appointed attorney had no conflict of interest; legal malpractice plaintiff must plead better result]
  • Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 1332 [governmental immunity for biking accident on city property]
  • Ross v. Kish (2006) 145 Cal.App.4th 188 [client’s liability for malicious prosecution]
  • Virtanen v. O’Connell (2006) 140 Cal.App.4th 688 [when there was no evidence that note was recorded and deed of trust did not state maturity date of note, maturity date of note was not “ascertainable from the record” and lien of deed of trust would not expire until 60 years after deed of trust was recorded]
  • Lincoln Place Tenants Ass’n v. City of Los Angeles (2005) 130 Cal.App.4th 1491 [land use case interpreting and applying terms of environmental impact report prepared for redevelopment project]
  • Nicolopulos v. Superior Court (2003) 106 Cal.App.4th 304 [application for temporary restraining order to prevent foreclosure sale of property under deed of trust held by real party in interest mortgagee]
  • Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394 [circumstances in which attorney equitably estopped from asserting statute of limitations as defense]
  • Watts v. Farmers Insurance Exchange (2002) 98 Cal.App.4th 1246 [analyzing insurance coverage of “innocent co-insured” under homeowner’s policy]
  • LeBourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049 [first case to hold individual supervisory personnel cannot be held personally liable for ADA disability discrimination and Fair Employment and Housing Act violations]
  • Reagen’s Vacuum Truck Service, Inc. v. Beaver Ins. Co. (1994) 31 Cal.App.4th 375 [insurer need not defend under employer’s liability policy for intentional aggravation claim]
  • Kane v. Hurley (1994) 30 Cal.App.4th 859 [overturning sanctions order payable to court]
  • Howard v. Superior Court (1992) 2 Cal.App.4th 745 [suit against attorney for aiding and abetting client’s fraud analogous to suit against attorney based on conspiracy with client to determine applicability of Civil Code section 1714.10]
  • Waxman v. Boren, Elperin, Howard & Sloan (1990) 221 Cal.App.3d 519 [extension to respond to cross-complaint does not bar discretionary dismissal]
  • McIntosh v. Bowman (1984) 151 Cal.App.3d 357 [jury trial waiver]