Nathan D. Wirtschafter
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The Wirtschafter Law Reporter

Vol. III, Q1

The Wirtschafter Law Reporter (“WLR”) is a quarterly publication of Nathan D. Wirtschafter Corp.

You may reach us by dialing (818) 660-2518, or +972-54-210-1776, or, please visit our website at www.ndwlaw.com, or contact us at ndw@ndwlaw.com.

Thank you,


Nathan Wirtschafter

Contents:

 

SLAPP Update: Extortion Is Not Protected Speech.

California protects constitutional rights such as public speech and the right to redress.  Lawsuits which deter a person from exercising those rights are called “Strategic Lawsuits Against Public Participation” or “SLAPP” for short.

A person sued for the exercise of his or her free constitutional rights can file a special motion to strike, called an “anti-SLAPP motion,” to have the entire complaint, or portions of it, stricken without a trial.  This is a powerful weapon for the defense, because a defendant can win the lawsuit and attorneys fees in a successful anti-SLAPP motion.

In a recent case, Mr. Wirtschafter worked with counsel in California to successfully oppose an anti-SLAPP motion in an extortion case. 

In that case, an employee threatened to report an employer to public authorities “unless” the employee was paid money.  The trial court noted that an extortionist’s threats have no constitutional protection as free speech.  See Flatley v. Mauro (2006) 39 Cal.4th 299.  Since the employee’s demand was attempted extortion, it denied both his “anti-SLAPP motion” and his request for attorneys fees.


California Supreme Court Rules on Foreign Money Judgments.

The California Supreme Court recently decided Manco Contracting Co. v. Bezdikian (2008) 45 Cal. 4th 192 which involved a decision by a court in Qatar.  There, the debtor fled Qatar for California, where the creditor sued him.

Overturning established precedent, the California Supreme Court held that a lawsuit to enforce the foreign money judgment could be filed when the law of the jurisdiction which issued the judgment considered the decision to be “final.”  In California, a decision is not final until the last appeal is exhausted, but in United States federal district court, along with other countries such as England and Romania, a judgment is “final” even when all appeals have not been decided.

In addition, the California Supreme Court held that there was a ten-year statute of limitations on actions based on a foreign country judgment. 

Please contact Mr. Wirtschafter for a free consultation about collecting a foreign judgment in California.

 

Electronic Filing and the Ultimate Deadline: Sixty Days to File the Notice to Appeal.

In several counties in California, including both Santa Clara County and Contra Costa County, courts have adopted orders mandating electronic filing of court documents in complex litigation cases.  (Federal courts and bankruptcy courts, especially in the Ninth Circuit, are also moving to electronic document filing.)

In a case decided on January 30, 2009, Insyst Ltd. v. Applied Materials Inc. (2009) 170 Cal. App.4th 1129, the trial court provided email service of the judgment on April 11, 2008 and the clerk mailed notice of entry of judgment via letter on April 15, 2008.  Insyst filed its notice of appeal on June 11, 2008, 61 days after email service of the judgment.

Perhaps the most severe rule of appellate practice is that the appellant, the person seeking to change the lower court’s judgment, must file a notice of appeal within 60 days.  The rule is jurisdictional, which means that the appellate court generally lacks authority to hear the appeal if the 60 days have passed.

However, the court of appeal noted that the e-mail service of the judgment on April 11, 2008 included only a hyperlink to the judgment, not a file-stamped copy of the judgment attached to the email.  Since the only item served was a hyperlink, Insyst was not served the judgment until April 15, 2008.  In other words, serving the hyperlink failed to start the 60-day clock on the notice of appeal.

There is another recent case in this area, issued on October 27, 2008, which reaches a slightly different conclusion.  The appellate court in Citizens for Civic Accountability v. Town of Danville (2008) 167 Cal. App. 4th 1158 (concerning petition for mandate against approval of residential development project) held that electronic notice of the judgment, by an e-mail, does not trigger the 60-day clock.  The appellate court found that “mail” meant an item presented by physical delivery to the United States Postal Service, not an item transmitted by electronic mail.

Mr. Wirtschafter’s office has been filing documents electronically for years.  In arbitrations, documents are often filed by email, and in court cases, the documents are either filed electronically, or are taken by the local attorney service to court.


Challenge to Collection Fee Denied.

In a recent case decided under the federal Fair Debt Collection Practices Act (FDCPA) and California’s Unfair Competition Law, the court held that a property management company could assess a 40% collection fee on a delinquent account for a time-share interest in a condominium property.  See  Dey v. Continental Cent. Credit (2008) 170 Cal. App.4th 721.

After finding that the plaintiff did not allege how the FDCPA forbade a homeowner’s association from setting a collection fee, the court of appeal examined the alleged penalty under California law.  Using authority grounded in homeowner’s association law, the court of appeal found that the board of directors was not restricted in setting fees for its services, except by competition.

Please contact Mr. Wirtschafter for a free consultation about collecting debts or judgments in California.


 
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