Experience Matters

When your trial does not result in the desired outcome for either you or the opposition, an appeal usually follows.  Lurie, Zepeda, Schmalz, Hogan & Martin’s attorneys apply over one hundred years of collective experience representing appellants and respondents.  We practice regularly before the California Court of Appeal and have argued before the U.S. Ninth Circuit Court of Appeals and California and Utah Supreme Courts.  Several of our attorneys are licensed to practice before the United States Supreme Court. Our lawyers were lead counsel or participated in the following precedent-setting, published appellate decisions.

Previous Appellate Decisions

  • After successfully defending apartment developers from bank’s judicial foreclosure action, obtaining dismissal of judicial foreclosure claims by demurrer, and winning attorney’s fees. When the bank then sought to compel judicial reference of the developers’ lender liability cross-complaints, notwithstanding opposition based upon interpretation of ADR agreement and bank’s waiver through years of inaction, the trial court erroneously ordered the parties to arbitration. Mr. Zepeda then obtained peremptory writ from Court of Appeal reversing order compelling arbitration, securing jury trial of lender liability claims, allowing both cases to be settled at beginning of trial.

  • After defending company’s former CEO against private equity fund/majority shareholder’s claims for over $40 million based on former CEO’s alleged complicity in fraud by securing dismissal of all claims by way of demurrers, successfully persuaded Court of Appeal to affirm in full in Kayne Anderson Private Investors v. Colak, No. B239111, 2013 WL 2099228 (Cal. Ct. App. May 16, 2013).

  • Following a trial in Los Angeles Superior Court over whether the wife had to reimburse the husband for post-dissolution litigation costs arising from the pre-separation sale of the husband’s electronics business, the trial court found that the wife was not obligated to reimburse the husband for any of the litigation costs. The Court of Appeal affirmed in part and reversed in part, finding that, pursuant to Family Code section 2556, the litigation costs were community debts which has been omitted from the stipulated marital dissolution judgment that divided the couple’s assets and obligations.  As a result, the appellate court found that the wife was obligated to pay 50% of the costs to settle the underlying litigation, but she was not obligated to reimburse the husband for his attorney’s fees and costs in that litigation because he failed to show during trial that any amount of his attorney’s fees and costs was reimbursable by the community.  Prevailing party attorney’s fee award to wife for fees in the dissolution case was reversed and remanded as a result of the partial reversal. In re Marriage of Nassimi, 3 Cal.App.5th 667 (2016) (Second Dist. Court of Appeal, Division 4) (Review Denied 12/14/16).

  • As lead plaintiff attorney, favorably settled multi-million-dollar legal malpractice/architect’s liability/breach of fiduciary duty case involving the sale and development of an historic town square in Provo, Utah.  Successfully briefed and argued the case to the Utah Supreme Court in Cathco, Inc. v. Valentiner, etc., 944 P.2d 365 (Utah 1997).  

  • Lead trial attorney for major airline in its breach of fiduciary duty and legal malpractice lawsuit against a prominent Los Angeles law firm. Won plaintiff’s verdict on breach of fiduciary duty and malpractice causes of action against defendants following three-week jury trial in Los Angeles Superior Court. Lead appellate attorney on the case which was affirmed on appeal and which resulted in an important legal ethics opinion from the Court of Appeal in American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, et al., 96 Cal. App. 4th 1017 (2002).

  • Lead attorney in California Supreme Court arguing for physician in a case involving fair hearing issues in hospital peer review hearings. Also represented the physician at the superior court mandamus proceeding and on appeal in the Court of Appeal in El-Attar v. Hollywood Presbyterian Medical Center, 56 Cal.4th 976 (2013). 

  • Successfully obtained reversal of trial court’s judgment on issue of clients’ implied easement rights with respect to a parking lot adjoining clients’ apartment complex.   

  • Won jury verdict of $3 million, increased to $4.2 million with interest, in breach of contract action for attorney-client for over 20 years’ legal fees due from his former client.  Jury ruled in  attorney-client’s favor for both breach of contract and professional malpractice. Affirmed on appeal in full in Rufus Von Thulen Rhoades v. William M. Lansdale et al.

  • Following a jury verdict in client’s favor, made a post-trial motion for attorney’s fees for willful and malicious misappropriation of trade secrets under the California Uniform Trade Secrets Act (CUTSA).  After the trial court denied our motion, the Court of Appeal overturned the trial court’s decision based on our demonstration that the trial court had applied the wrong burden of proof at trial.

  • Represented McDonnell Douglas Corporation in a four-month jury trial in state court and on appeal for claims of fraud resulting from a 1978 aircraft accident at LAX.  At issue were the designs of the landing gear, tires, brakes, wheels, antiskid systems and slide/rafts.   After Continental prevailed, participated in drafting the appellate briefs.  

  • Represented McDonnell Douglas Corporation in complex litigation in Federal Court and on appeal for claims of breach of contract, strict liability, negligence, and breach of warranty resulting from a 1978 aircraft accident at LAX.  At issue were the designs of the landing gear, tires, brakes, wheels, antiskid systems and slide/rafts.  Summary judgment on the negligence and product liability issues was granted in client’s favor in the federal action.  Participated in drafting appellate briefs prior to matters being affirmed on appeal.  

  • In the first case ever filed involving a tort in outer space, successfully defended McDonnell Douglas Corporation (“MDC”) against Western Union’s insurers when MDC’s Westar VI satellite failed to reach geosynchronous orbit.  Western Union sued in subrogation for negligence and strict liability and sought damages of $105 million.  Won on summary judgment, which was affirmed on appeal in Appalachian Insurance Co., et al. v. McDonnell Douglas Corporation, et al. (1989) 214 Cal.App.3d 1.  

  • Represented Flavurence Corporation in its appeal of the Bankruptcy Court’s denial of client’s $2.4 million breach of contract and $2.3 million lost profits claims against Original New York Seltzer’s bankruptcy trustee.  Both claims related to contractual minimum product purchase requirements.  The case settled on terms favorable for client after it was fully briefed and oral argument held, but before the Bankruptcy Appellate Panel issued a ruling.  

  • As partner-in-charge, defended McDonnell Douglas Corporation (“MDC”) in hundreds of lawsuits filed in multiple jurisdictions nationwide arising from the United Airlines DC-10 crash at Sioux City, Iowa on July 19, 1989 in which 112 of 296 people on-board died.  Counseled MDC at the NTSB hearings and directed the defense and settlement of actions on behalf of MDC involving complicated product liability and negligence issues concerning the design of the DC-10’s hydraulic system; engine design and containment; aircraft maintenance; pilot performance; and, “crashworthiness.”  The litigation presented significant choice of law problems and damages issues.  The consolidated federal actions settled on the first day of trial, immediately before the impanelment of the jury.  In Re:  Air Crash Disaster at Sioux City, Iowa on July 19, 1989 (Jud.Pan.Mult.Lit. 1989) 128 F.R.D. 131, MDL No. 817, Northern District of Illinois, Eastern Division (Chicago); Judge Suzanne B. Conlon.  Published opinions:   In Re Air Crash Disaster at Sioux City, Iowa on July 19, 1989 (N.D.Ill. 1990) 133 F.R.D. 515; In Re Air Crash Disaster at Sioux City, Iowa on July 19, 1989 (N.D.Ill. 1990) 131 F.R.D. 127; In Re Air Crash Disaster at Sioux City, Iowa on July 19, 1989 (N.D.Ill. 1990) 734 F.Supp. 1425; In Re Air Crash Disaster at Sioux City, Iowa on July 19, 1989 (N.D.Ill. 1991) 760 F.Supp. 1283; In Re Air Crash Disaster at Sioux City, Iowa on July 19, 1989 (N.D.Ill. 1991) 780 F.Supp. 1207; In Re Air Crash Disaster at Sioux City, Iowa on July 19, 1989 (N.D.Ill. 1991) 781 F.Supp. 1307.  State court actions filed nationwide with most of the non-removable state court actions filed in Cook County, IL; St. Louis, MO.; Baltimore, MD.; Pittsburgh, PA. The actions in Illinois state court were appealed.  In Re Air Crash Disaster at Sioux City Iowa on July 19, 1989 (1st Dist. 1994) 259 Ill.App.3d 231, 631 N.E.2d 1302.

  • Defended TIG Insurance Company (formerly Transamerica Insurance Company) in a one-month jury trial over a bad faith claim against Talbot Partners.  Claim resulted from a breach of performance and payment bond issued by client to Cates Construction, a real estate developer.  Established strategy for appeal wherein the California Supreme Court reversed the trial court’s $28 million decision in a landmark published decision in TIG’s favor.  The court found that the developer and the bank could not recover in tort for the surety’s alleged breach of the covenant of good faith and fair dealing implied in the performance bond as a matter of law.  The court held that contract remedies provide adequate compensation for breach of a construction bond and a surety cannot be liable for insurance bad faith.  

  • Successfully represented debtors on appeal after the Bankruptcy Court denied their motion to hold a lender in contempt for attempting to collect on a debt that client contended had been discharged.  The lender’s defense posited that the parties had entered into a new loan agreement, post-discharge.  The Court of Appeals reversed the Bankruptcy Court’s order and remanded the case the Bankruptcy Court for a trial on the debtors’ contempt claims against the lender.  The matter subsequently settled on very favorable terms for client.

  • Achieved favorable ruling in trial court and on appeal for Taiwanese client, a specially appearing defendant, in a lawsuit filed by a Cayman Island company for breach of contract and other torts relating to the sale of Razor scooters.   Successful representation of client was based on grounds that the court could not exercise personal jurisdiction over the Taiwanese company, and on the grounds that California was an inconvenient forum for this litigation.  The California Court of Appeal affirmed the dismissal, finding that the trial court did not abuse its discretion in dismissing this case to client’s benefit based on a lack of personal jurisdiction.      

  • Successfully defended Tasty Fries, Inc., in district court and on appeal, against Silver Leaf, LLC regarding a $100 million master sales and marketing agreement.  Silver Leaf filed the lawsuit to prevent Tasty Fries from terminating the agreement and moved for a preliminary injunction, which was denied by the district court

  • Defended a lawyer against a Writ of Mandate that arose from client’s cross complaint for equitable indemnity against petitioners.  The court overruled petitioners’ demurrer, and the Court of Appeal granted an alternative writ.  The issue in the appellate court was whether a lawyer who has been sued by a former client for professional negligence can seek equitable indemnity from a lawyer who subsequently represented the client in the same underlying proceeding, but not in the legal malpractice action.   The Court of Appeal, in a matter of first impression, held that public policy barred equitable indemnity under these circumstances. 

  • After the Superior Court denied client’s motions to quash service of a summons and cross-complaint in a contract dispute due to jurisdictional issues, won on appeal.  Client was awarded attorneys’ fees and costs.  

  • Successfully obtained affirmance on appeal by beneficiary from various orders, including orders (1) denying petition to remove client/trustee following trial, (2) finding client/trustee did not breach fiduciary duty, (3) awarding attorney and trustee fees paid from trust, (4) approving interim accounts over beneficiary’s objections, and (5) awarding a surcharge against beneficiary for objecting to trustees’ account without reasonable cause and in bad faith pursuant to Probate Code § 17211(a).

  • Successfully argued appeal on behalf of formerly pro se litigant, obtaining the first outright reversal for Public Counsel’s Appellate Law Program.

  • Successfully represented national retailer client in a month-long trial and on appeal against a real estate developer over a $5 million injunction bond for a prospective real estate development.  On appeal, developer argued the trial court incorrectly interpreted the language of the injunction and incorrectly awarded costs. The Court of Appeal affirmed in full the judgment entered in favor of our client and the award of costs exceeding $300,000.

  • Obtained peremptory writ of mandamus from Court of Appeal where trial judge had erroneously ordered arbitrator to decide a motion to expunge lis pendens, even though such relief was beyond arbitrator’s jurisdiction.

  • Obtained peremptory writ of mandamus from Court of Appeal where trial court had erroneously ordered case into arbitration. After remand to trial court, defeated commercial bank defendant’s motion to compel alternative dispute resolution on grounds of waiver, thus allowing client’s extensive claims for lender liability to proceed to jury trial.

  • Achieved unanimous decision in client’s favor in Semtek International Incorporated v. Lockheed Martin Corporation, 531 U.S. 497 (2001), a decision ranked by Harvard Law Review as one of the top 15 for that  Supreme Court session and now required reading in virtually every law school’s civil procedure class. After Semtek’s breach of contract claim and various business torts against Lockheed Martin were dismissed in federal court under California’s statute of limitations, client re-filed in Maryland, which had a longer statute of limitations.  The Maryland court also dismissed the case, interpreting the Federal Rules to require that the California dismissal be treated as if it were on the merits rather than a procedural statute of limitations dismissal. While unsuccessfully pursuing relief in   Maryland’s appellate courts, engineered and preserved arguments that allowed client to obtain U.S. Supreme Court review. Those arguments were well-received by the Supreme Court, resulting in a 9-0 reversal and reversal of numerous federal appellate holdings to the surprise of nearly all leading legal scholars.