Horvitz & Levy LLP

I spoke yesterday to the The Federalist Society chapter at the University of Houston Law Center. I discussed my 10 lessons for young lawyers. I thought I would share a shorter version here and spare you the longer speech. (1) Seek out mentors for career and life advice. I received extremely impactful advice from the Ninth Circuit judge I clerked for who told me to become an appellate lawyer and even suggested Horvitz & Levy LLP as a great place to work. (2) Look for opportunities to become an invaluable expert on an area of law. When I joined my firm 23 years ago, the anti-SLAPP statute was fairly new and I happened to be assigned to a defamation case called Varian v. Delfino. The case eventually morphed into an incredibly significant jurisdictional ruling by the Supreme Court on the effect of a notice of appeal of an anti-SLAPP motion creating an automatic stay. A mentor at the firm suggested I parlay that into becoming an expert in the statute itself. Many dozens of anti-SLAPP appeals later, that was really good advice. (3) It isn't all about work. Make time for family and creating memories with them. On Monday, I'll be in New York with my adult son rooting for the Dodgers at Yankee Stadium. When he was in High School, we went to a number of World Series and other games at Dodger Stadium. (4) It's ok to make mistakes, but learn from them and don't make the same mistakes. And if your boss yells at you for making mistakes, find a new boss. (5) In this remote world, acknowledge emails from your supervisors or clients with the "I've got it" response. Don't make people guess that you are working on their project. (6) Briefs and emails should read like the New York Times and normal English. No jargon or excessive acronyms or excessive definitions of things that are obvious. Don't overload briefs with unnecessary dates or facts that don't add to your story. And most stories are best told in a chronology. (7) Find something you love to do. Law is hard work. If you don't like what you do, you will be miserable and won't do it well. (8) Make time for pro bono. We are all privileged and should give back to those in need. And by pro bono I don't mean amicus briefs in high profile Supreme Court cases where the parties already have elite counsel. Those cases are fine without amicus support. Real pro bono is representing a poor person on the merits who otherwise would not have a lawyer even if the case isn't that important in the grand scheme of things. It's important to that person and we need more people taking on those cases. (9) Be a good colleague. Help your colleagues who are sick, or who have a sick kid, or who are having a rough time at home. Be there for them and they will help you out when you need help. (10) Play litigation to win (ethically and within the rules) but be civil and kind to opposing counsel. Professional courtesy is important.

Horvitz & Levy proudly sponsors the AABA - Asian American Bar Association of the Greater Bay Area's Supreme Court Term in Review panel, taking place at UC Law SF, Deb Colloquium & Skydeck, 333 Golden Gate Avenue, 5th Floor, San Francisco, on Wednesday, October 23, 2024, from 3:00 - 4:00 PM. Panelists Justice Goodwin Liu of the California Supreme Court, Shilpi Agarwal of the American Civil Liberties Union, and Professor Easha Anand of the Stanford Supreme Court Litigation Clinic will discuss the leading cases the U.S. Supreme Court decided in its most recent term. The discussion will be moderated by former Horvitz & Levy attorney Chris Hu, Deputy Solicitor General of the California Department of Justice. To register, please click here: https://lnkd.in/geZszCXt

𝐂𝐨𝐧𝐟𝐥𝐢𝐜𝐭-𝐨𝐟-𝐢𝐧𝐭𝐞𝐫𝐞𝐬𝐭 𝐚𝐧𝐝 𝐛𝐚𝐝-𝐟𝐚𝐢𝐭𝐡 𝐞𝐱𝐜𝐞𝐩𝐭𝐢𝐨𝐧𝐬 𝐭𝐨 𝐭𝐡𝐞 𝐛𝐮𝐬𝐢𝐧𝐞𝐬𝐬 𝐣𝐮𝐝𝐠𝐦𝐞𝐧𝐭 𝐫𝐮𝐥𝐞 𝐝𝐨 𝐧𝐨𝐭 𝐚𝐩𝐩𝐥𝐲 𝐰𝐡𝐞𝐧 𝐜𝐨𝐫𝐩𝐨𝐫𝐚𝐭𝐞 𝐝𝐞𝐜𝐢𝐬𝐢𝐨𝐧𝐦𝐚𝐤𝐞𝐫𝐬 𝐚𝐜𝐭 𝐢𝐧 𝐭𝐡𝐞 𝐛𝐞𝐬𝐭 𝐢𝐧𝐭𝐞𝐫𝐞𝐬𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐜𝐨𝐦𝐩𝐚𝐧𝐲 𝑻𝒖𝒍𝒊 𝒗. 𝑺𝒑𝒆𝒄𝒊𝒂𝒍𝒕𝒚 𝑺𝒖𝒓𝒈𝒊𝒄𝒂𝒍 𝑪𝒆𝒏𝒕𝒆𝒓 𝒐𝒇 𝑻𝒉𝒐𝒖𝒔𝒂𝒏𝒅 𝑶𝒂𝒌𝒔 (2024) Plaintiff helped form a business structured as a limited liability company. The company distributed profits to its members, including plaintiff. Over time, plaintiff became inactive but continued to receive substantial profits. Tensions flared when plaintiff declined buyout offers from other members. Plaintiff later directed his attorney to send a threatening letter to various stakeholders, alleging illegal activities within the company and potential exposure to criminal liability. The company warned plaintiff he would be ejected without compensation if he did not cure his statements within 30 days. When plaintiff refused, the company ousted him, valuing his shares at zero. Plaintiff sued for breach of fiduciary duty and other claims. The Court of Appeal held the business judgment rule insulated the company. The court found the conflict-of-interest exception to the business judgment rule inapplicable because the uncontested evidence showed the company’s decisionmakers had worked in the company’s best interests to oust plaintiff. The court also concluded it was not “corporate bad faith” for the company’s decisionmakers to take action against their colleague’s attacks. There is “no precedent for extending the concept of bad faith to a situation where a company decisionmaker, while working in the company’s best interests, privately disparaged a colleague.” To view the opinion, please click here: https://lnkd.in/gEthVJQQ To view other updates, visit: https://lnkd.in/gzGQP8K9 #appellatelaw

On Sept. 24, Horvitz & Levy attorney Beth Jay proudly received ALM's 2024 Women, Influence, and Power in Law lifetime achievement award. The Lifetime Achievement Award recognizes Ms. Jay's inspiring career and enduring impact on California jurisprudence. To learn more about Beth's career achievements, please click here: https://lnkd.in/g7JcXCZi #ALMWIPL #appellatelaw

𝐋𝐚𝐧𝐝𝐨𝐰𝐧𝐞𝐫 𝐝𝐨𝐞𝐬 𝐧𝐨𝐭 𝐡𝐚𝐯𝐞 𝐝𝐮𝐭𝐲 𝐭𝐨 𝐫𝐞𝐦𝐨𝐯𝐞 𝐭𝐫𝐞𝐞 𝐭𝐨 𝐩𝐫𝐨𝐭𝐞𝐜𝐭 𝐦𝐨𝐭𝐨𝐫𝐢𝐬𝐭𝐬 𝑼𝒏𝒊𝒐𝒏 𝑷𝒂𝒄𝒊𝒇𝒊𝒄 𝑹𝒂𝒊𝒍𝒓𝒐𝒂𝒅 𝒗. 𝑺𝒖𝒑𝒆𝒓𝒊𝒐𝒓 𝑪𝒐𝒖𝒓𝒕 (𝑨𝒃𝒓𝒂𝒎𝒔) (2024) Plaintiffs died after their respective vehicles collided, veered off the highway, and struck a nearby tree located on land owned by the defendant. Relatives of the decedents sued for negligence, alleging the defendant failed “to remove the tree or take other measures to protect the public against the dangerous condition caused by the tree.” The trial court denied defendant’s motion for summary judgment, and the defendant filed a petition for a writ of mandate.  The Court of Appeal granted the writ petition and held the defendant was under no duty to remove the tree or to take other measures to protect the driving public from any dangerous condition posed by the tree. The court found no evidence that the defendant was ever notified of an issue pertaining to the tree or that the presence of the tree “increased the chances [for] a collision.” Moreover, the court found that the defendant “did not create the alleged hazard, . . . had no greater knowledge of the risk posed by the tree than the passing motorists, [and] committed no infraction, public offense or heinous act.” The court instead concluded that the California Department of Transportation, the agency responsible for highway design and maintenance, owes a duty, “when on notice, to ‘take . . . protective and remedial measures . . . for the safety’ of the motoring public.” To view the opinion, please click here: https://lnkd.in/ggDBZy-c To view other updates, visit: https://lnkd.in/gzGQP8K9

𝐂𝐨𝐮𝐫𝐭 𝐨𝐟 𝐀𝐩𝐩𝐞𝐚𝐥 𝐡𝐨𝐥𝐝𝐬 𝐩𝐫𝐨𝐟𝐞𝐬𝐬𝐢𝐨𝐧𝐚𝐥 𝐧𝐞𝐠𝐥𝐢𝐠𝐞𝐧𝐜𝐞 𝐜𝐚𝐧 𝐞𝐱𝐢𝐬𝐭 𝐢𝐧 𝐭𝐡𝐞 𝐚𝐛𝐬𝐞𝐧𝐜𝐞 𝐨𝐟 𝐩𝐫𝐢𝐯𝐢𝐭𝐲 𝑳𝒚𝒏𝒄𝒉 𝒗. 𝑷𝒆𝒕𝒆𝒓𝒔𝒐𝒏 & 𝑨𝒔𝒔𝒐𝒄𝒊𝒂𝒕𝒆𝒔 (2024) The plaintiff entered a construction project contract with a general contractor. The general contractor then engaged the defendant to conduct a geotechnical inspection. Defendant’s report found the project footing to be “acceptable and suitable,” but the footing collapsed, and the house subsided. Plaintiff sued the geotechnical inspector for breach of contract, negligence and nuisance. The trial court granted defendant’s motion for summary judgment, finding the defendant inspector had no contract with plaintiff and no legal liability to plaintiff under any negligence or nuisance theory. The Court of Appeal reversed and found a triable issue of material fact regarding the plaintiff’s professional negligence claim. The court concluded that plaintiff was an intended beneficiary of the defendant’s inspection and there was a reasonable certainty plaintiff’s injury derived from the defendant’s inspection. To view the opinion, please click here: https://lnkd.in/gHgBAWZc To view other updates, visit: https://lnkd.in/gzGQP8K9 #appellatelaw #Californialaw

https://lnkd.in/gpBeCBPY Excited to be part of the team along with our friends at Gibson Dunn and BRIGHT AND BROWN, ATTORNEYS AT LAW who successfully convinced the California Supreme Court to grant our petition for review to decide the question whether the Court of Appeal can remand an erroneous new trial grant back to the trial court for further consideration. This is an important issue of appellate procedure in which the appellate courts are divided. I look forward to briefing the issue on the merits in the Supreme Court on behalf of our client Chevron.

𝐍𝐨 𝐩𝐡𝐲𝐬𝐢𝐜𝐢𝐚𝐧-𝐩𝐚𝐭𝐢𝐞𝐧𝐭 𝐫𝐞𝐥𝐚𝐭𝐢𝐨𝐧𝐬𝐡𝐢𝐩 𝐰𝐡𝐞𝐫𝐞 𝐩𝐡𝐲𝐬𝐢𝐜𝐢𝐚𝐧 𝐝𝐨𝐞𝐬 𝐧𝐨𝐭 𝐚𝐬𝐬𝐮𝐦𝐞 𝐫𝐞𝐬𝐩𝐨𝐧𝐬𝐢𝐛𝐢𝐥𝐢𝐭𝐲 𝐟𝐨𝐫 𝐫𝐞𝐪𝐮𝐞𝐬𝐭𝐞𝐝 𝐜𝐚𝐫𝐞 𝐨𝐫 𝐚𝐟𝐟𝐢𝐫𝐦𝐚𝐭𝐢𝐯𝐞𝐥𝐲 𝐞𝐧𝐠𝐚𝐠𝐞𝐬 𝐢𝐧 𝐩𝐚𝐭𝐢𝐞𝐧𝐭 𝐜𝐚𝐫𝐞 𝑴𝒄𝑪𝒖𝒓𝒓𝒚 𝒗. 𝑺𝒊𝒏𝒈𝒉 (2024) The Court of Appeal considered whether an on-call physician owed a duty of care to a patient based on the physician’s review of the decedent’s condition and decision not to treat the patient. The court concluded that, while the defendant discussed treatment options with the patient’s treating physician, the defendant’s decision to not treat the patient, did not create a physician-patient relationship as the defendant did not assume any responsibility for the patient’s care and did not affirmatively engage in caring for the patient. The court made clear that consulting with or providing recommendations to a treating physician, without any affirmative care or contract with the patient, does not establish a physician-patient relationship.  In reaching this conclusion, the court noted that “a physician-patient relationship arises as a result of a contract, express or implied, that the doctor will treat the patient with proper professional care.” The relationship comes into existence “when the physician takes charge of a case and is employed to attend a patient[.]” or when the physician “affirmatively treat[s] or directly advise[s] the patient.” To view the opinion, please click here: https://lnkd.in/gTXdrCZe To view other updates, visit: https://lnkd.in/gzGQP8K9 #dutyofcare #healthcarelaw #appellatelaw

𝐂𝐨𝐦𝐦𝐮𝐧𝐢𝐜𝐚𝐭𝐢𝐨𝐧𝐬 𝐫𝐞𝐥𝐚𝐭𝐞𝐝 𝐭𝐨 𝐦𝐞𝐝𝐢𝐜𝐚𝐥 𝐩𝐞𝐞𝐫 𝐫𝐞𝐯𝐢𝐞𝐰 𝐚𝐫𝐞 𝐩𝐫𝐢𝐯𝐢𝐥𝐞𝐠𝐞𝐝 𝐚𝐧𝐝 𝐜𝐚𝐧𝐧𝐨𝐭 𝐟𝐨𝐫𝐦 𝐭𝐡𝐞 𝐛𝐚𝐬𝐢𝐬 𝐟𝐨𝐫 𝐚 𝐫𝐞𝐭𝐚𝐥𝐢𝐚𝐭𝐢𝐨𝐧 𝐜𝐥𝐚𝐢𝐦 𝑫𝒊𝒈𝒏𝒊𝒕𝒚 𝑯𝒆𝒂𝒍𝒕𝒉 𝒗. 𝑴𝒐𝒖𝒏𝒕𝒔 (2024) A hospital filed a claim against a surgeon to recover an advance payment after the surgeon was asked to resign following an investigation into his clinical competence. The defendant filed a cross-complaint alleging employment retaliation. The hospital filed an anti-SLAPP motion to strike the cross-complaint. The trial court, after first denying the motion, granted the anti-SLAPP motion following a remand from the Court of Appeal. The trial court concluded that the plaintiff’s conduct during the medical peer review was protected by the litigation and common interest privileges, and barred by the statute of limitations. The Court of Appeal affirmed the trial court’s decision to grant the anti-SLAPP motion. The Court noted that the common interest privilege extends to communications made “without malice” “regarding the conditions under which [the defendant] performed surgery.” “Unless [the communications] were malicious, [the plaintiff’s] communications in this category were privileged. Privileged communications cannot form the basis of a claim for retaliation.” The Court also noted that the litigation privilege “confers an absolute privilege on communications made as part of a judicial or other ‘truth-seeking’ official proceeding,” including “communications made in connection with a medical peer review proceeding.” The Court reasoned “the privilege is intended to afford participants unfettered access to the proceeding without fear of subsequent derivative tort actions.” To view the opinion, please click here: https://lnkd.in/gu9yQhR9 To view other updates, visit: https://lnkd.in/gzGQP8K9 #healthcarelaw #californialaw #antiSLAPP

Last week, I was lucky enough to attend the Leadership Council on Legal Diversity (LCLD)'s annual membership meeting in Washington, D.C. I want to thank the whole team at the LCLD for putting together the event's excellent program. It was fantastic and gave me invaluable tips on creating actionable plans to further diversity within my firm. I even got to sneak out and go sightseeing! #LCLDnation #DEI