mclellan-law-group

Claire Melehani Sworn In As 2026 President of the Santa Clara County Bar Association

Tue, 17 Mar 2026 12:58:59 GMT

Today marks a meaningful milestone
in my legal career

Claire Melehani

I was sworn in as the 2026 President of the Santa Clara County Bar Association — an organization that has profoundly shaped my development as an attorney. The SCCBA has connected me with exceptional mentors, colleagues, and opportunities for professional growth throughout my career.

Now I have the privilege of leading this vital organization for the next year, and I'm energized about the work ahead. We'll continue strengthening our legal community, supporting our members, and advancing the quality of legal services in Santa Clara County.

If you're an attorney in Santa Clara County or interested in the work local bar associations do, I invite you to follow along. I'll be sharing updates about our initiatives and progress throughout the year.

Thank you for your continued support. Here's to making 2026 a year of meaningful impact for our legal community.

When a Contract Isn’t Worth the Paper It’s On: Key Mistakes That Void Agreements in California

Tue, 20 Jan 2026 18:54:37 GMT

When a Contract Isn’t Worth the Paper It’s On: Key Mistakes That Void Agreements in California

Steven McLellan & Claire Melehani

Not every signed contract is enforceable—and relying on a defective agreement can be a costly mistake.

California contract law is unforgiving when key elements are missing or improperly drafted.

Common Contract Defects

Contracts may be invalid due to:

Lack of mutual assent
Unlawful or unconscionable terms
Failure of consideration
Statutory violations specific to California

Even small drafting errors can have major consequences.

Why “Templates” Often Fail

Generic or AI-generated contracts often:

Ignore California-specific requirements
Conflict with public policy
Fail under real-world disputes

Courts do not fix bad contracts—they enforce or void them.

What Happens When a Contract Fails

A defective contract can lead to:

Loss of expected revenue
Inability to enforce rights
Exposure to counterclaims

Litigation then shifts from enforcement to damage control.

McLellan Law Group, LLP helps clients evaluate contract strength before disputes arise—and defend their interests when they do.

Guardianship Battles and Conservatorship Red Flags: What Families Need to Watch For in California

Tue, 20 Jan 2026 18:46:14 GMT

Guardianship Battles and Conservatorship Red Flags: What Families Need to Watch For in California

Steven McLellan & Claire Melehani

Guardianships and conservatorships are meant to protect vulnerable individuals—but when mismanaged, they can become vehicles for abuse.

Families often sense something is wrong long before they know what steps to take.

Common Red Flags

Warning signs may include:

Sudden isolation of the protected person
Unexplained financial withdrawals
Changes to estate plans under pressure
Resistance to transparency or oversight

These issues may indicate undue influence or breach of fiduciary duty.

Fiduciary Duties Under California Law

Guardians and conservators owe strict duties of:

Loyalty
Care
Full disclosure

Violations can result in removal, surcharge, and personal liability.

When Court Intervention Is Necessary

Legal action may be required to:

Compel accountings
Remove or replace fiduciaries
Recover misappropriated assets
Protect future inheritance

Early intervention can prevent irreversible harm.

At McLellan Law Group, LLP, we approach these matters with both legal precision and sensitivity to family dynamics.

Easements and Encroachments in California Property Disputes: Your Rights Explained

Tue, 20 Jan 2026 18:39:51 GMT

Easements and Encroachments in California Property Disputes: Your Rights Explained

Steven McLellan & Claire Melehani

Real estate disputes aren’t always about ownership—often, they’re about use.

Easements and encroachments can quietly reduce property value, interfere with development, and spark expensive litigation.

What Is an Easement?

An easement grants someone else the right to use part of your property for a specific purpose, such as:

Driveway access
Utility lines
Drainage

Some easements are recorded. Others arise through long-term use or necessity.

Encroachments: A Different Problem

An encroachment occurs when a structure or improvement—such as a fence, wall, or building—extends onto neighboring property without permission.

Encroachments can:

Complicate sales and refinancing
Trigger boundary disputes
Lead to court-ordered removal in extreme cases

Why These Disputes Escalate

Property owners often discover issues only when:

Selling or refinancing
Renovating or developing
Receiving a neighbor’s demand letter

At that point, emotions and financial stakes are already high.

Legal Remedies and Strategy

Resolution may involve:

Quiet title actions
Declaratory relief
Negotiated boundary agreements
Injunctions or damages

The best outcome depends on timing, documentation, and long-term property goals.

McLellan Law Group, LLP advises property owners with a focus on protecting value—not just winning arguments.

Silent Disputes: How Minority Shareholders Can Stop Unfair Business Decisions Before They Escalate

Tue, 20 Jan 2026 17:54:34 GMT

Silent Disputes: How Minority Shareholders Can Stop Unfair Business Decisions Before They Escalate

Steven McLellan & Claire Melehani

Not all business disputes start loudly. Many begin quietly—inside boardrooms, email chains, and financial statements that don’t quite add up.

Minority shareholders are often the last to realize their rights are being compromised.

The Hidden Risk of Majority Control

In closely held businesses, majority owners often control:

Financial decisions
Access to company information
Compensation and distributions

When that power is misused, minority shareholders may experience:

Suppressed dividends
Exclusion from decision-making
Self-dealing transactions

These actions may be legal—or they may constitute breach of fiduciary duty.

Early Warning Signs

Minority shareholders should take action if they notice:

Delayed or incomplete financial disclosures
Sudden changes in management compensation
Asset transfers to related parties
Pressure to sell shares at a discount

Waiting too long can limit available remedies.

Legal Tools Available Under California Law

Depending on the circumstances, minority shareholders may pursue:

Claims for breach of fiduciary duty
Shareholder derivative actions
Accounting demands
Judicial dissolution or buy-out remedies

The key is acting strategically before the dispute hardens into full-scale litigation.

Strategic Intervention Matters

Early legal guidance can:

Preserve leverage
Prevent further financial harm
Open the door to negotiated resolutions

At McLellan Law Group, LLP, we help business owners protect their interests while minimizing unnecessary escalation.

When Non-Compete Agreements Are Enforceable in California: What Employees and Employers Should Know

Tue, 20 Jan 2026 17:41:40 GMT

When Non-Compete Agreements Are Enforceable in California: What Employees and Employers Should Know

Steven McLellan & Claire Melehani

California is famously hostile to non-compete agreements—but that doesn’t mean every restriction on post-employment conduct is automatically illegal.

Both employees and employers are often surprised to learn where the real legal boundaries are.

The General Rule in California

Under California Business & Professions Code section 16600, contracts that restrain someone from engaging in a lawful profession, trade, or business are void as a matter of law . In plain terms, most non-compete agreements are unenforceable.

This rule exists to promote employee mobility and competition—but it is not absolute.

The Exceptions Most People Miss

While traditional non-competes are generally unenforceable, California law does allow certain post-employment restrictions , including:

Sale of a business: Non-competes may be enforceable when tied to the sale of goodwill or ownership interests
Trade secret protection: Employers may prohibit the use or disclosure of confidential information
Narrow customer non-solicitation provisions (when carefully drafted and tied to trade secrets)

What matters is how the restriction is written and enforced , not just the label used.

The Risk of Overreaching Agreements

Employers who rely on outdated or overly broad non-compete language risk more than unenforceability. They may face:

Claims for unfair competition
Exposure under California’s Private Attorneys General Act (PAGA)
Civil penalties for attempting to restrain lawful employment

Employees, on the other hand, may unnecessarily limit career opportunities because they assume an agreement is valid when it is not.

What To Do If You’re Facing a Non-Compete

Before signing—or relying on—a non-compete agreement, it’s critical to evaluate:

Whether the restriction is tied to a lawful exception
Whether it actually protects trade secrets
Whether it goes beyond what California law allows

At McLellan Law Group, LLP, we help both employees and businesses navigate these issues strategically, before they turn into litigation.

McLellan Law Group, LLP Nominated as Rising Stars in the 2025 LMBD Awards

Tue, 19 Aug 2025 19:05:23 GMT

McLellan Law Group, LLP Nominated as Rising Stars in the 2025 LMBD Awards

Claire Melehani & Steven McLellan

We are excited to share some incredible news—McLellan Law Group, LLP has been nominated as a Rising Star in the 2025 Law Firm Marketing & Business Development (LMBD) Awards! ��

This prestigious recognition highlights the creativity, innovation, and impact of our marketing work in the legal industry. At McLellan Law Group, LLP, we are committed not only to providing exceptional legal representation but also to building strong, meaningful connections with our clients and community. Our marketing initiatives are designed with the same philosophy we bring to our legal practice: clarity, strategy, and a client-first approach.

The Rising Stars category shines a spotlight on firms who are breaking new ground in how law firms communicate, educate, and engage. Being recognized in this way is a testament to the hard work of our entire team—and the trust and support of our clients and colleagues.

Now, we need your help!
�� Voting is open, and we’d be honored if you would take a moment to support us.

�� When casting your vote, please select Claire Melehani of McLellan Law Group, LLP.
�� Click here to cast you vote!

Your vote not only supports our firm but also recognizes the importance of innovative, client-focused marketing in today’s legal landscape. Thank you for helping us continue to grow and serve with excellence!

Two Rising Stars, One Mission: Excellence in Client Advocacy

Tue, 08 Jul 2025 19:01:17 GMT

McLellan Law Group, LLP Celebrates 2025 Northern California Rising Stars Recognition

We’re honored to share some exciting news from McLellan Law Group, LLP: both Steven McLellan and Claire Melehan i have been named to the 2025 Northern California Rising Stars list by Super Lawyers.

This prestigious recognition is awarded to only 2.5% of attorneys in California each year. Selections are made through a rigorous, multi-phase process that includes independent research, peer nominations, and evaluations of professional achievement.

A Milestone Year for Claire and Steven

For Claire Melehani , this marks her fifth Rising Stars recognition—and her fifth consecutive year receiving the honor (2021–2025). Her commitment to client-centered advocacy, sharp legal insight, and relentless pursuit of excellence have made her a trusted name in California employment and litigation law.

For Steven McLellan , this is his fourth Rising Stars selection and fourth consecutive year (2022–2025) earning this distinction. Known for his strategic approach and thoughtful representation, Steven continues to stand out for his dedication to achieving results for the individuals and business owners he represents.

What This Means for Our Clients

At McLellan Law Group, LLP, awards like these aren’t just personal achievements—they reflect the collective work ethic, values, and mission of our firm. We believe in delivering smart, efficient, and individualized legal solutions for every client we serve. Recognition from our peers reinforces what drives us every day: helping Californians protect what matters most.

As we celebrate this milestone, we remain focused on the future—and grateful to the clients, colleagues, and community members who trust us with their most important legal matters.

Thank You

To our clients: thank you for choosing us to be part of your story. To our peers: thank you for the recognition. And to our team: your excellence makes everything possible.

– Claire & Steven Partners,
McLellan Law Group, LLP

McLellan Law Group Featured by Insider Weekly as Go-To Resource for Tech Workers Facing Layoffs

Tue, 15 Apr 2025 15:33:12 GMT

We’re excited to share that McLellan Law Group, LLP was recently featured in Insider Weekly as a key resource for technology employees in California grappling with sudden layoffs and complex severance agreements. In the article, our firm’s insights on navigating employment disputes and protecting workers’ rights were highlighted, underscoring our commitment to guiding clients through uncertain times.

Serving Tech Workers Statewide

The article spotlighted real-life scenarios in which our team provided tailored counsel to workers facing tight severance deadlines, complex termination clauses, and sudden transitions into a competitive job market. Our in-depth understanding of workplace disputes and layoff-specific challenges, including protections for older employees and how to detect unfair severance terms, proved invaluable to readers seeking real-time guidance.

Employment Law Consultations for Californians

At McLellan Law Group, LLP, we’re committed to protecting employees’ rights. If you’re negotiating a severance package or deciding whether to accept an offer versus pursuing a lawsuit, our experienced employment attorneys can provide tailored advice to safeguard your interests. Request a free consultation today to discuss your situation and explore your legal options. We’re here to guide you every step of the way.

Understanding Partition Actions in California: Process, Key Steps, and Legal Protections

Fri, 21 Mar 2025 15:18:21 GMT

Understanding Partition Actions in California: Process, Key Steps, and Legal Protections

Steven McLellan

When it comes to co-owning property in California, conflicts can sometimes arise. If you’re in a situation where two or more parties own real estate and can’t agree on how to manage it—whether to sell, rent, or renovate—you may need to consider a partition action . Below, we outline how partition lawsuits work, the essential steps involved, and the legal protections California law provides to co-owners. By the end of this article, you’ll have a clearer view of how to navigate this potentially complex process.

What Is a Partition Action?

A partition action is a legal process that allows co-owners (cotenants) of a property to divide or sell it when they cannot agree on its use or management. These disputes commonly arise in situations where parents pass real estate to multiple children, or where business partners co-own an investment property. Under California Code of Civil Procedure (CCP) § 872.010 et seq. , any co-owner has the right to file a partition lawsuit to end joint ownership.

Two Main Approaches to Partition

Partition in Kind
The property is physically divided into separate parcels, and each co-owner receives a distinct portion.
Partition by Sale
The entire property is sold, and net proceeds are distributed among co-owners based on their ownership percentages (minus offsets for expenses like taxes or repairs).

Key Steps in a California Partition Lawsuit

Filing the Complaint
One co-owner (the plaintiff) initiates the process by filing a partition complaint in the Superior Court. The complaint identifies the property, the parties involved, and whether partition in kind or by sale is preferred.
Serving Legal Notice
All co-owners (the defendants) must be served with a summons and complaint. This gives them a chance to respond or contest the proposed partition, ownership shares, or any expenses that need to be accounted for.
Determining Ownership Interests
The court examines each co-owner’s stake in the property, including any mortgages, liens, or financial contributions. This step ensures fair allocation of subdivided parcels or sale proceeds.
Referee Appointment
A neutral referee (also called a partition commissioner) may be appointed to conduct appraisals, suggest the fair market value, and recommend how to split or sell the property.
Partition in Kind vs. Partition by Sale

Partition in Kind: If it’s both equitable and feasible to divide the real estate physically, the court may follow the referee’s recommendations and allocate distinct parcels.
Partition by Sale: If splitting the property reduces its value or is not practical, the court orders a sale. Net proceeds are then distributed based on each co-owner’s percentage share.

Final Judgment
After considering any reports or objections, the court issues a final judgment. If a sale is ordered, the property is sold, and proceeds are divided accordingly.

The Partition of Real Property Act in California

California’s Partition of Real Property Act (Code Civ. Proc., § 874.311, subd. (c) provides detailed guidelines especially relevant in inherited or family-owned real estate scenarios.

When Does This Act Apply?

Under Code of Civil Procedure § 874.311(b) & (c) , two conditions must be met:

The property is “held in tenancy in common [and] there is no agreement in a record binding all the cotenants which governs the partition of the property.”
The partition case was filed on or after January 1, 2023 .

When these conditions apply, the court is required to:

Determine the fair market value of the property (often via a court-ordered appraisal) before deciding whether partition is warranted (Code Civ. Proc., § 874.316).
Notify all parties of this appraised value.
Offer co-owners opposed to a sale the option to buy out those wishing to sell (Code Civ. Proc., § 874.317).
Proceed with either partition in kind or partition by sale only if no buyout is completed (Code Civ. Proc., § 874.318).

Because the law uses the term “shall,” these steps are mandatory , aiming to protect co-owners from an unjust forced sale.

Common Challenges in Partition Lawsuits

Ownership Disputes
Co-owners may disagree on their percentage of ownership if one feels they’ve contributed more financially or through labor (e.g., property improvements).
Liens & Encumbrances
Mortgages, tax liens, or judgments complicate how sale proceeds are allocated. Creditors and lienholders often need formal notice.
Accounting & Reimbursements
Co-owners can claim reimbursement for out-of-pocket expenses like property taxes or maintenance. Without clear records, resolving these claims can be time-consuming.
Emotional Ties
When family members or close friends are involved, disagreements can intensify, making cooperative solutions more difficult. The emotional weight can prolong litigation.

Practical Tips for Navigating a Partition Action

Gather Documentation Early
Collect deeds, tax records, and any written agreements or correspondence among co-owners. Comprehensive documentation streamlines the legal process and clarifies each party’s contributions.
Obtain Legal Counsel
Consulting a California real estate attorney who specializes in partition actions is crucial. They’ll help you interpret the relevant statutes, file the necessary paperwork, and advocate for your interests.
Consider Mediation or Settlement
Negotiating outside of court—perhaps via mediation—can save significant time and money, especially in emotionally charged family disputes. Agreeing on property valuation or repair costs may reduce litigation.
Leverage the Buyout Option
If the Partition of Real Property Act applies, co-owners can potentially buy out those who wish to sell. This often prevents a forced sale and helps preserve the property for those who value it most.
Maintain Clear Communication
Keeping lines of communication open among co-owners can lessen misunderstandings. Even if negotiations fail, mutual respect can foster a faster resolution.

Final Thoughts

Partition actions are a powerful legal tool for resolving property co-ownership conflicts, but they can be complex and emotionally charged , especially when family or longtime friends share ownership. By understanding the step-by-step process outlined in California law —including the requirements of the Partition of Real Property Act and mandatory fair market valuation—you’ll be better prepared to protect your rights and interests.

Real Estate Litigation Consultations for Californians

At McLellan Law Group, LLP , our team is dedicated to helping California residents navigate the complexities of real estate litigation , including partition actions . If you’re facing a lawsuit or need guidance on how to safeguard your interests in co-owned property, we can provide tailored advice to protect your assets. Request a free consultation today to discuss your situation, explore your legal options, and develop a strategy that aligns with your goals.

Understanding Arbitration: When It’s Required, How It Works, and the Pros and Cons

Wed, 19 Mar 2025 15:16:39 GMT

Understanding Arbitration: When It’s Required, How It Works, and the Pros and Cons

Claire Melehani & Steven McLellan

Arbitration is an alternative dispute resolution method that can help parties resolve conflicts without going through the traditional court process. In many industries—from employment to consumer transactions— arbitration clauses are increasingly common, often included in contracts or agreements. Below is a closer look at what arbitration entails, when it’s required, and the advantages and drawbacks to consider before deciding whether arbitration is the right path for you or your organization.

What Is Arbitration?

Arbitration is a process where two or more parties submit their dispute to a neutral third party, known as an arbitrator . Unlike mediation, the arbitrator makes a binding decision—similar to a judge’s ruling—after reviewing the evidence and hearing arguments. Arbitration often aims to be faster, more flexible, and less formal than a court trial.

Key Features of Arbitration

Neutral Arbitrator: The arbitrator is typically selected by mutual agreement of the parties or through an arbitration service provider.
Limited Discovery: Compared to civil litigation, discovery (the exchange of evidence) is often more streamlined.
Confidentiality: Arbitration proceedings are generally private and not part of the public record.
Binding Decision: Most arbitration decisions (awards) are binding on the parties, with limited grounds for appeal.

When Is Arbitration Required?

Contractual Arbitration Clauses

Many contracts include mandatory arbitration clauses requiring parties to resolve future disputes via arbitration rather than litigation. These clauses can appear in employment agreements, consumer contracts (such as credit card terms), and various business agreements.

Motions to Compel Arbitration

Advantages of Arbitration

Speed and Efficiency
Arbitration often moves more quickly than the standard court process, which can be bogged down by crowded dockets. In many cases, reduced procedural requirements also shorten the overall timeline for resolution.
Privacy
Proceedings are generally confidential, making arbitration an appealing choice for those who wish to keep sensitive information out of the public record. This is especially beneficial for business disputes involving trade secrets or confidential data.
Flexibility
Parties can typically choose an arbitrator with specialized expertise suited to the nature of their dispute. Scheduling is also more accommodating, allowing for hearings at convenient times and locations rather than being bound to a court’s calendar.
Potential Cost Savings
Although arbitrators charge fees, the streamlined discovery process and shortened timeline can, in many cases, make arbitration less expensive than protracted litigation.

Drawbacks of Arbitration

Limited Right of Appeal
Because arbitration decisions are binding, there are few avenues for appeal. If you believe the arbitrator’s interpretation of the law is flawed, you may have difficulty overturning the award.
Arbitration Costs
While arbitration can be more cost-effective overall, the arbitrator’s fees and administrative costs can add up. These expenses may be particularly burdensome if the dispute is complex or the hearings are extensive.
Perception of Bias
Concerns sometimes arise when the same arbitrator or arbitration firm is used repeatedly by large corporations. Critics suggest that these repeat players may have an advantage, although reputable arbitration providers strive to maintain impartiality.
Reduced Discovery
Arbitration’s limited discovery can be a double-edged sword. It can reduce costs and speed up the process, but it may also prevent one party from fully uncovering evidence they need, particularly when the other party has more documentation.

How to Decide If Arbitration Is Right for You

Review the Agreement: Carefully read any arbitration clause in your contract to understand the scope of disputes covered and the extent of any waivers you might be making (e.g., class-action rights).
Assess Costs vs. Benefits: Compare potential arbitration fees and potential time savings with the costs and extended timeline of litigation.
Evaluate Your Need for Discovery: If your case hinges on extensive evidence, arbitration’s limited scope may put you at a disadvantage.
Seek Legal Advice: Consult an attorney experienced in arbitration to determine if you should file or oppose a motion to compel arbitration, based on your situation.

McLellan Law Group, LLP: Your Partner in Arbitration

At McLellan Law Group, LLP , we understand the intricacies of arbitration and the importance of determining whether it’s the right approach for your legal issue. Our team can help you:

Evaluate the strengths and weaknesses of your case before entering arbitration.
Draft or review contractual arbitration clauses to minimize future disputes.
Represent you effectively in arbitration proceedings.
File or oppose motions to compel arbitration if litigation has already commenced.

If you’re in California and need guidance on arbitration—whether you’re deciding to compel it, resist it, or simply better understand your contract— request a free consultation today. Our experienced attorneys will clarify your legal options and craft a strategy designed to achieve the best outcome.

Final Thoughts

Arbitration can be an efficient, private, and sometimes cost-effective way to resolve disputes, but it’s not a one-size-fits-all solution. The limited avenues for appeal and the potential costs should be weighed against the speed and flexibility arbitration often provides. Whether you’re considering an arbitration clause in a contract or facing a motion to compel arbitration, it’s critical to understand both the pros and cons . If you’re unsure which path to take, consult a legal professional for personalized guidance and to help you make an informed decision.

California’s New Discovery Rules: How Sections 2016.090 and 2023.050 Will Impact Your Case

Wed, 19 Mar 2025 15:00:03 GMT

California’s New Discovery Rules: How Sections 2016.090 and 2023.050 Will Impact Your Case

Claire Melehani & Steven McLellan

California’s recent amendments to Code of Civil Procedure sections 2016.090 and 2023.050 introduce significant changes to the discovery process, aiming to streamline litigation and reduce costs. These changes, which took effect on January 1, 2024, include the adoption of mandatory initial disclosures and stricter penalties for discovery misconduct.

At McLellan Law Group, LLP , we are dedicated to keeping you informed about developments that could affect your business or personal litigation strategy. Here’s what you need to know about the new rules and their implications.

Section 2016.090: Mandatory Initial Disclosures

One of the most notable changes is the introduction of mandatory initial disclosures, which apply to most civil actions filed on or after January 1, 2024. These disclosures are designed to increase transparency and reduce the need for extensive discovery by requiring parties to share key information early in the litigation process.

Note: This section is presently scheduled to sunset on January 1, 2027, where it will no longer be mandatory, but voluntary, for parties to engage in initial disclosures. However, it is likely that the Legislature will review extending the mandatory initial disclosures.

What Must Be Disclosed?

Supplemental Disclosures

Parties are permitted to update their initial disclosures as new information becomes available. Specifically:

Up to two supplemental demands may be made before the trial date is set.
One supplemental demand may be made after the trial date is set, with additional demands allowed by court order for good cause.

Exemptions
Initial disclosures are not required in:

Unlawful detainer cases.
Small claims matters.
Family or probate cases.
Cases granted trial preference under Section 36.
Cases involving self-represented parties.

This shift encourages early case assessment and can help reduce unnecessary delays caused by discovery disputes. These changes also bring California closer to federal discovery rules

Section 2023.050: Mandatory Sanctions for Discovery Misconduct

California has also strengthened enforcement mechanisms for discovery compliance under Section 2023.050. Courts are now required to impose $1,000 monetary sanctions—in addition to any other applicable penalties—when parties, attorneys, or individuals engage in specific bad-faith discovery practices. The mandatory sanctions apply to misconduct regarding requests for production of documents, either through first-party discovery or third-party subpoena.

When Are Sanctions Imposed?

Exceptions to Mandatory Sanctions

The court may excuse sanctions if:

The sanctioned party acted with substantial justification .
Imposing the sanction would be unjust under the circumstances.

Reporting Requirements for Attorneys

Attorneys sanctioned under this section may be required to report the sanction to the State Bar of California within 30 days, depending on the court’s discretion. This provision highlights the seriousness of discovery misconduct.

Rebuttable Presumption for Self-Represented Parties

Self-represented individuals are presumed to have acted in good faith unless proven otherwise by clear and convincing evidence . This presumption protects those without legal representation from automatic sanctions.

Key Takeaways for Civil Litigation

The changes to Sections 2016.090 and 2023.050 are designed to improve the efficiency and fairness of the discovery process. Key benefits include:

Increased Transparency : Mandatory initial disclosures help parties gain a clearer picture of the case early on.
Stronger Enforcement : Mandatory sanctions deter bad-faith discovery tactics, ensuring that parties comply with their obligations.
Reduced Costs : By minimizing discovery disputes and encouraging early resolution, these changes can help reduce litigation expenses.

However, the rules also introduce additional responsibilities. Parties must carefully document their compliance with disclosure and meet-and-confer requirements to avoid sanctions.

How McLellan Law Group, LLP Can Help

Discovery compliance is essential to the success of any case. At McLellan Law Group, LLP, we help clients:

Prepare and verify initial disclosures to meet legal requirements.
Document communications to demonstrate good faith during the discovery process.
Avoid sanctions by staying compliant with updated discovery rules.

Whether you’re navigating litigation or arbitration, our team can help you manage discovery efficiently and protect your interests.

Conclusion

The amendments to California Code of Civil Procedure sections 2016.090 and 2023.050 reflect a significant shift toward greater transparency and accountability in the discovery process. By understanding these changes, parties can reduce the risks of sanctions and position their cases for success.

Litigation Consultations for Californians

At McLellan Law Group, LLP, our team is dedicated to helping California residents navigate the complexities litigation. If you’re facing a lawsuit or need guidance on potential trust litigation, our attorneys can provide customized advice to protect your interests. Request a free consultation today to discuss your situation and explore your options.

If you have questions about how these rules apply to your case, contact McLellan Law Group, LLP to schedule a consultation. Let us help you navigate California’s evolving legal landscape.

Stay informed by visiting our blog regularly and following McLellan Law Group, LLP on Instagram and LinkedIn.

California Discovery Rules FAQs

6 Questions to Ask Before Hiring an Appellate Attorney

Wed, 19 Mar 2025 14:31:16 GMT

6 Questions to Ask Before Hiring an Appellate Attorney

Claire Melehani

Choosing the right appellate attorney can be a daunting task, especially when the stakes are high. The outcome of your case may depend on your ability to find someone who not only understands the intricacies of appeals, but also aligns with your needs. In this article, we will guide you through essential questions that can help you make an informed decision when hiring an appellate lawyer.

1. What is Your Experience with Appeals?

2. What Is Your Case Strategy for My Situation?

Understanding the lawyer's strategy for your specific case is essential. An effective appellate lawyer should be able to articulate a clear and concise plan tailored to your situation. This strategy should take into account the unique aspects of your case, including any previous court rulings, the issues at stake, and the desired outcomes. A well-defined strategy indicates that the lawyer has a thorough grasp of your case and is ready to advocate for your interests.

In addition, consider asking how they intend to address potential challenges that may arise during the appellate process. An adept lawyer should anticipate issues before they become problematic and have contingency plans in place. It’s also helpful to discuss how they approached similar cases in the past, as this can showcase their problem-solving skills and resourcefulness. Ultimately, you want a lawyer who is proactive and adaptable to changing circumstances.

Furthermore, the lawyer’s ability to make you feel comfortable with their proposed strategy is crucial. You should understand the plan and feel confident in its viability. If they can effectively explain their strategic thought process to you, that can significantly bolster your trust in their capabilities.

3. How Do You Charge for Your Services?

4. What is the Likely Timeline for My Appeal?

Understanding the likely timeline for your appeal is crucial, as appeals can often be lengthy and complex. A skilled appellate attorney should be able to give you an estimated timeframe for each phase of the appeal. While no attorney can guarantee exact timing, they should be able to outline a general schedule based on their experience with similar cases and the particular court where your appeal will be heard. Knowing the timeline will help you set realistic expectations and prepare for each step in the process.

Ask them about the typical stages, from filing the notice of appeal to submitting briefs, oral arguments, and waiting for the court’s decision. Each of these steps can take varying amounts of time, depending on the specifics of your case and court backlog. Knowing these stages and how long they might take will help you plan and feel more in control as your appeal progresses. Additionally, if there are potential delays due to factors such as court schedules, procedural issues, or opposing counsel, a knowledgeable attorney can discuss the possible delays with you upfront.

5. Who Will Be Working on My Case, and What Will Their Roles Be?

It’s important to know who will handle different aspects of your case and what role each person will play. While some attorneys personally manage all parts of an appeal, others work with a team of legal professionals, including associates, paralegals, and administrative staff. Understanding who will be involved and how the workload will be distributed can give you a better idea of the attention your case will receive.

Ask if the lead attorney will be primarily responsible for writing briefs, conducting research, and presenting oral arguments, or if these tasks will be delegated. Knowing who is on your case team allows you to understand their respective strengths and qualifications. It’s also helpful to ask if the attorney has specific team members with particular experience in the type of appeal you’re pursuing, as this can add value to your representation. A clear view of each team member’s role will provide transparency and build confidence in your choice.

6. How Do You Communicate with Clients Throughout the Appeal Process?

Conclusion

Hiring the right appellate attorney is essential to navigating the complex and often high-stakes world of appeals. By carefully considering an attorney’s experience, case strategy, and fee structure, you can ensure that you are well-represented by a skilled professional who understands both the legal and personal stakes involved. Each of these factors—experience, strategy, and cost—contributes to the overall quality and effectiveness of representation you can expect. With thorough research and clear communication, you can make an informed choice that aligns with your needs and increases the likelihood of a favorable outcome in your appeal.

Appellate Representation for Californians

At McLellan Law Group, LLP, our team is dedicated to helping California residents navigate the complexities of appeals. If you need guidance on a pending or potential appeal, our experienced attorneys can provide tailored advice to protect your interests. Request a free consultation today to discuss your appeal.

Appeal FAQs

Received a Trust Notice in the Mail? Here’s What You Need to Know

Wed, 19 Mar 2025 13:38:04 GMT

Received a Trust Notice in the Mail? Here’s What You Need to Know

Steven McLellan & Claire Melehani

What to Do If You Receive a Trust Notice in California

If you’ve received a trust notice in the mail, you might be wondering what it means and if you need to take action. California law requires trustees to notify beneficiaries and other interested parties when a trust is being administered, changed, or when certain legal events occur.

Understanding what a trust notice is, why you received it, and what deadlines apply is essential to protecting your rights. Ignoring it could mean losing your ability to challenge the trust or claim assets that rightfully belong to you. In this guide, we’ll explain what a trust notice is, the deadlines to act under California law, and what you could lose if you don’t respond in time.

What Is a Trust Notice?

A trust notice is a legal document sent to beneficiaries and other interested parties when an important event occurs within a trust. Under California Probate Code § 16061.7 , this notice is required when a formerly revocable trust becomes irrevocable due to the settlor’s death.

Why You May Have Received a Trust Notice

You may receive a trust notice for several reasons:

The trust creator (settlor) has passed away – If the trust was revocable during the settlor’s lifetime, it often becomes irrevocable upon their death, triggering a notice requirement.
The trustee has changed – If a new trustee takes over managing the trust, all beneficiaries must be notified.
A power of appointment has been exercised or expired – If the settlor retained a special authority over trust assets (more on this below), a notice must be sent when this authority either takes effect or expires after the settlor’s death.
The trust is being administered or changed – If a trust undergoes a major event, such as a division, termination, or distribution of assets, beneficiaries must be informed.

What Is a Power of Appointment?

A power of appointment is a legal right that allows the trust creator (settlor) to decide who will receive certain assets in the trust and under what conditions . Think of it as a special control mechanism that gives the settlor the ability to change how assets are distributed even after the trust was created.

There are two key ways this power might affect a trust:

The power of appointment is exercised – This means the settlor used their authority to direct how certain assets should be distributed after their death. If this happens, beneficiaries must be notified.
The power of appointment lapses – If the settlor did not use this power before passing away, the assets will be distributed according to the default terms of the trust. Beneficiaries must be informed of this as well.

Why does this matter? If you’re a beneficiary, you need to know whether the settlor made last-minute changes affecting your inheritance or if the default trust terms will apply.

Your Rights After Receiving a Trust Notice

What Happens If You Ignore a Trust Notice?

What Should You Do Next?

If you’ve received a trust notice, take these steps immediately :

�� Step 1: Read the notice carefully and check the 120-day deadline .
�� Step 2: Consult a trust attorney to understand your rights and determine your next steps.

Trust Litigation Consultations for Californians

At McLellan Law Group, LLP, our team is dedicated to helping California residents navigate the complexities of trust litigation. If you’re facing a lawsuit or need guidance on potential trust litigation, our attorneys can provide customized advice to protect your interests. Request a free consultation today to discuss your situation and explore your options.

Final Thoughts

Receiving a trust notice can feel overwhelming, but it’s a critical step in ensuring your inheritance rights are protected. Whether you need help reviewing a trust, contesting its terms, or understanding your legal options , acting quickly and strategically is key.

If you have questions about your trust notice, reach out today to discuss your options and protect your future.

Understanding Your Rights Under the Older Workers Benefit Protection Act (OWBPA)

Thu, 30 Jan 2025 16:29:31 GMT

Understanding Your Rights Under the Older Workers Benefit Protection Act (OWBPA)

Claire Melehani

Navigating the complexities of employment laws can be challenging, especially for older workers who may feel uncertain about their rights. The Older Workers Benefit Protection Act (OWBPA) is a crucial piece of legislation aimed at safeguarding the rights of older employees. This blog will demystify the OWBPA, explaining its importance, key provisions, and what it means for you in the workplace.

What is the Older Workers Benefit Protection Act?

The OWBPA was enacted in 1990 as an amendment to the Age Discrimination in Employment Act (ADEA). Its primary goal is to protect older employees from age-based discrimination in the workplace and to ensure they receive full benefits regardless of their age.

This act arose in response to growing concerns about the treatment of older workers in a job market that increasingly favored younger employees. Employers were often unaware—or worse, dismissive—of the legal ramifications of their actions. The OWBPA seeks to rectify that by ensuring that all workers aged 40 and older are treated equitably.

The importance of the OWBPA cannot be overstated. In today’s world, where workforce demographics are rapidly changing, recognizing the contributions and rights of older workers is essential. This legislation serves as a powerful reminder that age should never be a barrier to employment opportunities, retention, or fair treatment. Every employee, regardless of their age, deserves to work in an environment that respects their rights.

Key Provisions of the OWBPA

The OWBPA contains several critical requirements designed to protect older workers—particularly when employers ask them to waive or release potential age-discrimination claims, such as in a severance agreement. Below are the most significant provisions:

Plain Language Requirement (29 U.S.C. § 626(f)(1)(A)) - The written agreement or waiver must be drafted in clear, understandable terms. Legal jargon should be minimized so employees can easily grasp what they are signing.

Mandatory Disclosures in Group Layoffs (29 U.S.C. § 626(f)(1)(H)) - If multiple employees are being laid off or offered severance packages, the employer must disclose the ages and job titles of both the individuals selected for layoff and those who are not. This transparency helps older workers see whether the layoff disproportionately affects them.

Adequate Time to Consider the Agreement (29 U.S.C. § 626(f)(1)(F)):

21-Day Review Period (Individual Layoff): If you’re the only individual being terminated or offered a severance agreement, you must be given at least 21 days to decide whether to sign.

45-Day Review Period (Group Layoff): If you’re part of a larger reduction in force, you must be afforded 45 days to review the agreement.

7-Day Revocation Period (29 U.S.C. § 626(f)(1)(G)) - Even after signing, you have 7 days to revoke your acceptance. During this window, you can change your mind without losing any severance benefits tied to the waiver.

Written Notice of Waivers - Employers must inform you of the specific rights and claims you’re giving up, including any potential claims for age discrimination. If the employer fails to communicate these details, the waiver may be invalid.

These provisions collectively ensure that older workers are not rushed into signing away their rights. Employers who fail to comply risk having their release or waiver deemed unenforceable , meaning you could still pursue age discrimination claims if you believe you were treated unfairly.

Who is Protected Under the OWBPA?

The OWBPA primarily protects workers aged 40 and older. This legal safeguard encompasses a broad range of workers, from those in entry-level positions to senior management. Understanding who qualifies for protection is paramount for older workers who might face termination or reorganization in their employment.

For many individuals, reaching the age of 40 can also coincide with significant career milestones. It’s important to recognize that this act is not just about preventing discrimination; it’s about promoting fairness and equity in the workplace. Older employees often bring invaluable experience and wisdom to their roles, and this protection acknowledges their contributions.

Additionally, the OWBPA ensures that employees who qualify under its provisions also have the right to challenge any decisions made on the basis of age. Whether it’s a layoff or job reassignment, older workers have the legal backing to question actions they believe are discriminatory.

Understanding Waivers of Rights

One of the significant aspects of the OWBPA is the provisions surrounding waivers. Employers often require older workers to sign waivers in exchange for severance packages, and this section will discuss under what circumstances these waivers may occur.

For a waiver to be considered valid, specific conditions must be met. Firstly, the employee must receive clear and understandable information about what they are waiving. If an employer fails to provide this, it could cast doubt on the validity of the waiver. It’s essential that older employees fully grasp what rights they might be relinquishing.

The OWBPA emphasizes that employees should not feel pressured to sign waivers immediately. The act provides a legal framework that gives workers the chance to reflect on their choices, ideally encouraging them to seek legal advice if they have concerns. This safeguard empowers older workers, ensuring they do not inadvertently waive their rights due to lack of information or understanding.

Common Questions About the OWBPA

1. Can my employer speed up the 21/45-day waiting period?
No. The waiting periods are federally mandated. Attempting to reduce those timeframes or pressuring you to sign sooner could make the waiver unenforceable.

2. Do I lose my severance package if I revoke the waiver within the 7-day period?
Typically, yes. Revoking your acceptance means you’re not agreeing to the terms that grant you severance pay in exchange for releasing claims. However, you preserve your legal right to bring an age-discrimination claim.

3. What documentation should I keep to support an OWBPA claim?
Maintain emails, meeting notes, memos, and any communications that reference your age or the employer’s potential biases. A well-documented paper trail can be pivotal if you need to file a claim.

How to Protect Your Rights Under the OWBPA

Understanding your rights is just the first step. Workers should also be proactive in protecting themselves under the OWBPA.

Stay Informed: Familiarize yourself with the OWBPA’s core provisions, such as the required disclosures and waiting periods. Knowledge is power—understanding your rights helps you make informed decisions.
Document Everything: Keep a detailed record of any discussions or emails relating to severance, layoffs, or reassignments. If you suspect age-based discrimination, document specific instances where age was referenced.

Consult an Employment Attorney: If you’re unsure about signing a waiver or suspect your employer is violating the OWBPA, seek legal advice . An experienced employment attorney can review your severance agreement, advise on negotiations, and help you understand your legal options.

Use the Mandatory Waiting Periods: Don’t let your employer pressure you into signing immediately. The law grants you a specific review period for a reason—use it to gather information, evaluate your options, and, if needed, obtain professional counsel.

Taking these steps ensures you’re informed and equipped to advocate for yourself effectively.

Empowering Older Workers

Understanding your rights under the OWBPA is crucial for ensuring fair treatment in the workplace. This law stands as a strong defense against age discrimination and provides older workers with the tools to make informed decisions—especially during layoffs, reorganizations, or when presented with severance agreements. If you ever feel your rights have been compromised, consult with an employment attorney . By being informed and proactive, you can protect both your career and your peace of mind.

Employment Law Consultations for Californians

At McLellan Law Group, LLP , we’re committed to protecting employees’ rights. If you’re negotiating a severance package or deciding whether to accept an offer versus pursuing a lawsuit, our experienced employment attorneys can provide tailored advice to safeguard your interests. Request a free consultation today to discuss your situation and explore your legal options. We’re here to guide you every step of the way.

5 Key Benefits of Severance Negotiations

Thu, 30 Jan 2025 16:19:32 GMT

5 Key Benefits of Severance Negotiations

Claire Melehani

Severance negotiations can feel daunting, but understanding their benefits can open up new opportunities for those navigating job transitions. In this blog, we’ll explore some of the key advantages of engaging in severance negotiations. Whether you're facing a layoff or leaving a job voluntarily, knowing what you can gain from these discussions can empower you to advocate for yourself effectively.

1. Financial Security During Transition

One of the most significant benefits of severance negotiations is the potential for financial support during your time of transition. Receiving a severance package can provide you with a buffer while you explore new job opportunities, ensuring you have the stability you need during this uncertain period.

Think of it this way: when you leave a job, there’s often a whirlwind of emotions and decisions. The last thing you want on your mind is how to pay the bills. A well-structured severance agreement can afford you the luxury of time. Instead of rushing into the next role simply to make ends meet, you can focus on finding a position that truly fits your skills and aspirations. Imagine the confidence you'll have knowing you have financial backing while you search for that perfect job!

Moreover, severance packages can sometimes include additional financial perks, such as bonuses or extended salary payments. This extra cushion can make a significant difference for you and your family, allowing you to navigate your transition with less pressure. In the end, severance isn’t just about money; it's about securing your future.

2. Continuing Healthcare Coverage

Health insurance is a major concern when leaving a job. Severance negotiations can often include continued healthcare coverage, allowing you to maintain your medical benefits for a specified period. This can be crucial, especially if you require ongoing treatments or prescriptions.

Consider the anxiety that comes with losing your healthcare coverage abruptly. The last thing you need during a career transition is added stress about medical bills or finding new insurance. By negotiating for extended healthcare benefits, you gain peace of mind knowing that you won’t have to sacrifice your health for financial instability. It allows you to focus on securing a new position without the looming pressure of a healthcare gap.

In some cases, employers may offer COBRA coverage, which extends your health insurance for a limited time. While this can be an excellent stopgap, it can also come with steep costs. Negotiating your severance package to include premium coverage options not only helps you save money but also encourages a smoother transition into a new role. Always ensure that your severance gets you the healthcare coverage you need to maintain your well-being.

3. Support for Job Placement Services

Many employers offer job placement services as part of severance negotiations. This additional support can connect you with resources and professionals who can assist with resume writing, interview preparation, and job search strategies, enhancing your chances of landing a new position quickly.

Think about the comfort of having an expert by your side during such an uncertain time. A reliable placement service can provide personalized guidance tailored to your specific career path, increasing your confidence during your job search. Imagine walking into an interview, fully prepared, and feeling confident—these services can help you get there.

Moreover, many of these services offer networking opportunities with other professionals in your industry. This could be a game-changer, especially if you are transitioning to a different field or looking to pivot your career. Severance negotiations can provide not just a financial lifeline, but a pathway to new opportunities and connections that you might not have explored otherwise.

4. Negotiating for an Honorable Departure

Engaging in severance negotiations can provide you the opportunity to leave your employer on good terms. By negotiating a respectful departure, you can maintain positive relationships and professional references that can benefit your career in the long run.

Taking the time to negotiate your severance showcases your professionalism and leaves a lasting impression. It creates an environment where both parties can part ways amicably, paving the way for future collaborations or references. You never know when you might cross paths with former colleagues again, and a respectful departure can lead to unexpected opportunities down the line.

Having a cordial relationship with your former employer can also provide peace of mind. Instead of leaving with festering resentment, you can move on with confidence, knowing that you've handled the situation well. Professionalism during negotiations is key, not just for your current situation but for your entire career trajectory.

5. Flexibility to Pursue New Opportunities

Finally, severance negotiations can grant you the freedom and financial peace of mind to explore new career opportunities that align with your goals and values. With the right severance package, you can take the time you need to find the position that’s truly right for you.

Rather than jumping into the first available job, severance can allow you to implement a strategic job search aligned with your personal and professional growth. This time can be invaluable—not just for finding a new role, but for engaging in self-reflection about what you truly want from your career. Maybe there’s a passion project you’ve always wanted to pursue, or perhaps you’re considering a completely different field. Severance can offer the space to explore those paths.

As you enter this new chapter, remember that you have the chance to redefine your career. The flexibility that comes with a well-negotiated severance package provides you the opportunity to explore chances that fit your life perfectly. No pressure, just potential—what could be more empowering?

Employment Law Consultations for Californians

At McLellan Law Group, LLP , we’re committed to protecting employees’ rights. If you’re negotiating a severance package or deciding whether to accept an offer versus pursuing a lawsuit, our experienced employment attorneys can provide tailored advice to safeguard your interests. Request a free consultation today to discuss your situation and explore your legal options. We’re here to guide you every step of the way.

What is Trust Litigation and Why Might it be Necessary?

Tue, 31 Dec 2024 03:15:00 GMT

What is Trust Litigation and Why Might it be Necessary?

Claire Melehani

Trust litigation can be a complex and challenging area of law, but understanding what it entails and why it may be necessary is crucial for individuals dealing with trust disputes. In this FAQ, we will explore various aspects of trust litigation, including common reasons why it arises and the processes involved.

Common Reasons for Trust Litigation

There are several common reasons why trust litigation may become necessary. One prevalent issue is the mismanagement of trust assets by the trustee. Beneficiaries may feel compelled to take legal action if a trustee fails to act prudently or makes poor investment decisions.

Another significant cause of trust litigation is disagreements among beneficiaries. Conflicts may occur over the interpretation of the trust document or the fairness of how assets are distributed, prompting the need for judicial intervention.

Allegations of breaches of fiduciary duties also often lead to trust litigation. Trustees are required to act in the best interest of the beneficiaries, and any deviation from this duty can result in serious legal consequences.

Moreover, disputes may stem from changes in the law or tax implications that impact the trust's administration differently than the settlor intended. In such cases, parties may seek legal guidance to ensure compliance or challenge the trustee's actions.

How to Initiate Trust Litigation

Initiating trust litigation generally begins with a thorough review of the trust document and related facts. Understanding the specific grounds for your concerns is key to determining if legal action is necessary and how to proceed.

Once you establish a reason for litigation, it is advisable to seek legal counsel who specializes in trust and estate law. An experienced attorney can provide insights into the complexities of your case and guide you through the legal process.

Filing a lawsuit often involves preparing legal documents and submitting them to the appropriate court. This includes outlining the basis for the claims and the requested relief. Good preparation is vital, as it will set the tone for how your case is viewed.

After filing the claim, the parties may engage in discovery, where both sides gather evidence to support their positions. This process can be time-consuming, but it is critical to building a strong case for either party.

Key Takeaways on Trust Litigation

In conclusion, trust litigation is an essential legal process that can help resolve disputes regarding managing and distributing trust assets. Whether due to mismanagement, breaches of fiduciary duty, or disagreements among beneficiaries, trust litigation provides a pathway to seek resolution and protection.

Trust Litigation Consultations for Californians

8 Reasons To Hire an Appellate Attorney

Mon, 16 Dec 2024 02:36:32 GMT

8 Reasons to Hire an Appellate Attorney

Steven McLellan

Navigating the legal system can be daunting, especially after a trial concludes. An appellate attorney focuses on reviewing trial decisions and procedures. Understanding when to seek an appellate attorney can make a significant difference in the outcome of your case. Below are eight compelling reasons that highlight the importance of hiring an appellate lawyer.

1. Understanding the Appeals Process

The appeals process is a critical aspect of the judicial system that allows parties to challenge the outcomes of their trials. It is important to grasp how this process unfolds, as it differs significantly from the initial trial proceedings. An appellate lawyer will explain the steps involved, including filing the notice of appeal, gathering the trial record, and submitting written briefs. Each of these steps must be executed meticulously to avoid pitfalls that could derail your case.

Moreover, the appellate court's function is not to retry the case; rather, it reviews the existing record to determine whether the earlier court made legal errors. Understanding this distinction is vital, as it sets the stage for why a skilled appellate lawyer is essential. They offer guidance on formulating legal arguments based on identified issues, emphasizing the importance of precise documentation and timing in the appeals process.

2. Identifying Legal Errors in the Original Trial

One of the paramount reasons to consult an appellate lawyer is their ability to identify potential legal errors that may have occurred during your original trial. These errors can range from misapplication of law to procedural mistakes that can unjustly affect the outcome of your case. Appellate lawyers meticulously analyze trial transcripts and evidence to pinpoint any errors that could form the basis for an appeal.

Their experience enables them to discern both obvious and subtle errors that a layperson might overlook. Legal errors don't always present themselves in flamboyant ways; they can be intricately woven into the fabric of the proceedings. An appellate lawyer can help articulate these errors clearly in legal documents, thus laying a solid foundation for a successful appeal.

3. Preparing a Strong Appellate Brief

A strong legal brief is the culmination of thorough research and compelling arguments, and it is vital for any appeal. It serves as your primary vehicle for communicating the legal basis of your claims to the appellate court. An appellate lawyer excels in crafting these briefs, including factual outlines and persuasive legal reasoning. The ability to compellingly present your case can make a substantial difference in how the judges perceive it.

Additionally, precise citation of case law and statutes helps substantiate your arguments, while poor preparation can jeopardize your chances of success. An appellate lawyer ensures that all arguments are backed by relevant precedent, so enlisting an appellate attorney, especially when navigating complex legal frameworks, is crucial.

5. Arguing Effectively Before an Appeals Court

When it comes to arguing in front of an appeals court, the stakes are high. This is where the skills of an appellate lawyer truly shine. Unlike trial law, where emotion and jury persuasion are pivotal, appellate advocacy relies on logical reasoning, clarity, and a profound understanding of legal principles. A seasoned appellate lawyer is adept at distilling complex legal arguments into concise, impactful presentations.

Moreover, they are trained to adapt their arguments in response to the judges' questions and concerns during oral arguments. This real-time adaptability is crucial, as the appellate judges often seek clarification or challenge your positions. An experienced appellate lawyer's ability to engage in these discussions with poise can significantly enhance your case's chances of success.

7. Handling the Emotional Toll of Losing a Case

Experiencing a loss in trial can take an emotional toll on litigants. The disappointment can be profound, leading to feelings of despair and frustration. An appellate lawyer not only focuses on the legal aspects but also acknowledges this emotional strain. They provide reassurance and a pathway forward, fostering hope that all is not lost.

Moreover, having someone by your side who understands the nuances of the appeals process can alleviate some of the emotional burden. Appellate lawyers are trained to handle both the mental and legal aspects of your case, providing a dual layer of support that is incredibly beneficial during such challenging times.

8. Maximizing Your Chances of a Favorable Outcome

Ultimately, employing an appellate attorney can dramatically enhance your chances for a favorable outcome on appeal. Their skills and profound knowledge of appellate law establish a framework for effective representation. They don’t just file documents; they tailor arguments designed to sway judges and cite legal precedents that resonate within the appellate court.

Furthermore, an appellate lawyer provides a fresh perspective on your situation, often identifying angles that may have been overlooked during the original trial. This fresh set of eyes is a tremendous asset, ensuring that every possible avenue for success is explored. In the nuanced world of appeals, hiring an appellate lawyer could be critical in rewriting your case's narrative.

Appellate Representation for Californians

Q&A: Reasons to Hire an Appellate Attorney

11 Common Real Estate Litigation Issues in Silicon Valley

Thu, 21 Nov 2024 15:08:05 GMT

11 Common Real Estate Litigation Issues in Silicon Valley

Steven McLellan

In Silicon Valley's competitive real estate landscape, high-net-worth individuals often face unique legal challenges. Understanding the common issues in these situations can prepare you for potential disputes and help protect your investments. Here are some of the most prevalent real estate litigation challenges faced by affluent individuals in this tech hub.

1. Fraud and Misrepresentation Claims

Fraud and misrepresentation claims can dramatically affect successful real estate transactions. In the high-stakes world of Silicon Valley real estate, where massive investments are at play, the risk of encountering deceptive practices can be heightened. Whether it's undisclosed defects in a property or misleading statements about property value, misrepresentations can lead to serious legal consequences. High-net-worth individuals must be vigilant in their due diligence to avoid falling victim to these practices.

In cases of suspected fraud, gathering evidence and acting promptly is vital. Legal recourse may be necessary if you find yourself in this unfortunate situation, which requires the expertise of seasoned real estate attorneys. They can guide you on how to build a compelling case and recover losses. While no one wishes to engage in litigation, being prepared to handle these situations can help protect your substantial investments and maintain the integrity of your property transactions.

2. Disputes Over Property Ownership

Property ownership disputes can lead to some of the most contentious real estate litigation scenarios. In Silicon Valley, where property is highly coveted, shareholders, heirs, and business partners may have differing claims over ownership. Such disputes often arise when multiple parties have invested in a property without a clear document outlining ownership percentages. This can quickly spiral into legal confrontations.

Navigating these disputes can be complex, particularly when emotions and financial stakes are high. Such cases often require thorough legal examination and negotiation. Engaging an attorney knowledgeable about estate law and real estate can help clarify ownership issues and negotiate settlements. In some scenarios, mediation might provide a path forward that allows both parties to walk away satisfied, reducing the time and cost associated with a court trial.

3. Tenant Disputes in Investment Properties

In Silicon Valley, where property investments are a significant part of wealth portfolios, tenant disputes are a common challenge for high-net-worth individuals renting properties from their portfolios. Tenant disputes can arise over a variety of issues, including lease violations, property maintenance concerns, and disagreements over security deposit returns. For landlords with high-value properties, tenant disputes can impact both the value and desirability of the property and lead to potential financial losses and legal complications.

Managing tenant disputes effectively often involves a proactive approach, including thorough tenant screenings, well-drafted lease agreements, and clear communication about property rules and expectations. When conflicts arise, landlords can benefit from seeking legal guidance to address the issues promptly and within the framework of California’s tenant laws. Whether it involves resolving lease violations, pursuing eviction actions, or handling deposit disputes, having a well-structured approach to tenant issues can help investors protect their real estate assets and maintain smooth tenant relations.

4. Neighbor Disputes and Easement Conflicts

Disputes with neighboring properties are common in densely populated and highly competitive real estate markets like Silicon Valley. These disputes can become particularly complex for wealthy property owners, especially when dealing with shared boundaries, access rights, or easements. An easement allows one property owner to use part of a neighbor's property for specific purposes, such as access to a driveway or pathway. These arrangements can become contentious if not carefully documented and agreed upon.

Privacy and exclusivity are often priorities for high-net-worth individuals, which can sometimes conflict with neighboring property rights. Disputes may arise if a neighbor uses or restricts an easement in a way that affects property value, access, or aesthetics. Resolving these conflicts can require careful negotiations, mediation, or, in some cases, full-scale litigation to establish each party's rights. Consulting a real estate attorney to draft or review easement agreements can help prevent disputes and protect property values.

5. Construction Defects and Contractor Disputes

Silicon Valley’s affluent property owners frequently invest in custom builds, luxury renovations, and other high-end construction projects. While these projects can enhance property value and personalize estates, they also carry the risk of construction defects or disputes with contractors. Construction defects can range from structural issues, such as foundation problems, to aesthetic issues, like poor-quality finishes, which can significantly affect a property’s value and livability.

Disputes may also arise with contractors over delays, cost overruns, or deviations from agreed-upon designs or specifications. These issues can result in significant financial losses and protracted legal battles for high-value properties. Property owners should thoroughly vet contractors and secure detailed contracts outlining every aspect of the project. Working with a real estate attorney can be key to seeking remediation, compensation, or other legal remedies when defects are found.

6. Zoning and Land Use Challenges

Another significant area of concern for affluent Silicon Valley property owners is zoning and land use regulations. These laws dictate how properties can be developed and used, and when they change, they can dramatically affect property values. For example, a sudden shift in zoning rules can prohibit certain previously viable developments, leading to potential disputes. High-net-worth individuals may find themselves at odds with local authorities as they seek to maximize the value of their investments.

Moreover, navigating zoning challenges requires an intricate understanding of local laws and procedures. High-net-worth investors must diligently research zoning classifications and potential changes. They should also be proactive about attending local council meetings or engaging with community planning groups to stay informed about upcoming developments in zoning policies. This approach better positions investors and helps mitigate possible legal disputes arising from misunderstood zoning requirements.

7. Issues with Homeowner Associations

Homeowner Association (HOA) disputes are also common in Silicon Valley. While these associations exist to maintain property values and community standards, their rules can sometimes be a source of contention. Some homeowners may disagree with the decisions made by the HOA regarding maintenance, alterations, or the imposition of fines, which can lead to legal action. Issues can range from landscaping regulations to noise complaints, and they can be incredibly frustrating for affluent individuals used to more autonomy over their properties.

Understanding HOA bylaws is essential for residents. Typically, these rules now cover various matters regarding property usage and homeowner responsibilities. High-net-worth individuals should read their association's documents carefully and seek legal advice when disputes arise. When conflicts turn litigious, the outcome can significantly affect property value and overall home enjoyment.

8. Title Issues

Title issues can surface unexpectedly and may create major headaches for property owners. A clear title is crucial in real estate transactions, but various factors, such as liens or historical claims, can cloud a title. High-net-worth individuals faced with title disputes must take these matters seriously. A cloud on title can jeopardize the current investment and future dealings involving the property, making it essential to address these problems head-on.

In Silicon Valley, where the real estate market can be incredibly fast-paced, catching title issues early is critical. This can mean ordering thorough title searches before closing on a property. If any discrepancies are found, they should be addressed immediately. Engaging a title company or real estate attorney can provide the necessary expertise in resolving any issues, ensuring that titles are clear, which will ultimately safeguard your investments.

9. Contract Disputes

Contract disputes are among the most common challenges high-net-worth individuals face in real estate litigation. A contract is essentially a promise made between two or more parties, and conflicts can arise when one party fails to comply with the terms. In Silicon Valley, where real estate transactions often involve significant sums, even the slightest miscommunication can escalate into a serious legal battle. Many buyers and sellers underestimate the importance of clarity and detail in contracts, leading to misunderstandings that may cause financial losses.

For instance, a homebuyer might assume certain fixtures are included in the sale, while the seller believes they are not. If this misunderstanding is not addressed before closing, it can lead to anxiety and legal disputes. To navigate these tricky waters, high-net-worth individuals must engage seasoned legal professionals who understand the nuances of real estate contracts. They can help ensure that all communication is documented, all terms are crystal clear, and provide negotiation strategies to minimize the potential for disputes.

10. Environmental Compliance and Liability Issues

In California, environmental compliance can be crucial for high-net-worth individuals, especially when dealing with older properties or expansive estates. Some properties may have a history of agricultural, industrial, or commercial use, leading to potential contamination issues involving soil, water, or air quality. Environmental regulations at state and federal levels often require detailed remediation efforts to bring properties up to code, particularly if hazardous substances are found.

Non-compliance with these regulations can lead to serious legal consequences, including fines, cleanup costs, and possible litigation from neighboring contaminated properties.

Furthermore, selling a property with undisclosed environmental issues could lead to fraud claims. For affluent property owners, working with environmental consultants and real estate attorneys familiar with environmental compliance can help ensure adherence to regulations, protect investments, and avoid costly disputes.

11. Tax Disputes and Assessment Challenges

With Silicon Valley's high property values come high property taxes, sometimes leading to disputes with local tax authorities. Wealthy property owners may find themselves challenging tax assessments they believe to be excessive or improperly calculated. Disputes can arise over various issues, such as the assessment method, inaccurate valuations, or changes to the property that weren’t adequately reflected in the assessment.

Excessive property taxes can add substantial financial burdens, especially for investment properties or luxury estates. Challenging a tax assessment typically involves gathering supporting documentation, obtaining accurate valuations, and possibly pursuing legal action to achieve a fair valuation. Working with real estate attorneys or property tax consultants can be an effective strategy in helping property owners achieve assessments that more accurately reflect the true value of their property.

Real Estate Litigation Consultations for Californians

At McLellan Law Group, LLP, our team is dedicated to helping California residents navigate the complexities of real estate litigation. If you’re facing a lawsuit or need guidance on potential real estate litigation, our attorneys can provide customized advice to protect your interests and assets. Request a free consultation today to discuss your situation and explore your options.

California No-Contest Clauses: What They Mean for Wills and Trusts

Mon, 11 Nov 2024 17:46:33 GMT

California No-Contest Clauses: What They Mean for Wills and Trusts

Steven McLellan | Elizabeth Handtke

No-contest clauses, also known as "in terrorem" clauses, are legal tools in estate planning that disinherit beneficiaries who contest the terms of a will or trust. These clauses can be critical in California estate planning, where family dynamics and high-value assets can lead to disputes. This article explores how California’s no-contest clauses function, recent changes in their enforcement, and factors to consider if you're thinking about incorporating one into your estate plan.

Changes in the Enforcement of No-Contest Clauses in California

In California, no-contest clauses are governed by Probate Code Section 21311. While these clauses used to be widely enforceable, recent changes have significantly narrowed their scope. No-contest clauses can only be enforced under specific conditions:

Direct contests without probable cause – Challenges based on fraud, undue influence, or lack of capacity.
Property ownership disputes – If a contest questions whether the trustor actually owned the property at the time it was transferred into the trust, the no-contest clause may apply if it explicitly addresses this type of challenge.
Creditor claims – The filing of creditor claims or related actions against the trust can activate a no-contest clause, but again, only if the clause specifies such cases.

Each scenario emphasizes the importance of probable cause, as the courts will not enforce a no-contest clause unless a contest lacks a reasonable basis.

Purpose and Effect of a No-Contest Clause in Estate Planning

No-contest clauses are designed to keep estate planning clear, deter litigation, and prevent unnecessary disputes. For beneficiaries, these clauses serve as a warning: if they contest the will or trust and lose, they risk losing their inheritance. This deterrent effect often preserves family harmony and respects the trustor's wishes.

Factors to Consider

Adding a no-contest clause involves weighing potential risks and benefits. Here are some factors to think about:

Likelihood of Dispute: If you anticipate a specific heir challenging your estate plan, a no-contest clause might discourage litigation.
Gift Amounts: For a no-contest clause to work as intended, leaving a meaningful inheritance can create a strong disincentive. If an heir stands to lose a significant gift, they may be less inclined to contest.
Probable Cause Standard: Courts apply a probable cause test, meaning a contestant must lack reasonable grounds for their claim. This standard ensures that valid challenges with reasonable evidence won’t trigger disinheritance, allowing beneficiaries to address genuine grievances without risking their inheritance.

Late Trust Contests May Trigger No-Contest Clauses

Timing is crucial in no-contest clauses. According to the California case Meiri v. Shamtoubi (2022), late trust contests may result in enforcement if they lack probable cause due to their timeliness. Beneficiaries who receive a notice of trust administration under Probate Code §16061.7 have 120 days to file a contest. Missing this window could lead to a forfeiture of inheritance.

Planning Strategy for No-Contest Clauses

Drafting a no-contest clause requires attention to detail and should be tailored to the specific family dynamics and assets involved. Here are some steps to take:

Be Specific: Define what types of challenges will activate the clause. Explicitly include property disputes, creditor claims, or specific legal challenges if these are concerns.
Include Meaningful Bequests: Rather than disinheriting an heir entirely, consider leaving a bequest substantial enough to discourage litigation. Beneficiaries are less likely to contest if they have something to lose.
Set the Scope Carefully: Broadly worded clauses may lead to unforeseen consequences. Tailoring the language helps prevent unintended challenges and ensures the clause holds up in court.

Types of Contests Enforceable by a No-Contest Clause

Direct Contests Without Probable Cause

Direct contests involve legal claims that question the validity of the trust, such as undue influence, fraud, or lack of capacity. To enforce a no-contest clause against a direct contest, the court must find that the challenger lacked probable cause to initiate the action.

Property Ownership Disputes

If a beneficiary contests a trust by claiming the trustor didn’t legally own certain assets, they may trigger a no-contest clause—if the clause specifically bars such challenges. Explicit language on property ownership disputes can help the clause stand in court.

Creditor Claims

In cases where beneficiaries initiate creditor claims against the estate, a no-contest clause can be enforced if the clause specifically addresses these actions. This provides another layer of protection for the estate from potential challenges.

Case Examples of No-Contest Clauses in California

Real-life cases illustrate how California courts enforce no-contest clauses:

Key v. Tyler (2019) 34 Cal.App.5th 234
In this case, a beneficiary contested the trustor’s mental capacity, arguing that they were not competent to execute the trust. The court found the challenge lacked probable cause and enforced the no-contest clause, leading the beneficiary to forfeit her share of the trust. This case underscores how courts examine probable cause and the risks beneficiaries take in filing unsubstantiated claims.
Donkin v. Donkin (2013) 58 Cal.4th 412
Here, beneficiaries argued undue influence was at play in the trust's formation. Although they contended the claim was legitimate, the court found it lacked sufficient evidence to meet the probable cause standard, enforcing the no-contest clause and disinheriting them. This case highlights how courts require clear, credible evidence for challenges, protecting trustors’ intentions from unsupported claims.
Tunstall v. Wells (2015) 239 Cal.App.4th 1014
In Tunstall, a beneficiary claimed that certain trust property was not legally owned by the trustor at the time of transfer. Since the trust’s no-contest clause addressed property ownership challenges, the court upheld the clause, resulting in disinheritance. This outcome shows the importance of precise drafting and setting the right scope for no-contest clauses.

Are No-Contest Clauses Right for Your Estate Plan?

Incorporating a no-contest clause into your estate plan is a powerful decision that can prevent potential conflicts among heirs. However, it’s not always the right choice for every family. No-contest clauses are particularly effective if:

You anticipate specific beneficiaries may feel entitled to more than they’re allocated.
You want to limit litigation and preserve family harmony.
Your estate plan could be susceptible to legal challenges based on undue influence or mental capacity.

Consulting an experienced estate attorney can help determine if a no-contest clause aligns with your estate planning goals and family dynamics.

No-Contest Clause Assistance for Californians

At McLellan Law Group, LLP, our team is dedicated to helping California residents navigate the complexities of probate litigation and no-contest clauses. If you need guidance on contesting a trust with an existing no-contest clause, our experienced attorneys can provide tailored advice to protect your interests and preserve your legacy.

Understanding the Four Elements of Undue Influence in California Trust Disputes

Fri, 18 Oct 2024 00:12:09 GMT

Understanding the Four Elements of Undue Influence in California Trust Disputes

Claire Melehani & Elizabeth Handtke

When it comes to trust disputes involving financial elder abuse, one of the most common legal claims is that of “undue influence.” Undue influence is “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” (Cal. Prob. Code, § 86; Cal. Welf. & Inst. Code § 15610.70.)

Proving undue influence in California involves demonstrating that the influence exerted on the person who created the trust was such that it overpowered their free will and resulted in a trust document that does not reflect their true intentions. Although undue influence does not need to have been the sole cause of what caused the person to create the trust document, it must have been of such nature, weight, and force that the trust document would not have been created without it.

Courts consider a number of factors when determining whether undue influence was exerted on a person creating a trust.

Elements of Undue Influence

There are generally four elements that courts will use to evaluate whether undue influence was used. (See Keading v. Keading, 60 Cal. App. 5th 1115, 1125, 275 Cal. Rptr. 3d 338 (2021), reh'g denied (Mar. 9, 2021), review denied (June 9, 2021).)

1. Vulnerability of the Victim

The first element is the vulnerability of the victim. “Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim's vulnerability.” (Cal. Welf. & Inst. Code § 15610.70, subd. (a)(1).)

2. Apparent Authority of the Influencer

The second element is the apparent authority of the influencer, or in other words, their disposition to exert influence over the trustor. “Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.” (Cal. Welf. & Inst. Code § 15610.70, subd. (a)(2).) A person with apparent authority would most commonly be someone with power or trust with the trustor, such as a caregiver, close relative, or financial advisor.

3. Actions or Tactics Used by the Influencer

The third element is the actions or tactics used by the influencer to gain control over the trustor’s decisions and the opportunities that the influencer had to exert undue influence. (Cal. Welf. & Inst. Code § 15610.70, subd. (a)(3).) Examples of this would be the influencer controlling the trustor’s medications, interactions with others, access to information, or sleep. (Cal. Welf. & Inst. Code § 15610.70, subd. (a)(3)(A).) The influencer may also use affection, intimidation, or coercion as a means of control. (Cal. Welf. & Inst. Code § 15610.70, subd. (a)(3)(B).) Other evidence can include the “initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.” (Cal. Welf. & Inst. Code § 15610.70, subd. (a)(3)(C).)

4. Equity of the Result

Lastly, the result of the trust document is examined to determine whether there is an indication of undue influence. Typically, when the outcome of the trust document is inequitable or unjust, or the influencer receives a disproportionately large benefit, this may indicate undue influence. “Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim's prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.” (Cal. Welf. & Inst. Code § 15610.70, subd. (a)(4).)

It is important to present cumulative evidence of all these elements, since one element taken alone will likely not be enough to support a finding of undue influence. Most importantly, “[e]vidence of an inequitable result, without more, is not sufficient to prove undue influence.” (Cal. Welf. & Inst. Code § 15610.70, subd. (b).)

Proving Undue Influence

Undue influence can be difficult to prove, but circumstantial evidence may be used to show it.

Documentary evidence is also critical to proving undue influence. This would include medical records to show the trustor’s mental and physical condition; statements from friends, family, and professionals who interacted with the trustor; financial records that could indicate control by the influencer or financial dependence; and any communications that depict the nature of the relationship between the trustor and the influencer and any undue pressure.

Steps in the Legal Process

The first step in proving undue influence is to challenge the trust by filing a petition in probate court. Next, during the discovery phase, both sides gather and exchange evidence supporting their claims. Before the possibility of a trial, both parties will often attempt to resolve the dispute through mediation or settlement, but if no settlement is reached, the case will proceed to trial.

Proving undue influence is complex and requires a detailed examination of the circumstances surrounding the trust creation. Ensuring thorough preparation and gathering substantial evidence are critical to building a strong case.

It is important to act promptly, as the statute of limitations for contesting a trust begins to run quickly. If you suspect undue influence in a trust, contact a lawyer experienced in probate to help you navigate these complexities.

What is Mediation and Why You Should Care: Pros and Cons

Mon, 10 Jun 2024 20:25:22 GMT

What is Mediation and Why You Should Care: Pros and Cons

Claire Melehani

What Mediation? What Could Happen If You Mediate?

Mediation is a private, confidential process where a neutral third person (a “mediator”) helps the parties try to resolve the dispute. The neutrals are retired judges, so they are familiar with the law and likely outcome should the case proceed. The parties have the opportunity to describe the issues, discuss their interests, provide each other with information, and explore ideas for the resolution of the dispute. Reaching a resolution in mediation is “voluntary” in that the parties are not required to come to an agreement.

The mediator does not have the power to make a decision for the parties, but she/he can help the parties find a resolution that is mutually acceptable.

There are a number of different ways that mediation can proceed. Now, due to COVID-19, most mediations in California are conducted over Zoom. Most mediations start with the parties and their attorneys together in a short joint Zoom session. The mediator will describe how the process works, explain the mediator’s role, and help establish ground rules and an agenda for the session. Then, most mediators will move to separate sessions, shuttling back and forth between the parties in different Zoom breakout rooms.

If the parties reach an agreement, the mediator and attorneys write the agreement into a written contract that would be enforceable in court.

Potential Benefits of Mediation

Having a mediator can be good, even if it doesn’t get the case settled immediately. Even if the mediation doesn’t result in a same-day settlement, it often sets the stage for settlement down the road.

Mediators also often provide an honest assessment of how they think the case will shake out in court, pointing out both sides’ risks to encourage settlement.

Another benefit is that mediation is less stressful than trial. It’s shorter, the parties don’t have to see each other face-to-face, etc.

Similarly, mediation is less expensive than a trial, so you could save yourself a lot of money (not including potential settlement costs).

If you can reach a settlement, it could resolve the entire case more quickly than if you wait for trial. This is especially true now that California courts are seeing extreme delays due to COVID-19 closures that hit the “pause” button on most court proceedings, creating backlogs.

Even if you don’t settle on the mediation date, you may nonetheless make progress to be built upon in a subsequent negotiations. Alternatively, you may learn something important about the case which will guide you in determining whether or not to proceed if you’re the plaintiff.

Potential Downsides of Mediation

The main downside is the cost. To attend mediation, the parties usually have to pay a deposit with the mediator, split the mediator’s hourly fee, pay their attorneys to write their mediation briefs, and pay their attorneys to attend.

Depending on the jurisdiction, the mediator’s fee, and the attorney’s hourly rates, mediation costs at least a few thousand dollars.

Conclusion

While the pros of mediation usually outweigh the cons, the determination can vary based on the parties’ personalities and willingness to negotiate. Still, since mediation is strongly encouraged by the courts, parties should consider it as well.

If you want more information about how I can help you through the mediation process, feel free to message me through our website to set up a free consultation .

Disclaimer. This is not legal advice. I am “a lawyer” not “your lawyer.”

The Great Divide: California Appellate Courts Split Over Trust Modification Methods

Mon, 10 Jun 2024 20:22:32 GMT

The Great Divide: California Appellate Courts Split Over Trust Modification Methods

Claire Melehani

The First District Court of Appeal recently joined the fray amongst California appellate courts over trust modification procedures. The question causing the split: What is the procedure for modification of a revocable trust under Probate Code section 15402?

Probate Code section 15402 is one seemingly simple sentence: “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.”

But what is “the procedure for revocation?” Those four words created a divide in appellate authority over this question: Can a person modify their revocable trust by the statutory revocation procedure if the trust document sets forth a different means of modification that is not explicitly exclusive?[1]

Our appellate courts adopted both restrictive and permissive approaches.

The Permissive Approach

Last year, in Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, the Fourth District Court of Appeal diverged from its counterparts and instead adopted a “permissive” approach. The permissive approach allows amendment by the statutory method of section 15401(a)(2) unless the amendment procedure is explicitly exclusive.

The Restrictive Approach

Until recently, only the Third and Fifth District Courts of Appeal were on the other side of the issue. The Third District Court of Appeal, in Pena v. Dey (2019) 39 Cal.App.5th 546, and the Fifth District Court of Appeal, in King v. Lynch (2012) 139 Cal.App.4th 1186, adopted a “restrictive” approach to trust modification.

The restrictive approach limits a person’s ability to modify their trust to the method set forth in the trust document, regardless of whether the trust’s language explicitly states that method is the exclusive means of modification. In other words, the restrictive approach precludes the statutory trust modification method if the trust provides an alternative means of modification.

The First District Court of Appeal Takes Sides

This year, the First District Court of Appeal joined the debate in Balistreri v. Balistreri (2022) 75 Cal.App.5th 511.

In 2017, Mr. and Mrs. Balisteri created a trust that specified a method of modification:

“Any amendment, revocation, or termination . . . shall be made by written instrument signed, with signature acknowledged by a notary public, by the trustor(s) making the revocation, amendment, or termination, and delivered to the trustee.”

(Id. at p. 514.) The Balisteris signed an amendment the day before Mr. Balisteri died, but the amendment was not notarized. (Ibid.) Mrs. Balisteri filed a petition to confirm the validity of the amendment, since the amendment complied with the requirements of 15401(a)(2). (Id. at p. 516.) Her stepson opposed the petition. (Id. at p. 515.)

The First District Court of Appeal held that the amendment was invalid. (Id. at p. 522.) The First District reasoned that when a trust instrument specifies a means of modification, that method must be used. (Ibid.) Any specified procedure is mandatory, regardless of (1) whether the method of amendment is exclusive and (2) whether the trust specifies different means of amendment and revocation.

In adopting this restrictive approach, the First District Court of Appeal joined the Third and Fifth District Courts of Appeal.

Trust Modifiers Beware

While the Fourth District Court of Appeal seemingly stands alone in Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, the California Supreme Court granted review in December 2021. The High Court is thus poised to resolve the rift.

It is unclear how quickly the Supreme Court will decide Haggerty and provide a decisive interpretation of section 15402. For now, anyone modifying a California trust should consult a lawyer and proceed with caution.

Prevailing Party Attorneys’ Fees Through Indemnity Provisions

Mon, 10 Jun 2024 20:05:15 GMT

Prevailing Party Attorneys’ Fees Through Indemnity Provisions

Steven McLellan

Usually, before filing a lawsuit in a business dispute, a client wants to know whether she can receive her attorneys’ fees as a prevailing party in litigation. For the most part, it is an easy question–check the contract for a prevailing party attorney fee provision. However, sometimes contracts lack such provisions, but that does not mean the client is out of luck. Indemnity provisions may allow the client to recover prevailing party attorneys’ fees.

I. What is indemnification?

Generally, indemnification requires Party 1 to pay Party 2 for any obligation Party 2 paid because of Party 1’s conduct. For example, Party 1 does an act against Party 3, where Party 3 then sues Party 2. Party 2 may have a claim against Party 1 for indemnification. Such a situation may occur when an independent contractor harms a customer, and the customer sues the company. Indemnification may arise from contract, or other equitable means.

As this example shows, indemnification may arise when a third-party is involved. But, what about claims between Party 1 and Party 2? Indemnification is not limited to only third-party claims, depending on the indemnity provision’s scope. And that scope determines whether your client may obtain prevailing party attorneys’ fees.

II. Obtaining prevailing party attorneys’ fees through indemnification provision

Generally, an indemnification provision allows one party to recover costs incurred defending actions by third parties, not attorney fees incurred in an action between the parties to the contract. For example, let’s say an indemnification provision states “Seller … agrees to indemnify and save [b]uyer … harmless from any and all losses … including … reasonable attorney’s fees … arising from any cause or for any reason whatsoever.” Courts hold that such language does not permit parties to the contract to recover prevailing party attorneys’ fees. However, other language may exist that would show prevailing party attorneys’ fees are recoverable from an indemnity provision between parties to the contract:

Where one party agreed to indemnify the other for losses “ ‘whether or not they have arisen from or were incurred in or as a result of any demand, claim, action, suit, assessment or other proceeding or any settlement or judgment….’ ”

Where the contract provided indemnity against all losses “ ‘whether or not arising out of third party Claims.’ ”

The indemnity provision specifically applied to an “ ‘action or suit by or in the right of the corporation to procure a judgment in its favor.’ ”

There is no one set method for obtaining prevailing party attorneys’ fees through indemnification provisions. But, knowing that indemnification provisions may also provide for prevailing party attorneys’ fees can assist in your decision making in whether or not to file a lawsuit.

Waiving Or Losing A Fraud Claim

Mon, 10 Jun 2024 20:00:14 GMT

Waiving Or Losing A Fraud Claim

Steven McLellan

Typically, a fraud claim is easy to understand. One partner lied, and the other relied on the lie to her detriment. Yet, sometimes, the parties still have a business relationship after learning of the fraud. Losing or waiving your fraud claim can occur without your realizing it. For example, signing an amendment to the contract granting new benefits may constitute a waiver.

First Hypothetical: Requesting More Time To Act

Imagine you purchased interests through an installments in a limited liability company based upon certain financials shown to you by the managing member. You will receive regular distributions and bonus distributions based on the company’s sales. However, you now discovered that those financials were artificially increased to justify a higher purchase price. You still have a few more installments to pay. Further, while deciding what to do, you received the regular distributions. Does asking for more time to consider paying the other installments, or does the receipt of the distributions, constitute waiving or losing your fraud claim?

The Bagdasarian Case

The California Supreme Court analyzed this subject in Bagdasarian v. Gragnon (1948) 31 Cal.2d 744. The case arose from a sale of a farm. The sellers falsely represented the farm’s sales in the prior year. The purchasers acquired a note to pay for the farm, yet defaulted. The purchasers sued for fraud. The sellers argued that the purchasers lost the fraud claim because the purchasers “made payments on the notes, sought and received [the seller’s] advice and assistance in the operation of the farm, [and] requested an extension of time for payment on the notes.”

The Supreme Court rejected the argument. The court explained that “[w]hen a party learns that he has been defrauded, he may, instead of rescinding, elect to stand on the contract and sue for damages, and in such case his continued performance of the agreement does not constitute a waiver of his action for damages.” If a party learned of fraud and decided to continue with the contract, the party “must not make any new agreement or engagement respecting it; otherwise, he waived the alleged fraud.”

So, did the purchasers lose their fraud claim by asking for more time to pay and for help with the farm? The court answered no: “We think it unjust and unreasonable to hold as a matter of law that the mere asking of a favor should deprive an innocent person of rights arising from an unquestionably fraudulent act.” The court also doubted that granting an extension of time would “constitute a waiver in the absence of estoppel or the making of a new agreement supported by consideration.”

So, back to our hypothetical. Just receiving regular distributions or asking for more time to pay would likely not waive a fraud claim.

Second Hypothetical: Signing An Amendment To Contract

Let’s create a new wrinkle–the managing member approaches you with an addendum that gives you a greater bonus distribution, but not a regular distribution. And you accept because you believe in your ability to increase sales. Will you be waiving or losing your fraud claim with respect to the regular distributions, the part of the original contract that was not amended?

The Oakland Raiders Case

In Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, in the 1990s, the professional football team Raiders sought to return to Oakland. The arena where the Raiders would play, the Coliseum, promoted Personal Seat Licenses (PSL’s) and club and luxury suites. The Coliseum informed the Raiders that the upcoming games for 1995 sold out in the first phase, and that included 44,700 PSLs. However, while some 45,000 PSL applications were received, only 37,000 PSL seats were assigned. Subsequently, the Raiders signed an agreement with the Coliseum to play in Oakland for 16 seasons. The Raiders learned the true facts afterwards.

So, the Raiders signed a new agreement, which incorporated and supplemented the original agreement. The Raiders received certain benefits as a result. Also, the new agreement stated that “except as otherwise specifically supplemented, interpreted or modified by this Supplement, all terms and provisions of the [original agreement] shall remain unmodified and in full force and effect.”

Afterwards, the Raiders sued for fraud and sought rescission of the agreements. The jury held that the Coliseum failed to prove that the Raiders had waived the fraud claim.

The Majority Opinion

Yet on appeal, the Oakland Raiders court, relying in part on Bagdasarian, held that the new agreement constituted an implied waiver of the fraud. The court explained that the core holding of prior California Supreme Court cases was that “one who, after discovery of an alleged fraud, ratifies the original contract by entering into a new agreement granting him substantial benefits with respect to the same subject matter, is deemed to have waived his right to claim damages for fraudulent inducement.” Importantly, the court explained the waiver doctrine as “an application of the doctrine of equitable estoppel.”

As a quick aside, the theories of waiver and equitable estoppel constitute defenses to certain torts. In short, waiver focuses on the intent of the party to relinquish its tort claim. Equitable estoppel focuses on the harmed party’s conduct.

With that in mind, the court held that the Raiders committed an implied waiver of its fraud claim. The Raiders negotiated a new agreement that concerned the same subject matter, modified the parties’ rights, granted the Raiders significant benefits, and reaffirmed the original agreement’s validity. Hence, as a matter of law, the Raiders could not sue.

The Dissenting Opinion

The dissenting opinion criticized the majority for eviscerating the waiver standard. The dissent stated that the jury may have determined that the amendment “was simply an agreement sought by both [Coliseum] and the Raiders for their mutual benefit, rather than agreement through which the Raiders, knowing of the fraud, affirmed the validity of the original contract and accepted substantial benefits not found therein, thereby demonstrating an intent to waive any fraud claim regarding the original contract.” The dissent argued the court took away the jury’s ability to consider intent by changing the analysis to estoppel, which focuses on conduct. And, the dissent explained “[t]here may be all sorts of reasons why a defrauded party would try to cut its losses and seek at least half a loaf through a subsequent agreement, without giving up its rights to be fully compensated for the fraud arising from the original agreement.”

Reconciling The Waiving Or Losing Of Fraud Claim In The Hypotheticals

So, back to our hypothetical. The Oakland Raiders case indicates that signing an addendum that provided you with greater benefits would likely mean you cannot sue for fraud. Yet, remember, the Bagdasarian court concerned purchasers who requested assistance with the farm and an extension of time to pay. The purchasers would have received a benefit by those amendments. The court though ruled that the purchasers had not lost their fraud claim. So, why the different results? The Oakland Raiders case emphasized that “ratifying the earlier contract sets this case apart.” With the ratification, the Raiders had induced the Coliseum to change its position to its detriment. So, following Oakland Raiders, if the addendum has language essentially stating that the original agreement is in full force and effect, then you will likely lose the ability to sue for fraud.

This is a difficult area of the law. A lawyer experienced in this arena will help guide you through this to assist you from losing or waiving your fraud claim.

Dealing With “I Don’t Recall” In Written Discovery

Mon, 10 Jun 2024 19:37:12 GMT

Dealing With “I Don’t Recall” In Written Discovery

Steven McLellan

Attorneys fret when receiving an “I don’t recall” answer in deposition and try to ensure the witness cannot wiggle out of the response at trial. But what if you receive an “I don’t recall” in a written discovery response? Knowing the California Civil Discovery Act will help you prevent the other side from revealing new information at trial responsive to your discovery requests, can help bolster a claim for sanctions against the opposing party, and provide better insight to your client on the case.

First, courts have been clear that evasive answers like “I don’t recall” “are an open invitation to sanctions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 (“Deyo”) [citing Stein v. Hassen (1973) 34 Cal.App.3d 294, 300].)

Second, the discovery rules as to requests for admission and requests for inspection provide mechanisms to ensure the responding party does not ambush the request party in trial by an “I don’t recall” response. For requests for admissions, when the responding party states it does not recall, it must “state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.” (Code Civ. Proc., § 2033.220, subd. (c).)

Similarly, for requests for inspection, if the responding party states that it does not have documents or doesn’t recall any documents, the responding party must do two things: (1) it “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand”; and (2) it must explain why it cannot comply, for example, “because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (Code Civ. Proc., § 2031.230.)

However, for interrogatories, the discovery statute does not require a statement of a good faith and reasonable effort to obtain a response. Instead, when a responding party “does not have personal knowledge sufficient to respond fully to an interrogatory,” then the responding party must so state–provided it has made “a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations.” (Code Civ. Proc., § 2030.220, subd. (c).)

Yet the interrogatory code provision does not require the responding party to state it made the reasonable and good faith effort. This is problematic where, in California, no obligation exists to update discovery responses, unlike in federal courts. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1328.) Further, in California, responses to interrogatories do not “prevent the defendant at the trial from relying on subsequently discovered facts [….] In fact, such answers would not even prevent production of facts now known to defendant but not included in the answers, upon a proper showing that the oversight was in good faith.” (Singer v. Superior Court of Contra Costa County (1960) 54 Cal.2d 318, 325.)

Interestingly, a court has held that just stating “inability to respond” is not actually a response. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406 [“Defendants did not ‘respond’ to the interrogatories by stating that they were ‘[unable] to respond.'”].) Hence, without the responding party stating it made a reasonable and good faith effort to respond, the trial court may hold that there is no response, and deem waived any objections. (See id. at p. 407; Code Civ. Proc., § 2030.290, subd. (a).) So, the failure to include a statement can result in significant penalties against the opposing party. (See also Deyo, supra, 84 Cal.App.3d at p. 782 [“If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.”].) So, responding parties should include a statement of reasonable and good faith effort to obtain the information despite the lack of a requirement in the statute.

Getting an “I don’t recall” in written discovery does not mean you should assume that the other side cannot change its response later. Instead, get the necessary qualifiers of a reasonable and good faith effort to lock in the other side and make them less credible if they try to change at trial. This is particularly important when the case is a “she-said she-said.” Further, it aids your client so that the facts are pinned down and you can provide a better evaluation and next steps to your client.

7 Rights To Know Before You Protest

Thu, 27 May 2021 20:28:06 GMT

7 Rights To Know Before You Protest

Claire Melehani

You have a First Amendment right to protest. However, the government is allowed to place certain narrow restrictions on the exercise of your rights. Make sure you’re prepared by brushing up on your rights before heading out into the streets to protest.

1. You Have The Right To Peacefully Protest In Public Forums

The First Amendment guarantees our rights to freedom of speech & assembly. So you have the First Amendment right to protest – peacefully – on public property.

If you’re on private property, the property owner can ask you to move. But streets, sidewalks, parks, and similar public spaces are “traditional public forums” that have always been a place where people can peacefully protest. You can protest in front of government buildings as long as you are not blocking access to the government building or interfering with other purposes the property was designed for.

2. Counter-Protesters Have The Same First Amendment Right to Protest

Police must treat protesters and counter-protesters equally. Police are permitted to keep antagonistic groups separated but should allow them to be within sight and sound of one another.

3. You Have The Right to Film Police Officers When They Are Policing At A Protest (A Public Space)

If they ask you to step back, if they say that you’re interfering in their work, then they can ask you to give them a little bit of space.

BUT you don’t have to stop filming.

4. Police Cannot Confiscate Or View Your Protest Photos or Videos Without a Warrant

If the officer says, “I need you to delete that photo” or “Let me look through those photos” the officer does not have the right to look through your photos. You do not have to consent to their request to look through your phone. The police would need a warrant from a judge in order to search your phone.

Even IF they have a warrant, they don’t have the right to delete your photos.

5. If Approached By Police At A Protest, Stay Calm, Keep Your Hands Visible, & Don’t Obstruct

If a police officer approaches you to “chat” while you’re at a protest, say as little as possible.

In some states, police do have the right to ask you your name. Stay calm & keep your hands visible.

6. You Have the Right to Ask The Officer If You’re Free To Leave

If the officer says “yes” then that means that you’re not being detained. Calmly walk away. If the officer says, “No, you cannot leave” then that means you are being detained.

7. You Have The Right To A Phone Call, But It Might Not be Private

If you are being detained, you have the right to ask for a phone call. If you call a lawyer, the police technically cannot listen to your phone call, but that is no guarantee that they aren’t listening.

But, if you call someone besides an attorney, the police are likely to listen in. So, if you use your phone call to ask family or friends to help, just let them know (1) where you are and (2) how they can come help you.

What To Do If You Believe Your Rights Have Been Violated

When you can, write down everything you remember, including the officers’ badge and patrol car numbers and the agency they work for.

Get contact information for witnesses.

Take photographs of any injuries.

Once you have all of this information, you can file a written complaint with the agency’s internal affairs division or civilian complaint board. You can also contact us

Depose Your Own Witness to Preserve Their Testimony

Mon, 10 May 2021 20:30:52 GMT

Depose Your Own Witness to Preserve Their Testimony

Claire Melehani

If you were to ask most lawyers whether it is wise to depose your own witness, you’d likely get a response touting the following, conventional, but flawed, opinion:

Never do a direct examination of your own witness at a deposition. Your witness is under your control, so you have the ability to fix any issues in their testimony later. For example, if opposing counsel uses the deposition testimony against you in a motion, you’ll just get a declaration from your witness that explains away the problem. If opposing counsel uses the witness’ bad testimony during trial, you simply call your witness to the stand to fix any issues with their deposition testimony. Why broadcast your strategy before the need arises?

Though that strategy may have been reasonable in a pre-COVID-19 world, it simply doesn’t hold water during a pandemic. In a time where more than 6.9 million people in the United States have been infected with the coronavirus and over 200,000 have lost their lives,[1] attorneys have good reason to worry about whether their witnesses will be available to swear to declarations or testify during trials. In most cases, trial is far removed from the deposition date. Meanwhile, coronavirus case numbers remain persistently high across much of the country. Deaths, though still well below their peak spring levels, averaged more than 1,000 per day in August — more than double the average from early July.[2] In mid-September, deaths still averaged around 850 per day; with the fall flu season rapidly approaching doctors and epidemiologists fear that the minor progress made in stemming coronavirus-related mortality will be lost.[3] Here in the San Francisco Bay Area, despite stringent self-isolation protocols, the spread continues, and over 15,000 Californians have already lost their lives.[4]

If your witness’ age or underlying medical conditions place them at high risk of coronavirus-related mortality, then you should strongly consider whether to depose your own witness – especially if your witness lives in a state that is a coronavirus hot spot and/or lives in a nursing home.[5]

My unconventional advice on this issue isn’t limited to the current pandemic. In any case involving an elderly witness, a witness with a terminal illness, or a witness with multiple chronic health conditions that put them at increased risk, it is unwise to rely on your ability to present the witness’ live testimony during trial. We all know that the only things you can rely on are “death and taxes” and, unfortunately, during a pandemic the former may hit closer to home than you anticipate. Should your key witness succumb to coronavirus, the conventional wisdom of (1) choosing not to depose your own witness or (2) not asking questions of your own witnesses at a deposition noticed by the other side may be dangerously wrong.

What should law firm clients who are at high risk of COVID-19 complications know?

First, if you are an attorney reading this article, I suggest you make your clients aware of the pros and cons of choosing to depose your own witness, discussed herein, so that you can help your client make an informed decision.

If you are a party to a lawsuit and you already have an attorney, feel free to email this article to them. Your attorney may have a good, strategic reason for waiting to depose your own witness who is at-risk of COVID-19-related mortality, but you should start a candid discussion.[6]

Finally, if you have yet to file a complaint but expect you’ll need to soon, you should speak with an attorney sooner rather than later. Why? Even if you aren’t ready to file a lawsuit now, your attorney can start collecting evidence and depose witnesses who are at high risk of later unavailability even before the complaint is filed. (See CCP § 2035.010 et. seq.) The longer you wait to start collecting evidence,[7] the higher the risk of key witnesses with pre-existing health issues succumbing to COVID-19.[8] If you depose key witnesses who are at high risk of death or other forms of unavailability that would prevent them from testifying at a later date, you will preserve potentially helpful testimony and discover the location of other key evidence. But remember that, absent a showing of good cause,[9] you can only depose witnesses once. (CCP § 2025.610.)

So, if you decide that you should depose your own witness, what comes next?

Normally, you cannot use your own client’s deposition transcript at trial – unless the witness is unavailable. (CCP § 2025.620, subd. (c)(2)(C).) And some of the clearest forms of unavailability are serious illness or death.

Once the court determines that a witness is unavailable to testify, then the witness’ deposition transcript can be used at time of trial. The questions and answers must be read into the record during trial, which allows the testimony to be considered by the judge or jury.

Even better, you could have your witness’ deposition recorded by a videographer. This adds to the deposition costs, but if you need to present the video at trial because the witness is unavailable, having a means for the fact finder to see your witness’ credibility will be well worth it – not to mention that a video will be much more likely to hold the jurors’ attention.

Under normal circumstances, doing a direct examination during your witness’ deposition is seldom advised, as it gives opposing counsel advance notice of your case theory. However, during a pandemic, I’d much rather forecast my strategy than risk not having key testimony at all. Life has been fundamentally reordered because of the virus – so too must litigation strategy change.

If you believe that you or your key witness(es) are at increased risk of coronavirus-related mortality, you may schedule an initial consultation to discuss the issue with Claire and the GED team.

[1] https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html, last accessed on September 22, 2020

[2] Id. (Data accessed on August 28, 2020.)

[3] Id. (Data accessed on September 22, 2020.)

[4] Ibid.

[5] About 40 percent of deaths from the virus in the United States have been tied to nursing homes and other long-term care facilities. (https://www.nytimes.com/interactive/2020/us/coronavirus-nursing-homes.html, last accessed on September 22, 2020.)

[6] That being said, it doesn’t hurt to you make sure they are aware of both sides of the debate on this issue. Your attorney can help make the best decision for your case when armed with information. Knowledge is power.

[7] Reasonable prelawsuit investigations are protected by the First Amendment right to petition the government for redress of grievances (right to sue for injury). (See Tichinin v. City of Morgan Hill (2009) 177 CA4th 1049, 1069 [discussing examples of reasonable prelawsuit investigations, including hiring a private investigator to conduct legal surveillance of adversary].)

[8] As time passes, even under normal, non-pandemic circumstances, witnesses may forget important facts, or inadvertently lose or dispose of documents that could be critical evidence in your case.

[9] This author believes good cause may exist where you deposed a witness early out of fear of the witnesses later unavailability, said unavailability did not materialize, and the party seeking an additional deposition subsequently discovered additional information you did not have an opportunity to ask the witness about during the initial deposition. Attorneys can petition the court to request a witness’ second deposition. (See CCP § 2025.290(a).)

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Claire Melehani Sworn In As 2026 President of the Santa Clara County Bar Association

Today marks a meaningful milestone in my legal career

When a Contract Isn’t Worth the Paper It’s On: Key Mistakes That Void Agreements in California

When a Contract Isn’t Worth the Paper It’s On: Key Mistakes That Void Agreements in California

Steven McLellan & Claire Melehani

Common Contract Defects

Why “Templates” Often Fail

What Happens When a Contract Fails

Guardianship Battles and Conservatorship Red Flags: What Families Need to Watch For in California

Guardianship Battles and Conservatorship Red Flags: What Families Need to Watch For in California

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Common Red Flags

Fiduciary Duties Under California Law

When Court Intervention Is Necessary

Easements and Encroachments in California Property Disputes: Your Rights Explained

Easements and Encroachments in California Property Disputes: Your Rights Explained

Steven McLellan & Claire Melehani

What Is an Easement?

Encroachments: A Different Problem

Why These Disputes Escalate

Legal Remedies and Strategy

Silent Disputes: How Minority Shareholders Can Stop Unfair Business Decisions Before They Escalate

Silent Disputes: How Minority Shareholders Can Stop Unfair Business Decisions Before They Escalate

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The Hidden Risk of Majority Control

Early Warning Signs

Legal Tools Available Under California Law

Strategic Intervention Matters

When Non-Compete Agreements Are Enforceable in California: What Employees and Employers Should Know

When Non-Compete Agreements Are Enforceable in California: What Employees and Employers Should Know

Steven McLellan & Claire Melehani

The General Rule in California

The Exceptions Most People Miss

The Risk of Overreaching Agreements

What To Do If You’re Facing a Non-Compete

McLellan Law Group, LLP Nominated as Rising Stars in the 2025 LMBD Awards

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Two Rising Stars, One Mission: Excellence in Client Advocacy

McLellan Law Group Featured by Insider Weekly as Go-To Resource for Tech Workers Facing Layoffs

Understanding Partition Actions in California: Process, Key Steps, and Legal Protections

Understanding Partition Actions in California: Process, Key Steps, and Legal Protections

What Is a Partition Action?

Two Main Approaches to Partition

Key Steps in a California Partition Lawsuit

The Partition of Real Property Act in California

When Does This Act Apply?

Common Challenges in Partition Lawsuits

Practical Tips for Navigating a Partition Action

Final Thoughts

Real Estate Litigation Consultations for Californians

Understanding Arbitration: When It’s Required, How It Works, and the Pros and Cons

Understanding Arbitration: When It’s Required, How It Works, and the Pros and Cons

Claire Melehani & Steven McLellan

What Is Arbitration?

When Is Arbitration Required?

Motions to Compel Arbitration

Advantages of Arbitration

Drawbacks of Arbitration

How to Decide If Arbitration Is Right for You

McLellan Law Group, LLP: Your Partner in Arbitration

Final Thoughts

California’s New Discovery Rules: How Sections 2016.090 and 2023.050 Will Impact Your Case

California’s New Discovery Rules: How Sections 2016.090 and 2023.050 Will Impact Your Case

Claire Melehani & Steven McLellan

Section 2016.090: Mandatory Initial Disclosures

What Must Be Disclosed?

Supplemental Disclosures

Section 2023.050: Mandatory Sanctions for Discovery Misconduct

When Are Sanctions Imposed?

Exceptions to Mandatory Sanctions

Reporting Requirements for Attorneys

Rebuttable Presumption for Self-Represented Parties

Key Takeaways for Civil Litigation

How McLellan Law Group, LLP Can Help

Conclusion

Litigation Consultations for Californians

California Discovery Rules FAQs

6 Questions to Ask Before Hiring an Appellate Attorney

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