(Based on The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-194.)
Although attorneys must advocate zealously for their clients (Davis v. State Bar (1983) 33 Cal.3d 231, 238 [188 Cal.Rptr. 441]), there are limits to an attorney’s conduct, as set forth in the Rules of Professional Conduct and the Business and Professions Code. (Hawk v. Super. Ct. (1974) 42 Cal.App.3d 108, 126 [116 Cal.Rptr. 713].) Attorneys must “maintain the respect due to the courts of justice and judicial officers,” and cannot “seek to mislead... by an artifice or false statement of fact or law.” (Bus. and Prof. Code, § 6068(b).)
“A member of the bar should not under any circumstances attempt to deceive another. ‘An attorney's practice of deceit involves moral turpitude.’” (Segretti v. State Bar (1976) 15 Cal.3d 878, 888 [126 Cal.Rptr. 793].) An attorney who commits any act of moral turpitude or dishonesty, whether or not in the course of the attorney’s conduct as an attorney, is subject to disbarment or suspension. (Bus. and Prof. Code, § 6106; Coviello v. State Bar (1955) 45 Cal.2d 57, 66 [286 P.2d 357].)
“[A] lawyer communicating on behalf of a client with a nonclient may not knowingly make a false statement of material fact to the nonclient, and may be liable to a nonclient for fraudulent statements made during business negotiations.” (Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 291 [17 Cal.Rptr.3d 26].) Section 6068 of the Business and Professions Code requires, among other things, that an attorney “employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth.” (Bus. and Prof. Code, § 6068(d).) Any representation alleged to have been false must be an affirmation of fact as opposed to an opinion. (Cohen v. S&S Construction Co. (1983) 151 Cal.App.3d 941, 946.) Puffing or sales talk is generally considered opinion. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 112.)
The determination of whether an alleged misrepresentation “is a statement of fact” or is instead “mere puffery” is a legal question that may be resolved on motion. (Cook, Perkiss, and Leihe, Inc. v. Northern California Collection Service, Inc. (9th Cir. 1990) 911 F.2d 242, 245.) In general, mis-descriptions of a product that are very specific in nature, such as the number of channels available on a satellite television product, may be actionable, whereas generalized and vague statements concerning a product’s quality or superiority, such as the system provides “crystal clear digital” video, are considered non-actionable “puffery” upon which a reasonable consumer would not rely. (Consumer Advocates v. Echostar Satellite Corporation (2003) 113 Cal.App.4th 1351, 1361; Newcal Industries, Inc. v. Ikon Office Solution (9th Cir. 2008) 513 F.3d 1038, 1053.)
In other words, “[a] statement is considered puffery if the claim is extremely unlikely to induce consumer reliance. Ultimately, the difference between a statement of fact and mere puffery rests in the specificity or generality of the claim.” (Bank of America Corp v. Super. Ct. (2011) 198 Cal.App.4th 862, 870.) “[A] statement that is quantifiable, that makes a claim as to the ‘specific or absolute characteristics of a product,’ may be an actionable statement of fact while a general, subjective claim about a product is non-actionable puffery.” (Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311.)
“A fraud claim against a lawyer is no different from a fraud claim against anyone else.” (Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 291 [17 Cal.Rptr.3d 26]; Goodman v. Kennedy (1976) 18 Cal.3d 335, 346 [134 Cal.Rptr. 375]; Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 202 [227 Cal.Rptr. 887].) “Every attorney is guilty of a misdemeanor who... [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” (Bus. and Prof. Code, § 6128(a).)
For purposes of imposing discipline, an attorney’s representations may be characterized as “moral turpitude,” “dishonesty” or “corruption” under Business and Professions Code section 6106 only if the representations were made with an intent to mislead. (Wallis v. State Bar (1942) 21 Cal.2d 322, 328 [131 P.2d 531].) Acts of moral turpitude, which are prohibited by Business and Professions Code section 6106, “include concealment as well as affirmative misrepresentations.... ‘[N]o distinction can... be drawn among concealment, half-truth, and false statement of fact.’” (In the Matter of Loftus (Review Dept. 2007) 5 Cal.State Bar Ct. Rptr. 80, 86.)
Nature of Proceedings: Motion Order Vacating Jdgmnt/New Trial/Transfer to LA Co; Vacate Jdgmnt/Ch.Venue for New Trial City of South Pasadena’s motion to vacate judgment and change venue for new trial.City of La Cañada Flintridge’s motion for order vacating judgment and/or for a new trial, and order for transfer to Los Angeles CountyRULINGSBoth motions are denied.SUMMARY OF THE SOUTH PASADENA MOTIO...
..having a fair trial, accident or surprise, which ordinary prudence could not have guarded against, and newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered an...
The Court intends to Grant plaintiff's request for judicial notice. The Court admonishes defense counsel for failing to comply with CCP § 430.41. The Court strongly admonishes both attorneys for their blatant and inexcusable miscitations of case authority.The Court intends to SUSTAIN without leave to amend Las Virgenes' demurrer to the seventh and eighth causes of action. Las Virgenes Investment's...
..(1985) 39 Cal.3d 311, 318.Plaintiff supports its opposition with a request for judicial notice of two documents in the file. The Court intends to Grant the request for judicial notice. It also supports its opposition with a declaration from its attorney attempting to introduc...
52 Cal. 3d 1085 (1991) 804 P.2d 711 278 Cal. Rptr. 86 JOSEPH L. DROCIAK, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent. Docket No. S014385. Supreme Court of California. February 21, 1991. COUNSEL David A. Clare for Petitioner. Diane C. Yu and Starr Babcock for Respondent. OPINION THE COURT. The Review Department of the State Bar Court recommends petitioner Joseph L. Drociak b...
..and Rules of Professional Conduct, former rule 7-105(1) (same) (presently rule 5-200(B) under new Rules of Professional Conduct that became effective May 27, 1989) (all future section and rule references are to these respective sources unless otherwise indicated). The sole issue in the present proceeding is whether the recommended discipline is excessive. We adopt the recommendation of the review...
I. Background Plaintiff Helen Givens (“Plaintiff”) brings this action against her former husband, Roy Givens (“Husband”) and several other defendants for damages associated with domestic violence and financial abuse. According to the allegations of the third amended complaint (“TAC”), and relevant here, defendant Banner Bank (“Banner”) is a Washington state chartered bank headquartered in Walla...
..f was unaware of their existence. (Id. at ¶¶ 179, 182.) The terms of the loan were subsequently modified two times in 2013 and 2015, but Plaintiff did not sign the documents. (Id. at ¶¶184, 186.) Banner sold the loans to Bank of New York, who hired Sellpoint, a mortgage servicer, to foreclose on the loan. (TAC, ¶ 187.) At the time of the foreclosure, Plaintiff was in discussions to modify the loa...
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT ROXANE E. SMITH, ET AL., Plaintiff(s), vs. CINDY Y. CHI, ET AL., Defendant(s). CASE NO: BC703634 [TENTATIVE] ORDER DENYING MOTION FOR SANCTIONS Dept. 3 1:30 p.m. July 11, 2019 Background Facts Plaintiffs, Roxane and David Smith filed this action against Defendants, Cindy Chi and Bank of Hope for dam...
..f the accident. They contend the evidence is not complete, as it jumps around in time and does not depict key images of the parties’ accident. Law Governing Spoliation of Evidence The intentional spoliation of evidence by a party to the litigation to which it is relevant is an unqualified wrong. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17.) Although separate tort cause...
DEBRA E. LASICH, Plaintiff, v. FORD MOTOR COMPANY, et al., Defendants. Case No.: BC625034 Hearing Date: October 21, 2016 [TENTATIVE] ORDER RE: (1) DEMURRER TO PLAINTIFF’S COMPLAINT (2) MOTION TO STRIKE PUNITIVE DAMAGES FROM COMPLAINT BACKGROUND This is a “lemon-law” action arising out of the purchase of a vehicle sold by Defendants. Plaintiff Debra E. Lasich (“Plaintiff”) brings this...
..of Cal. Bus. & Prof. Code § 17200, et seq. DISCUSSION A. Demurrer A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint's material factual allegations, but no...
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Hopefully this was not an attempt to mislead this Court by omitting to bring relevant facts to its attention in violation of B&P Code sec.6068(d). In addition the referred Ex. I shows that on 9/2 Mr. Berenjian only sought a 4-day continuance because his attorney had just been permitted to withdraw. Yet this motion was not made until 3 weeks later and then on an ex parte basis.
Oct 01, 2016
Orange County, CA
Defendant alleges that plaintiffs’ counsel’s conduct violates Business and Professions Code section 6068, subdivision (d), Business and Professions Code section 6106, Business and Professions Code section 6128, Penal Code section 115, subdivision (a) and violates California Rule of Professional Conduct 5-200, subparts (A) and (B). Defendant also alleges the conduct is sanctionable under Code of Civil Procedure section 128.7, subdivision (b)(1).
Aug 29, 2016
Fresno County, CA
6068(d) to act truthfully and, therefore, constitutes bad faith. See Bihun v. AT&T Info. Sys (1993) 13 CA4th 976, 991 (reversed on other grounds) and CEB ?8:10. In providing the same response to 118 requests it is an indication that plaintiff did not review the responsive documents prior to serving the response. (continued on part 2) =(302/JPT)
Jul 14, 2015
San Francisco County, CA
This would appear to the Court to be a violation of the Standards of Professional Conduct and duties of an attorney set forth in B&P Code § 6068 (d): To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.
May 29, 2013
Ventura County, CA
On the last ground, Defendant contends that Plaintiffs' counsel's conduct violated CRPC 5-200, Business and Profession's Code section 6068(d) and (f), and Penal Code sections 136.1, 133, and 137.
Feb 14, 2013
Personal Injury/ Tort
Sacramento County, CA
(Rule 5-200(B), Cal.Rules Prof.Conduct). If petitioner is not the trustee, what standing does she have to marshal trust assets ? gmr
Aug 09, 2012
Ventura County, CA
B&PC § 6068(d). The emphasis on the legal obligation ignores the ethical obligation to inform the court and counsel that Santa Barbara was not truly neutral. See Marks declaration. Every attorney has a duty to employ only those means as are consistent with truth, and never to seek to mislead the judge by artifice or false statement of fact or law. § 6068(d). Concealment of material facts is just as misleading as explicit false statements, and non-disclosure of material facts is misconduct. Di Sabatino v.
Nov 17, 2009
Santa Barbara County, CA
AMENDED MOTION FOR SUMMARY JUDGMENT GRANT,NO OPPOSITION FILED.(302/J.MCBRIDE)...
Jun 01, 2004
San Francisco County, CA
MOTION FOR SUMMARY JUDGMENT OFF CALENDAR, UNTIMELY PROOF OF SERVICE, 03/12/04 BY MAIL. (302/REQ/ju)...
Apr 01, 2004
San Francisco County, CA
Notice Of Motion And Motion To Be Relieved As Counsel-Civil HEARING REQUIRED.(302/KMM/JU)...
Feb 17, 2004
San Francisco County, CA
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