Procedural Posture

Posted by normisheil on March 11th, 2021

Procedural Posture

Appellant insured filed an action against appellee insurer to recover on a fire insurance policy. The Superior Court of Merced County (California) entered a judgment for the insurer. The insured appealed.

Overview

The insured owned a store that was damaged by fire. His insurance claim was denied by the insurer because there was evidence that the fire had been set by someone with a key to the store. In an action to recover under the policy the trial court refused to give an instruction on the presumption of innocence under Cal. Civ. Proc. Code § 1963(1). The jury returned a verdict for the insurer. On appeal, the court reversed because there was insufficient evidence to take the presumption out of the case and the court should have given the instruction. Moreover, the failure to give the instruction, given the disputed nature of the facts, was prejudicial to the insured. Finally, the fact that the presumption had been mentioned by counsel was inadequate because the insured was entitled to have the court instruct the jury on the relevant law. The insured remaining assignments of error in instructing the jury on were overruled.

Outcome

The court reversed the judgment for the insurer that it was not liable to the insured for a fire loss.

Procedural Posture

Petitioner attorney challenged the decision of respondent, the State Bar of California, which recommended that the attorney be suspended from the practice of law for a period of three months.

Overview

The attorney, a member in good standing of the state bar since his admission was charged with violating his oath and duties as an attorney pursuant to Cal. Bus. & Prof. Code §§ 6103, 6067, 6068, with wilful violation of Cal. Bar R., Prof. Conduct R. 9, by the commingling of funds, and with the commission of acts involving moral turpitude and dishonesty in violation of Cal. Bus. & Prof. Code § 6106.Daylight Savings California Following hearings, the state bar found that the court willfully mishandled certain funds received and held by him in trust and recommended that he be suspended from the practice of law for a period of three months. On review, the court ordered that the attorney be suspended as recommended. The court held that the state bar correctly found that the attorney violated § 6106 when there were insufficient funds in a trust account to cover a check the attorney issued to a client's employer as part of a settlement agreement. The only way that there could have been insufficient funds was if the attorney had improperly drawn on the trust account. It was immaterial that the employer was not a client; the attorney was still a fiduciary to the employer with regard to the trust account.

Outcome

The court ordered that the attorney be suspended for three months as recommended by the state bar.