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Appeals, Writs, and Complex Motions Practice

Kimball's Significant Cases

Here are some of my more significant victories:
Moores v. Irish Beach Water Dist.
(September 22, 2015, A145743, unpub.), In this appeal from an order in a bifurcated proceeding determining inverse condemnation and resulting damages by the Water District's drilling of a new well on plaintiff's property, outside the parties' written contract and easement, Mr. Sargeant drafted a motion to dismiss the appeal for trial counsel's filing in the First District Court of Appeal. The appellate court agreed this was an improper purported appeal from an interim order, as there remained causes of action to be tried in a future bifurcated trial.
Schmidt v. Board of Trustees
Schmidt v. Board of Trustees (June 25, 2014, C069835, unpub.) involved an appeal from a motion for summary judgment that had been granted against Mr. Sargeant's client, Dr. Schmidt. The issue involved the enforceability and interpretation of a settlement agreement in an employment grievance proceeding. Kimball was lead counsel, assisted by Linda Conrad. The Court of Appeal found that there were disputed issues of material fact regarding the cause of action for fraud, requiring reversal of the summary judgment and remand for trial on the merits.
North Counties Engineering v. State Farm Insurance Co.
Published at (2014) 224 Cal.App.4th 902. In this insurance coverage case, Mr. Sargeant provided extensive brief-writing, editing, research and tactical appellate advice to North Counties Engineering's trial attorneys and counsel of record, Law Office of Duncan James and Donald J. McMullen. On appeal from the trial court's granting a directed verdict after jury trial, the First District Court of Appeal reversed, finding that the engineering firm's "Products and Completed Operations" coverage, as specifically provided in its insurance policy gave rise to duty to defend the firm against claims for breach of contract and negligence in the design and construction of a large earthen dam erected on a winery's property. (Mr. Sargeant was made co-counsel of record in the California Supreme Court to successfully defeat the insurance company's efforts to obtain that Court's review or, alternatively, to have the decision depublished [S217967].) After reversal, the engineer received a substantial recovery from State Farm.
Marriage of Stanzler
(Decided February 2011, Third Dist. #C060476, unpublished.) In this case, the husband and wife entered into a oral settlement agreement before trial on their dissolution. Later, the husband moved to set aside the agreement on the basis that she had failed to properly disclose, under statutory marital property disclosure requirements, the fact that she had paid him a community property advance with a loan against their community property, thereby allegedly shortchanging him when they balanced out the community property division. The trial court denied the motion, finding the disclosure statute did not apply because there was a settlement. On appeal, with Mr. Sargeant representing the wife, the court agreed with husband that the wife's cryptic listing of the loan on her financial disclosure form did not comply with the "rigorous disclosure requirements" under Family Code sections 2100 et seq. Further, section 2107 provides that, "the failure to comply with the disclosure requirements does not constitute harmless error.” Unfortunately for the husband, that provision "has been found unconstitutional in light of the state Constitution’s requirement that no judgment may be set aside unless there has been a miscarriage of justice." And in this case, there was evidence that husband's counsel was well aware of the existence of the loan, having received three letters from wife's counsel mentioning the amount and nature of the loan. Moreover, wife's counsel's declaration established that the challenged amount of the loan ($90,000) had been properly accounted for in the negotiations and calculations leading to the oral settlement. On this basis, the Court of Appeal affirmed the order denying set-aside of agreement, resulting in a major victory for Mr. Sargeant's client.
Marriage of Schopfer
Decided in 2010 in a published decision at 186 Cal.App.4th 524, this case involved a teenager who continued to live with her step-father (Mr. Sargeant's client) after the child's mother died. Her biological father then stopped paying child support, and the stepfather filed a motion seeking custody and support. The father in response filed a pleading indicating he was requesting an order for "guideline child support," which the trial judge later ordered. On appeal, the father argued that, under statute and caselaw, the lower court lacked authority to order that child support be paid to a third party (the stepfather) absent an express agreement. The Court of Appeal rejected the argument, accepting that the father's request for guideline support was sufficient, by itself, to constitute the required express agreement. Further, the court concluded that the guideline child support order made during a child's minority, which remained in effect after the child's 18th birthday because she was a full-time high school student, need not be modified simply because she was attending a boarding school when she turned 18, and thus neither party had custody of the by-then emancipated child. "As long as, based on the facts of the case, it is possible to reasonably assign physical “responsibility” for an adult child, the guideline formula remains applicable, even though neither parent (or any other person) has 'custody' of the child."
Thurman v. Boss
(2010, Third Dist. #C058709, unpublished.) The Thurmans filed suit seeking to quiet title to their real property against Mr. Sargeant's client, Ms. Boss, challenging her claim to a prescriptive easement across their property to gain access to her property. She cross-complained to quiet title as to her easement and requested declaratory relief and a permanent injunction. The trial court found Boss had established a prescriptive easement across the Thurmans’ property. On appeal, the court found that there was no evidence of "secretive use" by Boss and her guests, as the Thurmans had argued. "In any event, if the Thurmans were in the dark as to the origins and destinations of the various travelers across their property, it was a darkness of their own creation, caused by their failure to inquire." Unlike an action for adverse possession, the prescriptive users were not required to publicly proclaim their entitlement to use the road. On this basis as well as others, Mr. Sargeant and his client prevailed.
Marriage of Klug
Published in 2005 at 130 Cal.App.4th 1389. Mr. Sargeant represented the wife in a dissolution proceeding. During marriage the husband had retained an attorney to prepare a limited partnership to protect the couple's assets from possible litigation involving his medical practice. Later, after the husband filed a petition for dissolution, the same attorney assisted husband in moving millions of dollars overseas into trust accounts. Eventually, the couple entered into a marital settlement agreement, dividing their assets. In the meantime the wife sued the attorney for legal malpractice and eventually recovered $346,000 by settlement. Husband then filed a motion to divide the proceeds as an "omitted community property asset" that wife had failed to disclose. The Third District Court of Appeal agreed with Mr. Sargeant that the malpractice did not "arise" until after the parties separated. Additionally, although not required for the decision, the court found that, under the equitable doctrine of unclean hands, the husband's post-separation financial transfer conduct would bar him from claiming any interest in the settlement proceeds.
Marriage of Crane
(C041904, C042783, unpublished 2004). Mr. Sargeant represented the husband in his appeal from a marital dissolution judgment. The Third District agreed with Mr. Sargeant's argument that the trial court erred in assigning the entire debt from the parties' line of credit to husband, while assigning to wife the smaller indebtedness represented by a credit card debt. The appellate court also agreed that the trial court erred in awarding to the wife reimbursement for funds spent to improve the husband's separate property because there was no evidence that those funds were community property.
Graeagle Land and Water Co. v. Gilpatrick
(2002, Third Dist., #C038812, unpublished.) This appeal involved an action to enforce an easement for a road giving public access for a land development project. One of the landowners burdened by the easement erected barriers in the road, and the developer sued. The trial court granted summary judgment, finding there had been an implied dedication of the roadway for public use. Representing the developers, Mr. Sargeant showed that the grant of easement specified it was for public purposes and the plaintiffs had produced unopposed evidence in support of its claim that the public had used the roadway in the past. The Court of Appeal therefore affirmed the summary judgment.
Nahid H. v. Superior Court
Decided in 1997 and published at 53 Cal.App.4th 1051. Mr. Sargeant was privately-retained to bring a writ petition in a juvenile dependency case. He represented an Iranian mother, who had been living in Iraq with her two minor daughters. They became political refugees after war broke out in Iraq. The mother sent the children to live in the United States to ensure their safety; she intended to join them as soon as possible. After one of the girls was molested by her adult caretaker in California, the minors were declared dependents of the juvenile court. Several years later, when the mother gained entry into the United States, her children declared they did not want to live with her and expressed their desire to remain in the foster home. Based on the children's desires, the juvenile court entered an order setting a permanency planning hearing. The mother then filed a modification petition to set aside the dependencies or, alternatively, to develop a reunification plan. In a sweeping opinion, the Court of Appeal issued a peremptory writ of mandate commanding the juvenile court to vacate its order setting a permanency planning hearing, and to enter a new order directing the department of social services to develop a reunification plan designed to overcome the alienation between the children and their mother.
Marriage of Gunz
(Decided Nov. 2003, Third Dist # C041519, unpublished.) The husband, a medical doctor, claimed his retirement plan contributions should be deducted from his gross income pursuant to Family Code section 4059, for "mandatory union dues and retirement benefits, provided that they are required as a condition of employment." The trial court denied the deduction and husband appealed. Representing the wife, Mr. Sargeant successfully argued that because, like most closely-held professional corporations, the husband's pension plan allowed its physicians to "opt out" of the plan, the contributions were not "required" for his employment.