Plus, Great Quote On Appellate Advocacy … Ostrich Beware!
Oliver W., the famous trotting ostrich. Circa 1903. Library of Congress.
Although involving interesting amended judgment and litigation successor issues, Hearn Pacific Corp. v. Second Generation Roofing, Inc., Case No. A142203 (1st Dist., Div. 2 May 2, 2016) (published) reminds everyone that that an assignment involves assumption of both benefits and burdens. Here is the pertinent part it had to say with regard to potential assumption of a transaction with an attorney’s fees clause: “[A]n assignee’s acceptance of the benefits of a contract containing a fee clause, by bringing suit, constitutes an implied assumption of the attorney fee obligations, unless there is evidence the parties did not intend to transfer those fee obligations. (Erickson v. R.E.M. Concepts, Inc., 126 Cal.App.4th 1073, 1087 (2005); see also Heppler v. J.M. Peters Co., 73 Cal.App.4th 1265, 1289–1292 (1999); Civ. Code, §§ 1589, 3521.) And that is true even if, like here, there is only a partial assignment of contractual rights. (See Erickson, at pp. 1086–1087.)”
Now, here is the great appellate advocacy quote, which relates to how transparent one needs to be on appeal versus trying to “hide the ball.” Enjoy this quote: “Responsible (not to mention, effective) appellate advocacy requires confronting serious potential obstacles, not burying one’s head in the sand to them, be there potentially controlling adverse authorities or problematic portions of the record. As has been said by the federal circuit that is home to Chicago’s Lincoln Park Zoo: ‘The ostrich is a noble animal, but not a proper model for an appellate advocate.’ (Gonzalez- Servin v. Ford Motor Co. (7th Cir. 2011) 662 F.3d 931, 934 [Posner, J.].)”