News

[08/15] 6 get Legionnaires' disease in upstate NY; 1 dies
[08/15] Jury rejects assault suit against Osteen's wife
[08/15] Court says copyrights apply even for free software
[08/15] Jackson Browne sues McCain, RNC over song in ad
[08/15] Trump to buy McMahon's home, let him live there
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Articles

How Dog Owners Can Avoid Being Bitten by a Lawsuit
The numbers are up, and it's not good news: Dogs bite 4.7 million people every year.
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Ten Things to Think About: Before You Sue
People involved in disputes often rush to judgment and decide to sue. Here are some things to think about before deciding to start a lawsuit to settle your dispute.
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Case Summaries

[09/03] Johansen v. Comm. of Internal Revenue In a tax case arising out of a divorce, a holding by the Tax Court that spousal support payments qualify as alimony to be reported as income by the payee is affirmed where: 1) state law requires that spousal support payments terminate on the death of either spouse unless otherwise agreed in writing; and 2) the divorce agreement does not extend spousal support payments beyond death of either party.

[09/03] Alanis-Alvarado v. Mukasey Petition for review of deportation order is denied where petitioner violated a protection order issued under California Family Code Section 6320, which by definition fits categorically within the protection orders whose violation qualifies as a deportable offense under the Immigration and Nationality Act.

[08/29] In the Interest of M.N. In a custody case, affirmation of the termination of a mother's parental rights on the basis of untimely filing of a statement of points for appeal is reversed where the trial court was permitted to grant a motion to extend the time for filing the statement of points on a showing of good cause.

[08/27] David L. v. Superior Ct. of Orange County Regarding juvenile court order setting a new permanent plan selection and implementation hearing, petition for writ of mandate and request for stay are denied where: 1) section 366.3, which provides for a new 366.26 hearing for children under the guardianship, does not require a modification petition; and 2) the prima facie evidence supported the juvenile court's decision to set a 366.26 hearing.

[08/27] Sheri T. v. Superior Ct. of Orange County Petition seeking extraordinary relief from juvenile court order setting new permanent plan selection hearing is denied where: 1) order setting a new permanent plan selection hearing was correct; 2) when circumstances have changed, the court should hold a permanent plan selection hearing unless the mother proves there is a compelling reason not to do so; and 3) the mother cannot show prejudice from the juvenile court's decision to hold a new permanent plan selection hearing and she will have an opportunity to fully litigate the issues at that time.
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[09/05] US v. Ault In a case challenging enhanced sentencing based on misdemeanors in which defendant was unrepresented, the sentence imposed is affirmed as not violating the Sixth Amendment right to counsel where: 1) two of the four misdemeanors considered did not include incarceration; and 2) plaintiff waived counsel in the remaining two misdemeanor matters.

[09/05] Barnett v. Roper Denial of a petition for habeas corpus is affirmed where: 1) the Missouri procedural rule requiring sufficient pleading before granting an evidentiary hearing on ineffective assistance of counsel constituted independent and adequate state grounds barring federal review; 2) there was no clear and convincing evidence of discriminatory intent in jury selection; and 3) the prosecutor's comments at trial did not deny defendant due process.

[09/05] US v. Wecht In a trial accusing a public official of misusing his office for private financial gain, denial of motion to dismiss indictment on double jeopardy grounds is affirmed, and case remanded for reassignment to a different judge, where: 1) the declaration of a mistrial due to a deadlocked jury was procedurally flawed; 2) a violation of Fed. R. Crim. P. 26.3 lessens the degree of deference accorded to a district court's finding of manifest necessity of a mistrial; but 3) an analysis of the factors for consideration of declaration of a mistrial contained in Comment 9.06 of the model criminal jury instructions supported the conclusion that there was manifest necessity to declare a mistrial in this case.

[09/04] People v. Castagne In a conviction for unlawfully possessing methamphetamine, sentence finding defendant ineligible for probation is reversed where: 1) record does not establish that defendant's acts and omissions evinced a complete refusal to undergo treatment; and 2) facts in the present case are subject to conflicting inferences and the lower court never considered the question whether defendant demonstrated a complete refusal to undergo drug treatment.

[09/04] US v. Garcia-Alvarez Conviction for carjacking and firearms offenses is affirmed over claims of error that: 1) the evidence proffered against defendant was not sufficient; and 2) the district court erred in denying defendant's motion for a new trial.
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[09/05] Sindecuse v. Katsaros In a case alleging common law fraud surrounding a stock purchase, grant of summary judgment in favor of defendant is affirmed where the allegedly fraudulent statements could not support claims of fraud because they were: 1) predictions of the future; and 2) a promise of future action not accompanied by a present intent not to perform.

[08/29] Trinity Universal Ins. Co. v. Cellular One Group In a suit for a declaratory judgment that plaintiffs-insurers did not owe a duty to defend defendant-wireless telephone manufacturer in suits claiming biological injury caused by radiation emitted by its phones, the court relied on its simultaneously-released opinion in Zurich Am. Ins. Co. v. Nokia, No. 06-1030 (Tex. Aug. 29, 2008), to hold that plaintiff-insurer had a duty to defend defendant-wireless telephone manufacturer.

[08/29] Trammell Crow Cent. Tex., Ltd. v. Gutierrez In a negligence suit alleging that the property manager of a shopping mall failed to provide adequate security, resulting in a criminal attack in which the victim was killed, affirmation of judgment in favor of plaintiffs is reversed where the criminal attack was not foreseeable, and defendants had no duty to protect invitees on their property from third-party criminal acts.

[08/29] Brookshire Grocery Co. v. Goss In a personal-injury suit, jury finding that defendant-employer was negligent is reversed and judgment rendered that plaintiff-employee take nothing where: 1) plaintiff's injury was caused by attempting to step around a loaded cart; 2) the potential danger of doing which was commonly known; and 3) defendant therefore had no duty to warn plaintiff of any risk.

[08/29] Fed. Ins. Co. v. Samsung Elec. Am. In a suit for a declaratory judgment that plaintiffs-insurers did not owe a duty to defend defendant-wireless telephone manufacturer in suits claiming biological injury caused by radiation emitted by its phones, the court relied on its simultaneously-released opinion in Zurich Am. Ins. Co. v. Nokia, No. 06-1030 (Tex. Aug. 29, 2008), to hold that plaintiff-insurer had a duty to defend defendant-wireless telephone manufacturer.
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[09/03] McMillan v. Stroud In a challenge to a probate court order directing plaintiff to pay a lien issued by defendant State Department of Health Care Services under the Medi-Cal California Medical Assistance Program, court order is affirmed where plaintiffs: 1) did not establish how much of the initial settlement constitutes reimbursement for medical expenses; 2) presented no contemporaneous evidence of discussions at the time of settlement on the subject; and 3) failed to provide defendant with the name of purported medical carrier which would have allowed defendant to attempt to determine the true value of medical expenses in this case. Given this record, the court was satisfied that $83,837.43 constituted a fair determination of the amount of reimbursable medical expenses due to defendant.

[09/03] Officer v. Chase Ins. Life & Annuity Co. In a suit to recover the face amount of plaintiff's wife's life insurance policy, denial of summary judgment for plaintiff is affirmed, and request for certification of questions to the Indiana Supreme Court is denied, where: 1) the policy's suicide provision was unambiguous, valid and enforceable, and not a disproportionate forfeiture or illegal penalty; and 2) the doctrine of substantial performance did not apply to a time-limited suicide exclusion.

[09/02] Adams v. Monumental Gen. Cas., Co. In a lawsuit filed by plaintiff-insured truck owner against defendant-insurer for a refund of portion of her premium because she paid the loan early, appeal of grant of motion to compel arbitration is dismissed where: 1) court has no jurisdiction over this appeal because the district court compelled arbitration; and 2) when a district court compels arbitration of a dispute under one contract and is silent about whether another contract provides for arbitration of the same dispute, section 16(a)(1)(B) is not implicated.

[08/29] Spangle v. Farmers Ins. Exchange In claim to seek recovery against a "garage operations" liability policy issued by used car dealership, summary judgment against plaintiff is reversed and remanded where: 1) there are triable issues of material fact regarding title to the automobile and consequently whether minor was a permissive user of the automobile; and 2) it cannot be established as a matter of law that minor was not covered by the policy if he was a permissive user.

[08/29] Ulico Cas. Co. v. Allied Pilots Ass'n In a suit seeking a declaratory judgment that plaintiff-insurer did not have coverage and did not owe defendant's defense costs for a suit against defendant-insured, judgment notwithstanding a jury verdict in favor of defendant is affirmed in part and reversed in part where: 1) an insurer's contractual coverage under a claims-made policy can be expanded by the doctrines of waiver and estoppel to cover a risk not otherwise within the policy coverage, namely a suit against the insured that was not reported until after the policy expired; but 2) the doctrines of waiver and estoppel cannot be used to re-write the contract of insurance and provide contractual coverage for risks not insured.
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[09/03] Johansen v. Comm. of Internal Revenue In a tax case arising out of a divorce, a holding by the Tax Court that spousal support payments qualify as alimony to be reported as income by the payee is affirmed where: 1) state law requires that spousal support payments terminate on the death of either spouse unless otherwise agreed in writing; and 2) the divorce agreement does not extend spousal support payments beyond death of either party.

[09/03] US v. Garth Conviction and sentencing for conspiring to defraud the U.S. and aiding and abetting the making of false claims against the government, are affirmed where: 1) no facts considered had an extreme effect on sentencing; 2) sentencing related to charges of conspiracy; 3) any variance between claims proved at trial and stated in the indictment did not result in an increased sentence; and 4) evidence relied upon did not include hearsay or improper expert testimony and was of relevance which outweighed any prejudice to defendant.

[09/02] City of New York v. Smokes-Spirits.com In a case concerning liability of out-of-state cigarette retailers for failing to report purchases by state residents to the state, alleging civil RICO claims, state common law fraud and public nuisance claims, and violations of General Business Law section 249, dismissal for failure to state a claims, is vacated in part, remanded in part, severed in part, affirmed in part, and two questions are certified to New York Appeals Court where: 1) defendant-City had standing to sue under RICO, where it has alleged a direct injury of lost taxes by reason of defendants' commission of mail and wire fraud through sale of cigarettes to City residents without complying with the Jenkins Act; 2) in all four cases, City failed to plead "reasonable reliance on the part of the plaintiff" for its claim of common law fraud; 3) for purposes of GBL, omission of information about a consumer's duty to pay taxes to that consumer's home state and city cannot be tantamount to an affirmative misrepresentation that a consumer does not need to pay taxes; and 4) questions regarding whether the City has standing to sue under GBL and whether the City may assert a common law public nuisance claim that is predicated on N.Y. Public Health Law section 1399-ll are certified to New York Court of Appeals.

[08/29] Kosinski v. Comm'r of Internal Revenue Tax Court decision upholding a tax deficiency and a fraud penalty is affirmed where: 1) the district court's sentencing findings lack issue-preclusive effect; and 2) the government carried its burden of proving fraud.

[08/28] Barba v. Perez Judgment and order denying the motion to tax costs are each affirmed over claims of error that: 1) the jury's verdict is not supported by substantial evidence; 2) the trial court erred in denying his motion for nonsuit based on an agency theory of liability; 3) the trial court erred in rejecting his proposed special jury instruction; and 4) the trial court erred in allowing Barba to recover section 998 costs against him.
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[09/05] Sindecuse v. Katsaros In a case alleging common law fraud surrounding a stock purchase, grant of summary judgment in favor of defendant is affirmed where the allegedly fraudulent statements could not support claims of fraud because they were: 1) predictions of the future; and 2) a promise of future action not accompanied by a present intent not to perform.

[09/04] Am. Bankers Ass'n v. Lockyer After remand, in a case interpreting California's Financial Information Privacy Act (FIPA) in light of the federal Fair Credit Reporting Act (FCRA), a ruling that the FRCA entirely preempted FIPA section 4053(b)(1), which restricts the sharing of nonpublic consumer personal information between financial institutions and their affiliates, is reversed and remanded where the preempted portions of FIPA are severable, narrowing FIPA section 4053(b)(1) to exclude consumer report information as defined by the FCRA.

[09/03] Pearle Vision, Inc. v. Romm In a suit over violations of a franchise agreement, judgment of contempt for failure to comply with a preliminary injunction to make available to plaintiff certain items, including patient files, is affirmed where: 1) defendant was given an opportunity to purge the contempt through compliance; 2) defendant waived his arguments that the sanction was excessive and unrelated to plaintiff's damages; and 3) defendant was given sufficient leniency as a pro se litigant.

[09/03] Extra Equipamentos e Exportacao Ltda. v. Case Corp. In a commercial fraud case alleging that defendant induced plaintiff to sign a release of its claims in litigation by promising to retain plaintiff as a distributor of its products, summary judgment for defendant is affirmed and awards of costs affirmed in part and reversed in part where: 1) a no-reliance clause in the release was enforceable to prevent plaintiff from recovering for fraud; and 2) the language of 28 U.S.C. section 1920(6) authorizing awards for "compensation of interpreters" does not authorize the awarding of fees for translation of written documents.

[09/03] Owner-Operator Independent Drivers Assn v. Landstar Sys. In a class action lawsuit brought against defendant motor carrier alleging that freight hauling leases violated the Truth-in-Leasing regulations for failing to disclose that banking fee charges would be deducted from compensation paid to the truck owners and drivers, partial summary judgment and award of damages in favor of defendant is affirmed in part, reversed in part, and remanded where: 1) district court erred in finding that defendant was not required to disclose banking fee charge and document charge-back items; 2) district court erred in granting an injunction sealing the pricing information provided to defendant company; 3) district court correctly ruled that section 276.12(h) requires defendant to provide documentation related to charge-back items but erred in concluding that defendant met the requirement; and 4)district court did not abuse its discretion in decertifying the class for actual damages.
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[09/03] Ritchey v. City of Independence In an employment action under Title VII and 42 U.S.C. section 1983, summary judgment to defendant is affirmed where: 1) defendant presented independently verifiable evidence of a good faith non-retaliatory reason for plaintiff's discharge; and 2) plaintiff's claims were tied to no provision of the Constitution.

[08/27] 216 Jamaica Ave., LLC v. S & R Playhouse Realty Co. In a case involving the enforceability of a "gold clause" contained in a 1912 lease agreement, which required payment of rents to be in gold coins, a judgment against plaintiff-owner who tried to enforce the clause is reversed and remanded where: 1) contrary to the ruling below, the clause is enforceable; and 2) a remand was necessary for the district court to interpret the clause, to determine the obligation it imposes on the lessee, and to address any other defenses in the first instance, including lessee's estoppel-by-deed and waiver defenses.

[07/24] MAC East, LLC, v. Shoney's, Inc. In a diversity case involving a commercial real estate lease and a proposal by an assignee of that lease to sublease the real estate to a third party, grant of summary judgment for plaintiff-corporation as to liability on its tortious interference claim is reversed where: 1) defendant corporation was an "essential entity to the purported injured relations"; 2) both plaintiff and defendant were parties to the Assignment Agreement, and thus were "parties to a comprehensive interwoven set of contract or relations"; and 3) defendant cannot be a stranger to the sublease when consummation of the sublease would leave it obligated on the covenants on the ground lease, effectively forming a business relationship between it and proposed subleasee. A question regarding whether a commercial reasonableness standard tempers defendant's "sole discretion" to withhold consent to a proposed sublease is certified to the state supreme court.

[07/18] Cascade Crossing II, LLC v. Radioshack Corp. In a suit for declaratory judgment, back rent, and attorneys' fees and costs, a ruling that plaintiff's attorneys' fees were not capped since O.C.G.A. section 13-1-11 did not apply is vacated and the case remanded where: 1) the Georgia Supreme Court answered a certified question affirming that section 13-1-11 applies to, and limits, the award of attorneys' fees and costs; and 2) an award for full attorneys' fees and costs as provided for in the lease agreement was precluded.

[06/03] Baychester Shopping Ctr., Inc. v. San Francisco Residential Rent Stabilization & Arbitration Bd. San Francisco Residential Rent Stabilization and Arbitration Board's decision finding plaintiff-shopping center liable for rent overpayments charged to a tenant is affirmed over a claim that plaintiff could not be held liable for unlawful rent increases imposed by a former landlord.
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[09/04] Kingman Reef v. US In an action to quiet title, dismissal for lack of subject matter jurisdiction is affirmed where: 1) the Quiet Title Act's statute of limitations had run in the more than twelve years since plaintiff's predecessor in interest knew or should have known of the government's claim to possession of the land; and 2) the government did not clearly and unequivocally abandon its interest.

[09/04] Burkhart v. Coleman In an action to quiet title, rulings that federal bankruptcy law does not preempt California protection of bona fide purchasers and that unauthorized post-bankruptcy sale of real property causes title to rest with the purchaser, not the bankruptcy estate, are affirmed where: 1) the bankruptcy estate failed to record title in the property; and 2) a bona fide purchaser bought and recorded title in the property.

[09/04] Schaffter v. Creative Capital Leasing Group In a contract claim related to a real estate transaction, judgment in favor of plaintiffs is affirmed over claims of error that: 1) the court erred by finding defendant defaulted under various agreements with third parties to purchase condominiums, thereby triggering its responsibility under a Buyer Broker Compensation Contract to pay it commissions; 2) there was no default because the developers pursued no damages against defendant and opted to cancel the agreements; 3) the Buyer Broker Contract and identical contract with plaintiff's assignor are void because they did not contain a date certain for their termination; and 4) assignment of rights to commissions is void because it was made prematurely.

[08/29] Trammell Crow Cent. Tex., Ltd. v. Gutierrez In a negligence suit alleging that the property manager of a shopping mall failed to provide adequate security, resulting in a criminal attack in which the victim was killed, affirmation of judgment in favor of plaintiffs is reversed where the criminal attack was not foreseeable, and defendants had no duty to protect invitees on their property from third-party criminal acts.

[08/29] Kerlin v. Sauceda In a suit alleging that defendant defrauded plaintiffs of oil and gas royalties and other interests in Padre Island, judgments for plaintiffs are reversed as time-barred where: 1) plaintiffs could have discovered defendant's wrongdoing through reasonable diligence and were not entitled to tolling of the running of limitations on that basis; and 2) defendant was present in the state, by virtue of doing business there, during all of the alleged wrongdoing, and statutory tolling therefore did not apply.
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[09/04] Merritt v. United Parcel Serv. Decision of Industrial Accident Board to terminate disability plaintiffs paid to claimant by employer is reversed where an admission by employer that claimant's disability was "on-going" was the equivalent of a judicial admission and should have been given conclusive effect.

[09/03] Padilla v. Pomona College In an action for personal injury and premises liability arising from a worksite injury during the remodel of a dormitory at defendant Pomona College, grant of summary judgment in favor of defendants is affirmed over claims of error that: 1) defendants had delegated the task of making the worksite safe to others, and that they did not exercise any retained control in a manner that affirmatively contributed to plaintiff's injuries; 2) California Occupational Safety and Health Act of 1973 (Cal-OSHA) regulations did not establish defendants' negligence per se or impose a non-delegable duty on defendants; and 3) that plaintiff's expert testimony lacked foundation.

[08/29] In Re: Poly-America, L.P. In a retaliatory-discharge case in which plaintiff challenged the grant of defendant's motion to compel arbitration, petition for writ of mandamus is conditionally granted where: 1) provisions of the arbitration agreement prohibiting punitive damages or reinstatement undermined the purposes of the Workers' Compensation Act and were void as unconscionable; 2) provisions requiring splitting of arbitration fees between employer and employee and placing limits on discovery were not unconscionable; and 3) the unconscionable provisions of the agreement were severable and the agreement was otherwise enforceable.

[08/22] Craft v. Astrue Denial of a motion to alter or amend a judgment that plaintiff did not qualify for Disability Insurance or Supplemental Security Income benefits is reversed and remanded where: 1) there was not an "accurate and logical bridge" between the ALJ's recitation of the mental medical evidence and a decision to account for plaintiff's mental impairments by limiting him to unskilled work; and 2) the stated reasons of the ALJ for finding that plaintiff lacked credibility were contradicted by the objective evidence.

[08/18] US v. Simpson A sentence and order of restitution imposed for defendant's crime of mail fraud, involving his underreporting of payroll information for his businesses to his workers' compensation insurance carriers, is affirmed where the district court correctly concluded that the "loss" caused by this conduct was the amount of additional premiums that the insurance carriers would have charged had they been given accurate information.
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[06/30] MICHAEL J. v. THE SUPERIOR COURT OF ORANGE COUNTY (ROGERS) The conservator of the person and the estate of a mentally disabled person who is unable to communicate her wishes does not have the power to initiate and prosecute a petition for the dissolution of her marriage.

[03/12] E. ARMATA, INC. v. KOREA COMMERCIAL BANK OF NEW YORK Under the Perishable Agricultural Commodities Act (PACA), a bank is not liable to the beneficiaries of a PACA trust for receipt of funds in breach of the trust where, having extended revolving overdraft privileges to a produce dealer covered by PACA, the bank routinely applied deposited PACA funds to reduce the negative balance in the produce dealer's overdrawn account.

[03/12] E. ARMATA, INC. v. KOREA COMMERCIAL BANK OF NEW YORK Under the Perishable Agricultural Commodities Act (PACA), a bank is not liable to the beneficiaries of a PACA trust for receipt of funds in breach of the trust where, having extended revolving overdraft privileges to a produce dealer covered by PACA, the bank routinely applied deposited PACA funds to reduce the negative balance in the produce dealer's overdrawn account. (Amended opinion)

[03/11] AM. BANANA CO., INC. v. REPUBLIC NAT'L BANK OF NEW YORK, N.A. A failure to reduce to writing an agreement that violates the Perishable Agricultural Commodities Act (PACA) should not result in the preservation of the PACA trust where the same agreement, if memorialized, would have resulted in forfeiture of such protection. Because plaintiffs forfeited trust protection, defendant-bank has a complete defense to PACA liability; judgment for plaintiffs is reversed.

[02/19] ESTATE OF STODDART Probate court's orders, denying claim of niece of decedent husband to a portion of trust of decedents husband and wife under the laws of intestacy and ordering that the trust be distributed to the estate of decedent wife, are affirmed. The law in effect at the time the probate court made its orders applies to the issues raised in this case on appeal.
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