News

Alternative Dispute Resolution

[02/12]

Case Summaries

Civil Procedure

[03/18] Payne v. Peninsula Sch. Dist.
In an action under the Individuals with Disabilities Education Act (IDEA) by the mother of an autistic student, dismissal of the action is affirmed where the district court correctly found that it lacked subject matter jurisdiction over the federal claims because plaintiff failed to exhaust her administrative remedies before coming into federal court.

[03/17] Chandler v. State Farm Mut. Auto. Ins. Co.
In an action seeking car rental costs from an insurer arising out of an auto accident, dismissal of the complaint is affirmed where, under California law, an insurer is permitted to recoup a payout from a third-party tortfeasor's insurance company before the insured has sued the third-party tortfeasor, and without first making the insured whole.

[03/17] Holmes v. Kimco Realty Corp.
In plaintiff's negligence suit against a retailer for injuries he sustained when he fell on ice/snow in the parking lot, summary judgment in favor of the defendant is affirmed as the state of New Jersey would not impose a duty on an individual tenant for snow removal from the common areas of a multi-tenant parking lot when the landlord has retained and exercised that responsibility.

[03/17] Buck v. Thomas M. Cooley Law Sch.
In plaintiff's lawsuit against her former law school claiming violation of the ADA and breach of various implied contracts, arising from her dismissal from the law school for falling below the required minimum G.P.A. of 2.0, dismissal of the lawsuit is affirmed where plaintiff is precluded by res judicata from raising the claims at issue as she should have supplemented her complaint in state court with claims that arose during the pendency of that suit.

[03/16] Acevedo v. Allsup's Convenience Stores, Inc.
In a class action against defendant-employer, seeking payment of unpaid wages and overtime under the Fair Labor Standards Act, the district court's ruling that plaintiffs' claims were improperly joined is affirmed where district courts have considerable discretion to deny joinder when it would not facilitate judicial economy and when different witnesses and documentary proof would be required for plaintiffs' claims. However, dismissal of the action is reversed where misjoinder was not an appropriate ground for dismissal.

[03/16] Price v. Johnson
In an appeal from the district court's order remanding to state court an action seeking an order to take an investigatory deposition of a Congresswoman, the appeal is dismissed where the court of appeals would only review remand orders if the district court affirmatively stated a non-28 U.S.C. section 1447(c) ground for remand.

[03/16] McBride v. CSX Transp. Inc.
In plaintiff's action under the Federal Employer's Liability Act (FELA) seeking compensation for injuries he sustained while performing switching operations for his employer, district court's judgment in favor of the plaintiff is affirmed where: 1) common law proximate causation is not required to establish liability under the FELA; and 2) district court did not commit instructional error refusing defendant's proffered instruction and giving the causation instruction to the jury instead as it correctly and completely informed the jury of the applicable law.

[03/15] Qureshi v. US
In plaintiff's appeal from a sua sponte order of the district court requiring him to obtain the court's permission before filing suit in any federal court in the state of Texas, the order is vacated where the district court entered the injunction without giving any prior notice to plaintiff and without offering him any opportunity to oppose the injunction or be heard on its merits.

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Civil Rights

[03/17] Miller v. Mitchell
In plaintiffs' suit to enjoin the district attorney of Wyoming County in Pennsylvania from bringing criminal charges in retaliation for their refusal to attend an education program in lieu of facing child pornography charges for "sexting," district court's grant of preliminary injunctive relief is affirmed as plaintiffs have shown a likelihood of success on the merits of their constitutional retaliation claims, and are entitled to preliminary injunctive relief.

[03/17] Tully v. Barada
In plaintiff's 42 U.S.C. section 1983 suit claiming defendants violated his rights under the Fourth and Fourteenth Amendments by summoning him to court and initiating juvenile proceedings without probable cause, district court's dismissal of the case for failure to state a claim upon which relief can be granted is affirmed as a plaintiff cannot initiate a section 1983 claim asserting only that he was summoned and prosecuted without probable cause.

[03/17] T.E. v. Grindle
In a 42 U.S.C. section 1983 suit against an elementary principal and the school district's band teacher arising from molestation of several young girls by the band teacher, district court's denial of the principal's motion for summary judgment on qualified immunity grounds is affirmed as the plaintiffs have put forth evidence which, if credited by the jury, is sufficient to create liability under the clearly established law.

[03/17] Rosin v. Monken
In defendant's 42 U.S.C section 1983 action challenging Illinois' mandatory life-long registration requirement, arising from defendant's 2003 guilty plea to a misdemeanor offense of non-consensual sexual contact in New York under assurances that he would not be required to register, dismissal of the suit is affirmed as the New York order was silent as to registration in any other state and, absent such language, there is no relevant provision to which Illinois must give full faith an credit. Furthermore, even if there had been such a provision, New York lacks the power to dictate the means by which Illinois can protect its public.

[03/16] Monserrate v. N.Y. State Senate
In an action seeking a preliminary injunction that would have unwound the expulsion of state senator Hiram Monserrate from the New York State Senate, denial of the injunction is affirmed where: 1) assuming that Monserrate's expulsion burdened constitutional rights related to voting and political association, any such burden was justified by the state interest in maintaining the integrity of the Senate; 2) it would be anomalous to rule that the Constitution prohibits a state legislature from exercising, in the regulation of its internal affairs, a latitude comparable to that expressly allowed to Congress; and 3) the availability of adequate process defeated plaintiffs' "stigma-plus" claim.

[03/16] Taravella v. Town of Wolcott
In an action alleging that plaintiff's right to due process was violated when she was fired from municipal employment without a hearing, denial of summary judgment based on qualified immunity is reversed where defendant-mayor's conduct was reasonable as a matter of law because: 1) plaintiff conceded that defendant neither knew nor had reason to know about an alleged oral promise to plaintiff; and 2) plaintiff's employment agreement was ambiguous as a matter of law.

[03/16] Rushing v. Parker
In an action alleging that plaintiff's false arrest violated his civil rights under 42 U.S.C. section 1983, summary judgment for defendants based on qualified immunity is affirmed where there was no evidence that the arresting officer had reason to believe the perpetrator was anyone other than plaintiff, given the victim's complaint and identification.

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Consumer Protection

[03/17] DeKoven v. Plaza Assocs.
In a class action lawsuit under the Fair Debt Collection Practices Act, summary judgment in favor of the defendant is affirmed as survey evidence prepared by plaintiffs' expert was no good as a control letter was confusing and misleading.

[03/15] Kim v. Carter's Inc.
In plaintiffs' suit against a children's clothing retailer for damages under Illinois contract and consumer protection law, claiming they were victims of deceptive pricing, dismissal of the complaint is affirmed where: 1) with respect to plaintiffs' breach of contract claim, defendant has fulfilled its obligations under the straightforward, everyday sales contract described in the complaint; and 2) plaintiffs' allegations fail to establish the actual damages element of their Illinois Consumer Fraud and Deceptive Business Practice Act (ICFA) claim.

[03/10] Hesse v. Sprint Corp.
In a class action alleging that defendant Sprint Corp. unlawfully collected a Washington state tax from Washington customers, summary judgment for defendant is vacated and remanded where a prior class action settlement challenged Sprint's billing of customers for certain federal regulatory fees, and the Washington plaintiffs' interests were not adequately represented in that litigation.

[03/09] Martinez v. Wells Fargo Home Mortgage, Inc.
In an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee, dismissal of the complaint is affirmed where: 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.

[03/08] Milavetz, Gallop & Milavetz, P.A. v. US
In an action by a law firm seeking declaratory relief, arguing that plaintiff was not bound by the Bankruptcy Abuse Prevention and Consumer Protection Act's (BAPCPA) debt relief agency provisions and therefore could freely advise clients to incur additional debt and need not make the requisite disclosures in its advertisements, the Eighth Circuit's order rejecting the district court's conclusion that attorneys are not "debt relief agencies" under BAPCPA, upholding application of BAPCPA's disclosure requirements to attorneys, and finding BAPCPA section 526(a)(4) unconstitutional, is affirmed in part where: 1) attorneys who provided bankruptcy assistance to assisted persons were debt relief agencies under the BAPCPA; and 2) BAPCPA section 528's requirements were reasonably related to the government's interest in preventing consumer deception. However, the court of appeals' order is reversed in part where BAPCPA section 526(a)(4) prohibited a debt relief agency only from advising a debtor to incur more debt because the debtor was filing for bankruptcy, rather than for a valid purpose.

[03/02] Pfizer v. Sup. Ct.
In plaintiffs' action against Pfizer, the manufacturer of Listerine mouthwash, pursuant to the Unfair Competition Law (UCL) and False Advertising Law claiming that Pfizer marketed the mouthwash in a misleading manner by representing that the use of it can replace the use of dental floss in reducing plaque and gingivitis, defendant's petition for writ of mandate seeking to overturn an order certifying the class action is granted as the ruling certifying a class consisting of all persons who purchased Listerine in California during a six-month period is overbroad, and In re Tobacco II Cases, 46 Cal.4th 298 (2009), does not require a different disposition in this case.

[02/22] Southwestern Bell Tel. Co. v. Mktg. on Hold Inc.
In an interlocutory appeal of a trial court's class certification order, where the class representative obtained assignments of claims that the defendant telephone company improperly charged some of its business customers certain municipal fees, the judgment of the court of appeals is reversed and the class decertified where: 1) the assignments are valid and provide standing; 2) the class representative's claims are typical of the other class members' claims; 3) common questions of law or fact predominate; but 4) the putative class representative failed to establish that it adequately represents the claim.

[02/15] In re: Barner
In debtor's appeal from the bankruptcy court's ruling finding that an automatic stay did not apply to a foreclosure sale of her home, the order is affirmed where: 1) 11 U.S.C. sections 362(d)(4) and (b)(20) did not prohibit enforcement of a 2004 order lifting the automatic stay as to debtor's residence; and 2) the Bankruptcy Abuse Prevention and Consumer Protection Act did not modify or affect orders issued in cases filed before its effective date.

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Dispute Resolution & Arbitration

[03/10] Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd.
In an appeal from a district court's order granting plaintiff's motion for a preliminary injunction and enjoining defendant from proceeding with an arbitration initiated against plaintiff before the Financial Industry Regulatory Authority, the order is affirmed where the "serious questions" standard for assessing a movant's likelihood of success on the merits remains valid in the wake of recent Supreme Court cases, and neither the district court's assessment of the facts nor its application of the law supported a finding of abuse of discretion.

[03/09] San Francisco Hous. Auth. v. SEIU Local 790
Superior court's order vacating an arbitration award in its entirety on the ground that the the award is contrary to layoff provisions of the memorandum of understanding (MOU) between the parties is reversed as the remedy imposed by the arbitrator did not conflict with clear and explicit language of the MOU and it was rationally related to the breach identified.

[03/09] Kuhn Constr. Co. v. Diamond State Port Corp.
In an action to enjoin an arbitration initiated by defendant based on a referee clause in the agreement between the parties, grant of defendant's motions to dismiss the complaint and compel arbitration is reversed where the referee clause, on these facts, did not clearly require arbitration.

[03/04] Pac. Bell Tel. Co. v. Cal. Pub. Utils. Comm.
In a telecommunications company's appeal from (1) the district court's confirmation of an arbitral order affirming the California Public Utilities Commission's (CPUC) requirement that plaintiff lease entrance facilities to competitor local exchange carriers (LECs) at Total Element Long Run Incremental Cost (TELRIC) rates for the purpose of interconnection; and (2) the district court's order vacating the arbitrator's affirmance of CPUC's conclusion that 47 C.F.R. section 51.319(e)(2)(ii)(B) applied only on routes where competitive LECs were not "impaired" as to DS3 transport circuits, the orders are affirmed where: 1) FCC regulations authorized state public utilities commissions to order incumbent LECs to lease entrance facilities to competitive LECs at regulated rates for the purpose of interconnection; and 2) the plain language of the governing regulation, 47 C.F.R. section 51.319(e (2)(ii)(B), limited a competitive LEC to a maximum of ten DS1 circuits along any route regardless of whether the competitive LEC was impaired as to DS3 lines.

[03/01] Powershare, Inc. v. Syntel, Inc.
In parties' action for breach of a business agreement, a district court's denial of defendant's motion to stay litigation pending arbitration is reversed where: 1) the agreement contains a mandatory arbitration provision; and 2) the standard of review to be employed by a district judge when reviewing a magistrate judge's order on a motion to stay litigation pending the resolution of a parallel arbitration proceeding is under the "clearly erroneous or contrary to law" standard elucidated in Rule 72(a).

[02/26] Gravillis v. Coldwell Banker Residential Brokerage Co.
In plaintiff's action against his brokers for failing to disclose the structural damage of his home, trial court's decision affirming the arbitrator's award of damages in favor of the plaintiff is affirmed as the arbitration agreement does not explicitly and unambiguously provide for an expanded scope of review.

[02/24] Drum v. San Fernando Valley Bar Ass'n
In plaintiff's action against a bar association, trial court's grant of defendant's dismissal is affirmed as a voluntary bar association did not engage in an unfair business practice when, allegedly, it unilaterally refused to sell its membership mailing list to a person who intended to offer low-priced mediation services in competition with higher-priced mediation offered by some of the association's members.

[02/22] Oaktree Capital Mgmt., LP. v. Bernard
Trial court's judgment confirming an arbitration award against defendant-investor for breach of fiduciary duty, arising from his failure to disclose an investment opportunity to his real estate investment hedge fund is affirmed as the arbitration agreement here barred judicial review, as it stated that the arbitrator's award will be "binding" and that "all decisions of the arbitrator...shall not be subject to appeal."

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Ethics & Disciplinary

[03/15] In the Matter of Goldstein
In an attorney disciplinary proceeding, the Delaware Supreme Court finds that a public reprimand was the appropriate sanction for respondent-attorney where a lawyer's ethical duties under the Interpretive Guideline for Rule 1.16 of the Delaware Lawyers' Rules of Professional Conduct arise any time a lawyer is representing an interested party in a residential real estate transaction, and the borrower or mortgagor is not represented by counsel, and respondent violated Rule 1.16 by failing to provide timely written disclosure to the borrowers.

[02/26] Florida Bar v. Bitterman
A referee's report and recommendations pertaining to the misconduct of an attorney while under a rehabilitative suspension, as a result of the her inappropriate behavior in dealing with an unrepresented person and conduct involving dishonesty, are approved but the recommended sanction is disapproved and the attorney is disbarred and taxed with costs.

[02/18] In re: Saghir
The Second Circuit removes an attorney from the bar of the court of appeals, pursuant to the court's reciprocal discipline rule, on the ground that the attorney was previously disbarred by the Southern District of New York.

[02/18] Rodriguez v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C.
In an appeal from the district court's order awarding attorneys' fees after an infant compromise hearing, the award is affirmed where: 1) the district court did not err in looking beyond the retainer agreement between plaintiffs and their attorneys to the actual work performed by the various attorneys; and 2) the district court did not err in determining that appellant-attorneys did not obtain informed consent from the client for the fee-sharing agreement.

[02/17] Gebhart v. SEC
In a petition for review of the SEC's order sustaining a National Association of Securities Dealers disciplinary sanction against petitioners-securities salespersons for making false statements to clients in connection with the sale of promissory notes used to finance the conversion of mobile home parks to resident ownership, the petition is denied where the SEC considered all of the evidence bearing on petitioners' actual state of mind, including their extreme departure from ordinary standards of care, and found that they were consciously aware of the risk that their statements were false.

[01/28] Keach v. Cty. of Schenectady
In an appeal from a district court's order denying plaintiff's motion to recuse the district judge, the appeal is dismissed where the district court merely engaged in routine judicial commentary and criticism of plaintiff's counsel, while declining to impose sanctions and making no findings of professional misconduct.

[01/15] US Commodity Futures Trading Comm. v. Dizona
In an action by the Commodity Futures Trading Corporation claiming that defendant-trader attempted to manipulate the market price of natural gas in interstate commerce, judgment as a matter of law for defendant is affirmed where: 1) a summary witness for plaintiff was not a qualified witness who could explain defendant's employer's record keeping system; and 2) a plaintiff expert's general finding of biased reporting at defendant's employer and defendant's incriminating statements on an audiotape were not sufficient to demonstrate that defendant made false entries into the spreadsheets that were sent to the publications.

[01/13] Siegel v. SEC
In a petition for review of the SEC's affirmance of the National Association of Securities Dealers' award of restitution against petitioner-securities representative, the petition is granted where the SEC completely failed to articulate any meaningful standards governing the level of causation required under Principle 5 of the Financial Industry Regulatory Authority Sanction Guidelines.

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Ethics & Professional Responsibility

[03/12] Alexander v. Cahill
In a First Amendment challenge to attorney advertising rules issued by the New York Appellate Division barring, inter alia, testimonials from clients relating to pending matters, portrayals of judges or fictitious law firms, attention-getting techniques unrelated to attorney competence, and trade names or nicknames that imply an ability to get results, and establishing a thirty-day moratorium for targeted solicitation following a specific incident, including targeted ads on television or in other media, summary judgment order invalidating most of the content-based restrictions and upholding the thirty-day moratorium is affirmed in part where the content-based restrictions in the disputed provisions regulated commercial speech protected by the First Amendment. However, the order is reversed in part where: 1) the prohibition on advertising mentioning fictitious firms was valid because it targeted potentially misleading advertising; and 2) as to the moratorium, there was a substantial state interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers.

[03/11] Cent. Concrete Supply Co. Inc. v. Bursak
In plaintiff's suit against an attorney claiming that he conspired with his client to defraud plaintiff, grant of plaintiff's leave to amend in response to the attorney's successful challenge that the complaint failed to allege compliance with the prefiling requirement under Civ Code section 1714.10(a) is affirmed as, in appropriate circumstances, a trial court may permit an amendment of the complaint after sustaining a demurrer based on section 1714.10.

[03/05] Smith v. Mahoney
In a capital habeas matter, the denial of the petition is affirmed where: 1) although defense counsel inadequately investigated the facts of the case before allowing petitioner to plead guilty, petitioner did not establish that he was prejudiced by his lawyer's representation; 2) non-character, non-circumstance evidence need not factor into the constitutionality of a death sentence; and 3) petitioner failed to develop his claim of judicial bias sufficiently to warrant an evidentiary hearing.

[03/04] Coito v. Sup. Ct.
In plaintiff's wrongful death suit against the State of California and various other defendants for the drowning death of her 13-year old son, superior court's denial of plaintiff's motion to compel production of certain recorded witness statements is reversed and plaintiff's petition for a writ of mandamus granted where: 1) written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work-product, and thus neither is a list of witnesses from whom statements have been obtained; and 2) the state failed to show that the recorded statements of the four juvenile witnesses were protected work product.

[03/03] Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.

[03/03] Teachers' Ret. Sys. of La. v. PriceWaterhouseCoopers LLP
In a shareholder derivative action brought on behalf of AIG for breach of fiduciary duty against PricewaterhouseCoopers under New York law, the Delaware Supreme Court certifies the following question to the New York Court of Appeals: Would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation; and, the outside auditor did not knowingly participate in the corporation's fraud, but instead, failed to satisfy professional standards in its audits of the corporation's financial statements?

[03/03] In re: Whirlpool Corp.
In a trademark infringement suit brought by LG Electronics against Whirlpool, relating to a dryer that uses steam to reduce wrinkles, Whirlpool's petition for a writ of mandate challenging the district court's order to disclose communications between its attorneys and its outside advertising agencies is denied as it failed to show both that the order will be effectively unreviewable if Whirlpool is forced to wait until the end of the case and also that the order is patently erroneous or usurpative in character. Furthermore, the Supreme Court held in Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009), that rulings that allegedly infringe upon the attorney-client privilege are not appealable as collateral orders, and as such, the appeal must be dismissed for lack of jurisdiction.

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Injury & Tort Law

[03/17] Willbros RPI, Inc. v. Continental Cas. Co.
In an action against an insurer seeking a declaratory judgment that defendant was required to provide defense and indemnity, partial summary judgment for plaintiff is affirmed where: 1) conduct that clearly fell outside of the professional services exclusion provides an independent "but for" cause of the injury; and 2) indemnity issues must await resolution of the underlying suit. However, the order is reversed in part where defendant-insurers' "Other Insurance" provisions conflicted and liability for defense of the underlying suit should thus be apportioned on a pro rata basis.

[03/17] In re Ephedra Prods. Litig.
In a personal injury action alleging injuries resulting from the ingestion of the drug ephedra, the Second Circuit certified the following questions to the New York Court of Appeals: 1) Are the provisions of N.Y. C.P.L.R. section 214-c(4) providing for an extension of the statute of limitations in certain circumstances limited to actions for injuries caused by the latent effects of exposure to a substance? 2) Can an injury that occurs within 24 to 48 hours of exposure to a substance be considered "latent" for these purposes? 3) What standards should be applied to determine whether a genuine issue of material fact exists for resolution by a trier of fact as to whether "technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff's] injury" was "discovered, identified or determined" for N.Y. C.P.L.R. section 214-c(4) purposes?

[03/15] D.C. v. R.R.
In a suit brought by a 15-year-old high student and his parents against other students and their parents, raising a statutory claim under California's hate crime laws and common law claims for defamation and intentional infliction of emotional distress, trial court's denial of a defendant's anti-SLAPP motion is affirmed as defendant failed to demonstrate that his posted message on plaintiff's website is protected speech and that it was made in connection with a public issue.

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Legal Malpractice

[03/11] Freedman v. Brutzkus
In plaintiff's action for fraud against defendants, trial court's dismissal of the action following the sustaining of defendants' demurrer is affirmed as a signature of an attorney under the legend "approved as to form and content" on a contract does not amount to an actionable representation to an opposing party's attorney that can provide a basis for tort liability.

[03/04] Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[03/03] Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".

[03/02] Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.

[02/26] Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.

[02/26] Deen v. Egleston
In a medical malpractice action, the denial of partial summary judgment for defendant is reversed where the district court, in striking down, under the Equal Protection Clause, a state statute that did not exempt the "legally incompetent" from the general two-year statute of limitations, overlooked the essential principle that matters of social and economic policy, particularly when they came to bear on the health and welfare of a state's citizens, were quintessentially legislative in nature.

[02/18] Medical Protective Co. v. Bubenik
In an action by an insurer seeking a declaration that it had no duty to pay a malpractice judgment, summary judgment for plaintiff is affirmed where the district court did not err in concluding that the malpractice defendant materially breached the cooperation clause in his insurance policy.

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Professional Malpractice

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Sanctions

[02/24] Garcia-Perez v. Hosp. Metropolitano
Dismissal of the case by the district court, acting sua sponte, for lack of prosecution based on plaintiffs' non-compliance with discovery deadlines is vacated and remanded where the absence of a clearly communicated deadline for providing expert reports, or notice that failing to do so more promptly could result in dismissal, rendered that drastic sanction an abuse of discretion.

[02/24] In Re: Grand Jury Subpoena (T-112)
District court's decision holding twelve corporations, interrelated for-profit and not-for-profit corporations suspected of participating in the financing of terrorist activity, in contempt for refusing to turn over documents demanded by grand jury subpoena duces tecum is affirmed where: 1) a grand jury enforcement action is not the appropriate place to litigate the validity of one corporations claims of illegal wiretapping; and 2) the other eleven corporations' claim that the district court abused its discretion by finding them in contempt because the order was ambiguous, and that they did not know they were violating a valid decree when they failed to comply, does not square with the facts of the record.

[02/05] In re Koehler
In an attorney's petition for a writ challenging a trial court's order of contempt on attorney arising from divorce proceedings, attorney's petition is treated as one for prohibition and granted, and the order of contempt is reversed and annulled as the requisite procedures were not followed and the applicable law was not applied.

[02/05] ResQNet.com, Inc. v. Lansa, Inc.
In a patent infringement action involving a technology relating to screen recognition and terminal emulation processes that download a screen of information from a remote mainframe computer onto a local personal computer, the decision of the district court is affirmed in part, reversed in part, vacated and remanded where: 1) district court's judgment that plaintiff's patent is valid and is infringed by defendant is affirmed; 2) district court's ruling that another of plaintiff's patents is not infringed is affirmed; 3) district court's imposition of sanctions under Rule 11 against plaintiff and its counsel is reversed; and 4) district court's award of damages of $506,305 for past infringement based on a hypothetical royalty of 12.5%, plus prejudgment interest is vacated and remanded for redetermination of damages.

[11/16] Minna v. Energy Coal S.p.A
In an action for breach of fiduciary duty against corporate officers, the chancery court's entry of default judgment against defendants is affirmed where defendants repeatedly and willfully failed to comply with discovery orders.

[10/23] Unifund CCR Partners v. Villa
In plaintiff's case against defendant-debtor for purchase of a credit card debt that was discharged in bankruptcy proceedings, trial court's dismissal of the suit is reversed as the trial court abused its discretion in assessing sanctions against plaintiff as there was no evidence to support the findings underlying the sanctions.

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Sentencing

[03/18] US v. Pena
District court's denial of defendant's request for application of the "safety valve" sentencing provision in U.S.S.G. section 5C1.2, which permits a two-level reduction for certain defendants who cooperate fully with the government prior to sentencing, is affirmed as the defendant admittedly did not give prosecutors all the information he had about the drug-trafficking offense for which he was convicted, and there is no exception to the sentencing guidelines that defendant could not fully cooperate due to fear of retaliation.

[03/17] US v. DePierre
Conviction of defendant for selling cocaine powder and cocaine base to a government informant on two occasions is affirmed where: 1) the district court did not err in its jury instruction regarding the wrongful inducement; 2) there was no wrongful manipulation in the case; and 3) the district court's instructions and the jury verdict accorded with the precedent, and the mandatory minimum sentence was properly imposed.

[03/17] US v. Ray
In proceedings involving defendant's motion for a lower sentence for his crack cocaine possession, district court's denial on the ground that defendant's 263-month sentence was not based on the Guidelines and that, as a result, defendant could not bring the motion is affirmed as, in the absence of explicit language in the agreement to the contrary, a sentence imposed pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement cannot be said to be "based on" the Sentencing Guidelines. An agreement must clearly reflect an intent that the sentence be modified when the Guidelines shift, and here, defendant's plea agreement did not reflect such an intent.

[03/17] US v. Panice
District court's imposition of a 360 months' sentence on a defendant convicted of various fraudulent schemes is vacated and remanded for resentencing as the sentencing record leaves too much doubt about whether the judge impermissibly started with the presumption that a within-Guidelines sentence is reasonable and whether he completed adequate consideration of all the relevant section 3553(a) factors.

[03/17] US v. Corner
Defendant's sentence of 188 months' imprisonment as a career offender for his conviction for possessing more than five grams of cocaine base is vacated and remanded as Welton is overruled to the extent it holds that section 4B1.1 differs from other Guidelines. Per Kimbrough and Spears, district judges are at liberty to reject any Guideline on policy grounds - though they must act reasonably when using that power.

[03/17] US v. Llamas
In a conviction of defendant for multiple offenses arising from his role in a fraudulent sweepstakes scheme, as well as a sentence to 132 months' imprisonment and restitution order exceeding $4.2 million, are affirmed in part, vacated in part, and remanded where: 1) district court's application of the vulnerable victim adjustment was not procedurally unreasonable; 2) district court did not clearly err in relying on a certain evidence to find that defendant was a supervisor of the center's employees; and 3) district court abused its discretion with respect to the restitution order as it was not limited to losses attributable to the center.

[03/17] US v. Caro
Conviction of defendant for first degree murder of an inmate and sentence to death under the Federal Death Penalty Act is affirmed and defendant's various challenges rejected where: 1) while several possible errors are recognized, they were not widespread or prejudicial enough to have fatally infected defendant's trial or sentencing hearing; 2) the proceeding adhered to fundamental fairness; 3) each aggravating factor determined by the jury was well supported by the record; and 4) cumulative error could not have caused the jury to weigh the sentencing factors any differently.

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Workers' Comp

[03/05] Rhine v. Stevedoring Servs. of Am.
In a petition for review of a decision of the Benefits Review Board under 33 U.S.C. section 921(c) of the Longshore and Harbor Workers' Compensation Act, the petition is denied where: 1) a reasonable mind could have concluded that the Pacific Maritime Association Average adequately represented petitioner's annual earning capacity; and 2) the availability of alternative employment was determined by reference to two criteria: the claimant's physical abilities and the economic availability of particular jobs in the market.

[03/03] City of Laguna Beach v. California Ins. Guarantee Ass'n
In a city's action against an insurance company seeking reimbursement for incurring workers' compensation liability that exceeded its self-insured retention, grant of insurance company's motion for summary judgment is affirmed where: 1) the addition of subdivision (c)(13) to Ins. Code section 1063.1 did not abrogate Denny's Inc. v. Workers' Comp. Appeals Bd., 104 Cal.App.4th 1433 (2003); 2) the trial court properly invoked the Denny's rule when it granted summary judgment and concluded that the city cannot obtain reimbursement from defendant under section 1063.1(c)(13) as, although this provision renders the obligation of an insolvent excess workers' compensation insurer a "covered claim" that defendant must ordinarily reimburse, defendant need not reimburse a permissibly self-insured employer for benefits paid to an employee for cumulative injury if the employer's liability is based in part on a period of time when the employer was self-insured and chose not to buy excess insurance for the particular risk.

[02/26] Lara v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board's decision against the petitioner and in favor of the defendant is affirmed as, the petitioner, hired twice in the space of 12 months to prune bushes for a diner, was not an employee of the diner at the time he sustained injury, but rather, he was an independent contractor exempt from workers' compensation coverage.

[02/26] Elliott v. Workers' Comp. Appeals Bd.
Decision of the WCAB that plaintiff's employer was not obligated to provide the requested spinal surgery is reversed and remanded as, in light of its en banc decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336 explicitly denouncing the Brasher holding relied on by the WCAB in this case, the employer is ordered to authorize the requested surgery or object to the treating physician's recommendation under 4062(b) within 10 days of receipt of this order, thereby commencing the spinal surgery second opinion process.

[02/12] Conley v. Nat'l Mines Corp.
Order of the Benefits Review Board reversing an Administrative Law Judge's award of black lung benefits on a widow's claim filed by petitioner under the Black Lung Benefits Act after her husband died of metastatic lung cancer is affirmed as the Board did not err in concluding that the decedent's treating physician's opinion was insufficient to carry the widow's burden of proof, based on the standard previously articulated in Eastover Mining Co. v. Williams, 338 F.3d 501 (6th Cir. 2003).

[01/29] Firemans' Fund Ins. Co. v. Workers' Comp. Appeals Bd.
An order of the Workers' Compensation Appeals Board (WCAB) denying Fireman's Fund Insurance Company's petition for reconsideration regarding a stipulation entered into by plaintiff and the California Insurance Guarantee Association in 2001 is annulled and the matter is remanded where: 1) CIGA's stipulations and a subsequently entered order on the stipulations were not a nullity and void; and 2) the WCAB improperly exercised its discretion under the Labor Code section 5803 to set aside the order entered on the stipulations on the ground of illegality and public policy.

[10/30] Ins. Co. of the State of Pennsylvania v. Lejeune
In plaintiff's worker's compensation case against his employer's insurance carrier, court of appeals' default judgment against the defendant is reversed and remanded as the clerk's endorsement of the return of citation did not satisfy Rules 16 and 105.

[09/28] Person-Gaines v. Pepco Holdings, Inc.
Decision of the Industrial Board denying claimant's petition for additional work-related injury compensation is affirmed as the record shows the IAB's findings of fact were bases on expert testimony it deemed reliable and those findings - that claimant's petition and the expert testimony failed to establish any additional permanent impairment related to her 1988 work injury - were supported by substantial evidence.

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