Case Summaries

Civil Procedure

[02/02] Lore v. City of Syracuse
In a case alleging illegal retaliation against a city police officer under Title VII and the New York State Human Rights Law (HRL) because of her complaints of gender discrimination, the district court's judgment is: 1) affirmed in part where the city's arguments regarding the availability of reputation damages, evidentiary and instructional errors, and excessive damages for emotional distress presented no basis for disturbing the judgment; and 2) vacated in part where there was merit in plaintiff's contentions regarding the liability of the city's corporation counsel, and the district court erred in dismissing her principal gender discrimination claims under the HRL on the basis that she had suffered no materially adverse employment action.

[02/02] Gentry v. Siegel
In bankruptcy proceedings in which former employees of the debtor filed claims for unpaid overtime wages, the district court's judgment affirming the bankruptcy court's denial of a Rule 9014 motion and its refusal to allow the claimants to pursue class actions is affirmed, where: 1) the bankruptcy court was within its discretion to rule that the bankruptcy process would provide a process superior to the class action process for resolving the claims of former employees; 2) notice of the bankruptcy process to the named claimants was not constitutionally deficient; and 3) with respect to unnamed claimants, the named claimants lacked standing to challenge the notice.

[02/02] Marcavage v. National Park Service
In an action by an abortion protester under 42 USC Section 1983 against the National Park Service, the United States Department of the Interior, and two Park Service rangers, alleging violations of the plaintiff's rights under the First Amendment, the Fourth Amendment, and the Equal Protection Clause based on his arrest, the district court's grant of a motion to dismiss for failure to state claim is affirmed, where: 1) the rangers were entitled to qualified immunity from the First and Fourth Amendment claims; 2) the plaintiff's "class of one" theory of an equal protection violation failed because he was not in all relevant respects like the others who shared the sidewalk on which he was arrested; and 3) the plaintiff's claims for declaratory and injunctive relief were properly dismissed as moot because of a change in Park Service regulations.

[02/02] Lewow v. Surfside III Condominium Owners' Ass'n, Inc.
In a case in which judgment was entered in favor of a condominium association on a complaint for failure to perform its duties, against a plaintiff who subsequently filed for Chapter 13 bankruptcy, the trial court's award of attorney's fees to the association is affirmed, where: 1) although the motion for fees was not timely filed, there was good cause for the delay, as it was understandable that the association was mistaken on the complex and debatable issue of whether the bankruptcy stay tolled the limitations period; and 2) although the trial court's articulated rationale for granting the fees was erroneous, its acceptance of the association's tolling argument was tantamount to a finding of good cause based on mistake.

[02/02] Eiskamp v. Pajaro Valley Water Management Agency
In a suit against a water management agency for declaratory relief and a writ of mandate to challenge increased groundwater augmentation charges for the operators of wells in the agency's jurisdiction, the trial court's judgment in favor of the agency on demurrer is affirmed, where a stipulated agreement in other litigation resolved the plaintiff's issue in favor of the agency, so that the present action was barred by the doctrine of res judicata.

[02/01] Maxton v. Western States Metals
In a suit alleging negligence and strict liability causes of action based on personal injuries as a result of working with metal products manufactured by the defendants and supplied to the plaintiff's employer, the district court's judgment in favor of the defendants on demurrers is affirmed, where: 1) the metal products involved were not inherently dangerous, and no other circumstances justified imposing liability on the defendants for the plaintiff's injuries under the component parts doctrine; 2) the plaintiff did not meet his burden of showing there was a reasonable possibility that the deficiencies in the complaint could be cured by amendment.

[02/01] Muto v. CBS Corp.
In a putative class action complaint brought in New York by Pennsylvania residents against the plaintiffs' former employer and the employer's pension plan for benefits alleged to be due under ERISA, the district court's dismissal of the complaint as time-barred is affirmed, where: 1) the district court was correct in applying New York's borrowing statute directing it to look to Pennsylvania law for the applicable statute of limitations; and 2) plaintiffs' claims were untimely under Pennsylvania law.

[02/01] GECCMC 2005-C1 Plummer Street Office L.P. v. JPMorgan Chase Bank, N.A.
In a suit alleging breach of lease agreements that the defendant bank assumed after it purchased a failed bank's assets and liabilities from the FDIC pursuant to the terms of a written purchase and assumption agreement, the district court's grant of the bank's motion to dismiss is affirmed, where under federal common law, the plaintiff lacked standing to bring suit under the agreement because it was not an intended third-party beneficiary of the agreement.

[01/31] Chaaban v. Wet Seal, Inc.
In a wrongful termination suit that the plaintiff lost and after which the defendant filed a memorandum of costs, the trial court's order denying the plaintiff's motion to tax those costs is affirmed, where the costs were properly calculated and awarded in all respects, and Code of Civil Procedure section 998(c) gives the trial court the discretion to award expert fees to the defendant, regardless of whose witness the expert is, if the plaintiff fails to obtain a more favorable judgment or award after rejecting an offer to compromise.

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Civil Rights

[02/02] Southerland v. City of New York
In a suit under 42 USC Section 1983 asserting that a New York City children's services caseworker entered the plaintiffs' home unlawfully and effected an unconstitutional removal of children into state custody, the district court's grant of summary judgment to the defendant caseworker is: 1) affirmed with respect to the dismissal of the father's substantive due process claim; but 2) vacated with respect to the father's and his children's Fourth Amendment unlawful-search and Fourteenth Amendment procedural due process claims and the children's unlawful-seizure claim, where the district court wrongfully concluded that the caseworker was entitled to qualified immunity with respect to all of the claims against him.

[02/02] Lore v. City of Syracuse
In a case alleging illegal retaliation against a city police officer under Title VII and the New York State Human Rights Law (HRL) because of her complaints of gender discrimination, the district court's judgment is: 1) affirmed in part where the city's arguments regarding the availability of reputation damages, evidentiary and instructional errors, and excessive damages for emotional distress presented no basis for disturbing the judgment; and 2) vacated in part where there was merit in plaintiff's contentions regarding the liability of the city's corporation counsel, and the district court erred in dismissing her principal gender discrimination claims under the HRL on the basis that she had suffered no materially adverse employment action.

[02/02] Marcavage v. National Park Service
In an action by an abortion protester under 42 USC Section 1983 against the National Park Service, the United States Department of the Interior, and two Park Service rangers, alleging violations of the plaintiff's rights under the First Amendment, the Fourth Amendment, and the Equal Protection Clause based on his arrest, the district court's grant of a motion to dismiss for failure to state claim is affirmed, where: 1) the rangers were entitled to qualified immunity from the First and Fourth Amendment claims; 2) the plaintiff's "class of one" theory of an equal protection violation failed because he was not in all relevant respects like the others who shared the sidewalk on which he was arrested; and 3) the plaintiff's claims for declaratory and injunctive relief were properly dismissed as moot because of a change in Park Service regulations.

[02/02] Fair Housing Council of San Fernando Valley v. Roommate.com, LLC
In a suit alleging that a roommate-matching service website’s questions requiring disclosure of sex, sexual orientation and familial status, and its sorting, steering and matching of users based on those characteristics, violate the federal Fair Housing Act (FHA) and the California Fair Employment and Housing Act (FEHA), the district court's grant of summary judgment to the plaintiffs, permanent injunction, and order awarding attorney's fees is: 1) vacated in part where plaintiffs had organizational standing; and 2) dismissed in part where the FHA and FEHA do not apply to the sharing of living units because precluding individuals from selecting roommates based on their sex, sexual orientation and familial status raises substantial constitutional concerns, and therefore the defendant's prompting, sorting and publishing of information to facilitate roommate selection is not forbidden by the FHA or FEHA.

[02/01] McBurney v. Young
In a case brought by non-Virginia residents seeking declaratory and injunctive relief under 42 USC section 1983 against Virginia officials because of their failure to provide the plaintiffs with requested public records on the basis that the plaintiffs were not Virginia residents, grant of summary judgment to the defendants is affirmed, where: 1) the plaintiffs' claim that the Virginia Freedom of Information Act violates the Privileges and Immunities Clause of the federal constitution could not succeed as a matter of law; 2) the district court did not err in rejecting a dormant Commerce Clause claim.

[01/27] AE v. County of Tulare
In a suit arising from the sexual assault of a minor by his foster brother, alleging against the county that ran the foster home a claim under 42 USC section 1983 for deliberate indifference and claims for negligence pursuant to California statutes, the district court's dismissal of all claims against the county is reversed, where: 1) the district court abused its discretion when it denied leave to amend the complaint to cure defects in the section 1983 claim; 2) the district court abused its discretion by dismissing the derivative liability claims against the county with prejudice and without leave to amend when it granted leave to amend as to the allegations regarding defendant county social workers.

[01/26] Munoz v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico
In a retaliation case under the Age Discrimination in Employment Act of 1967 (ADEA) and Puerto Rico's general tort statute known as Article 1802, in which the jury found for the plaintiff, the district court's denial of the defendant's motion for judgment as a matter of law and motion for a new trial is affirmed, where: 1) the evidence presented at trial was enough to support the jury's finding of retaliation; 2) the appellants waived defenses based on the statute of limitations, the exclusive remedies bar, and a purportedly erroneous jury instruction; 3) the evidence was sufficient for a reasonable jury to find the requisite fault or negligence to sustain an Article 1802 claim; and 4) the awards of damages and attorney fees were proper.

[01/26] Kenney v. Head
In a case under 42 USC section 1983 alleging that the events surrounding the plaintiff's arrest constituted a deprivation of his constitutional rights, the district court's denial of the plaintiff's motion for a new trial is affirmed, where there was no error in the district court's evidentiary ruling excluding certain alleged statements offered to show the motive for the arrest.

[01/26] EEOC v. Great Steaks, Inc.
On a defendant's motion for attorney's fees after it had prevailed on a Title VII claim by the EEOC alleging sexual harassment of an employee, the district court's denial of the motion is affirmed, where the district court did not abuse its discretion in: 1) finding that the EEOC's case was not frivolous, unreasonable, or groundless, and thus denying fees under Title VII's fee-shifting provision; 2) declining to award attorney's fees under EAJA, as EAJA's mandatory fee provision did not apply, given the availability of fees under Title VII; and 3) denying the motion for attorneys' fees and costs under 28 USC section 1927.

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Consumer Protection

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Dispute Resolution & Arbitration

[02/03] Scandinavian Reinsurance Co. Ltd. v. Saint Paul Fire and Marine Insurance Co.
The district court's grant of a petition to vacate an arbitral award is reversed, and on remand the district court is instructed to grant a cross-petition to confirm the award, where there was insufficient evidence before the district court on which to base a finding of "evident partiality" within the meaning of the Federal Arbitration Act despite the failure of two arbitrators to disclose their concurrent service as arbitrators in another, arguably similar, arbitration.

[02/03] Biller v. Toyota Motor Corp.
In a dispute over the violation of an employment severance agreement, the district court's confirmation of an arbitration award is affirmed, where: 1) the severance agreement called for arbitration under the Federal Arbitration Act; 2) the district court did not err by not conducting a merits review of the award; and 3) the arbitrator did not manifestly disregard the law governing the severance agreement. Denial of the appellant's motion for contempt is also affirmed, where under the plain terms of a permanent injunction issued by the court, the employer was entitled to delete documents from the appellant's computer.

[02/03] Sauer v. Dep't of Education
In a suit by a California state agency seeking review of an arbitration award that made it liable to a blind vendor for failing to sue the federal General Services Administration (GSA) to vindicate the rights of the vendor to conduct business on federal property, the district court's judgment affirming the award is reversed, where: 1) the arbitration panel committed a legal error when it interpreted the Randolph-Sheppard Vending Stand Act as requiring the state agency to bring an action against GSA, and that the agency's failure to do so made it liable for compensatory damages; and 2) because the arbitration panel's ruling was not in accordance with law, it had to be set aside under the Administrative Procedure Act.

[02/01] In re American Express Merchants' Litigation
In a class action asserting Sherman Act claims, brought against a charge card issuer whose card acceptance agreement purported to preclude a merchant from bringing a class action lawsuit, the district court's grant of the defendant's motion to compel arbitration and dismissal of the case is reversed, where the cost of plaintiffs' individually arbitrating their dispute with the defendant would be prohibitive, effectively depriving them of the statutory protections of the antitrust laws, and thus the class action waiver in the arbitration provision was unenforceable.

[01/30] Matter of Thorpe Insulation Co.
In Chapter 11 bankruptcy proceedings, the district court's affirmance of the bankruptcy court's orders denying a creditor's motion to compel arbitration and disallowing its claim is affirmed, where: 1) the resolution of the creditor's claim was a core matter in the bankruptcy; 2) the bankruptcy court did not abuse its discretion in denying the creditor's motion to compel arbitration; 3) the bankruptcy court did not abuse its discretion by declining to give the creditor further opportunity for discovery; 4) the creditor's claim was properly disallowed because because the debtor's covenants in a settlement agreement were purported prepetition waivers of the protections of the Bankruptcy Code, which need not be permitted.

[01/20] Khan v. Dell Inc.
On a motion to compel arbitration brought by a defendant computer manufacturer in a case alleging design defects brought as a putative consumer class action by a purchaser, the district court's judgment denying the motion is vacated and the case remanded, where: 1) the arbitration agreement in the purchase contract did not indicate the parties' unambiguous intent not to arbitrate their disputes if the named arbitrator was unavailable; and 2) Section 5 of the Federal Arbitration Act requires a court to address such unavailability by appointing a substitute arbitrator.

[01/11] Peabody Holding Company, LLC v. United Mine Workers of America
In an appeal from a judgment of the district court upholding an arbitrator's determination of arbitrability in a dispute concerning a limited job-preference agreement, judgment is affirmed where the court, not the arbitrator, had jurisdiction to decide whether the dispute is arbitrable because the agreement lacks the requisite clear and unmistakable language evincing an intent to arbitrate arbitrability, and where the appellants failed to rebut the ordinary presumption in favor of arbitrability.

[01/10] CompuCredit Corp. v. Greenwood
In an appeal from the judgment of the appeals court upholding the trial court's denial of petitioner's motion to compel arbitration of respondents' Credit Repair Organizations Act (CROA) action under an arbitration provision, judgment is reversed where, because the CROA is silent on whether such claims can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) requires that the arbitration agreement to be enforced.

[01/03] Wisdom v. AccentCare, Inc.
In an appeal from a judgment of the trial court denying defendants' motion to compel arbitration of plaintiff's employment claims, judgment is affirmed because a provision that requires an prospective employee's assent that, if hired, all disputes that cannot be resolved informally will be submitted to binding arbitration is both procedurally and substantively unenforceable as unconscionable where the language of the provision did not create mutual obligations.

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Ethics & Disciplinary

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Ethics & Professional Responsibility

[01/12] US v. Lopez-Avila
In an appeal from a judgment of the district court denying defendant's motion to dismiss her drug trafficking indictment, judgment is affirmed where a mistrial due to the prosecutor's misconduct in misleading the court during his cross-examination of the defendant does not provide double jeopardy relief to defendant.

[12/22] Blystone v. Horn
In cross-appeals from a judgment of the district court denying defendant habeas relief from his conviction for first-degree murder, but granting him such relief on his death sentence, judgment is affirmed where: 1) trial counsel was ineffective for failing to investigate, develop, or introduce expert mental health testimony and institutional records in mitigation during the sentencing phase, and that the state court's decision to the contrary was unreasonable; and 2) evidence of prosecutorial misconduct during the guilt phase of trial was not "newly discovered" and therefore defendant was not entitled to a Rule 59(e) motion.

[12/13] Kennedy v. Eldridge
In an appeal from an order of the family court granting plaintiff’s motion to disqualifying defense counsel who is also the father of the defendant in a child custody and support action, judgment is reversed where the disqualification was within the court's discretion, the exercise of which was not an abuse.

[12/08] In re Finding of Kinney
After filing a series of unsuccessful, baseless lawsuits relating to real property owned by lawyer in the Silver Lake neighborhood of Los Angeles, the lawyer previously declared to be "vexatious litigant" is prohibited from filing new litigation either in his own name or in the name of a proxy without first obtaining leave of the presiding judge.

[12/06] People v. Witcraft
Conviction and sentencing of defendant for causing a false or fraudulent insurance claim to be filed, Pen. Code section 550(a)(1), are upheld with an order to show cause why defendant is not entitled to habeas relief due to ineffective assistance of counsel, where counsel failed to renew a motion to dismiss after the preliminary hearing on the charge.

[12/02] In the Matter of Thomas Liotti
Respondent-attorney is publicly admonished for factual misrepresentations where misrepresentations were intentional and worthy of discipline, even though instant misconduct appears as an isolated event, and it is inconsistent with his otherwise fine career.

[12/01] Cornell v. Kirkpatrick
In an appeal from a judgment of the district court denying plaintiff's petition for habeas relief from his conviction for rape, judgment is reversed where: 1) trial counsel's failure to object to venue resulted in defendant receiving ineffective assistance of counsel; and 2) the state court unreasonably applied clearly established federal law.

[11/22] In re Fengling Liu
Upon the recommendation of the Court’s Committee on Attorney Admissions and Grievances, Attorney Fengling Liu is publicly reprimanded for negligence and gross negligence in the practice of law before the Court.

[11/21] Flagler v. Trainor
In an appeal from a judgment of the district court dismissing plaintiff's civil complaint for various prosecutorial misconduct, judgment is affirmed where the court correctly found that defendant-prosecutor was absolutely immune from liability for making alleged false statements in support of a material witness order and warrant, but reversed and vacated where the court failed to determine, in the first instance, whether immunity extends to defendant's decision to "preserve" evidence after the underlying criminal prosecution was over, and because absolute immunity does not shield a prosecutor from: 1) making defamatory statements to the press; 2) accessing a person’s voicemail without consent; or 3) persuading a party to a conversation to record its contents.

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Injury & Tort Law

[02/03] Pennsylvania National Mutual Casualty Insurance Co. v. Roberts
In a suit brought by an insurer seeking a declaratory judgment that it was required to indemnify its insured for no more than 40 percent of a state court judgment because it had covered its insured for no more than 40 percent of the time in which the state court plaintiff was exposed to lead poisoning, the district court's judgment is: 1) affirmed in part, where it was correct in allocating the insurer's liability using the pro-rata time on-the-risk, and its decision to use the plaintiff's date of birth as the starting point for the period in which she was exposed to lead poisoning was sound; and 2) reversed in part, where the district court erred in holding the insurer liable for 24 months of coverage rather than 22, since under the insurance contract, coverage ended when the property was sold.

[02/02] Lore v. City of Syracuse
In a case alleging illegal retaliation against a city police officer under Title VII and the New York State Human Rights Law (HRL) because of her complaints of gender discrimination, the district court's judgment is: 1) affirmed in part where the city's arguments regarding the availability of reputation damages, evidentiary and instructional errors, and excessive damages for emotional distress presented no basis for disturbing the judgment; and 2) vacated in part where there was merit in plaintiff's contentions regarding the liability of the city's corporation counsel, and the district court erred in dismissing her principal gender discrimination claims under the HRL on the basis that she had suffered no materially adverse employment action.

[02/01] Maxton v. Western States Metals
In a suit alleging negligence and strict liability causes of action based on personal injuries as a result of working with metal products manufactured by the defendants and supplied to the plaintiff's employer, the district court's judgment in favor of the defendants on demurrers is affirmed, where: 1) the metal products involved were not inherently dangerous, and no other circumstances justified imposing liability on the defendants for the plaintiff's injuries under the component parts doctrine; 2) the plaintiff did not meet his burden of showing there was a reasonable possibility that the deficiencies in the complaint could be cured by amendment.

[01/30] Sennett v. US
In a suit by a photojournalist seeking money damages against the federal government for FBI agents' alleged violations of the Privacy Protection Act (PPA) stemming from a search of her apartment, the district court’s order granting summary judgment to the United States is affirmed, where: 1) the facts as alleged showed that the officers had probable cause to believe that the plaintiff was involved in criminal activity; and 2) the search of her home related to the investigation of that activity, so that the "suspect exception" to the PPA applied.

[01/27] AE v. County of Tulare
In a suit arising from the sexual assault of a minor by his foster brother, alleging against the county that ran the foster home a claim under 42 USC section 1983 for deliberate indifference and claims for negligence pursuant to California statutes, the district court's dismissal of all claims against the county is reversed, where: 1) the district court abused its discretion when it denied leave to amend the complaint to cure defects in the section 1983 claim; 2) the district court abused its discretion by dismissing the derivative liability claims against the county with prejudice and without leave to amend when it granted leave to amend as to the allegations regarding defendant county social workers.

[01/27] C9 Ventures v. SVC-West, L.P.
In a personal injury suit in which a lessor of helium-filled tanks used to inflate festive balloons cross-complained against the lessee to enforce an indemnification provision on the back of an unsigned invoice, the trial court's judgment in favor of the lessor and award of attorney fees to it is reversed, where: 1) the lessee did not manifest assent to the terms on the back of the unsigned invoice by course of dealing or course of performance, or under basic contract law; 2) the lessee did not sign the invoice or otherwise expressly agree to its terms; 3) an unsigned invoice itself is not a contract, and repeated delivery of a particular form does not make the form part of the parties' agreement; 4) payment of the invoice merely constituted the lessee's performance of the obligation under the oral contract to pay for the rental of the helium-filled tanks; and 5) assuming the transaction was a sale of goods covered by division 2 of the California Commercial Code, the indemnification provision was not an additional term of the contract under section 2207 of the Commercial Code.

[01/26] Munoz v. Sociedad Espanola de Auxilio Mutuo y Beneficiencia de Puerto Rico
In a retaliation case under the Age Discrimination in Employment Act of 1967 (ADEA) and Puerto Rico's general tort statute known as Article 1802, in which the jury found for the plaintiff, the district court's denial of the defendant's motion for judgment as a matter of law and motion for a new trial is affirmed, where: 1) the evidence presented at trial was enough to support the jury's finding of retaliation; 2) the appellants waived defenses based on the statute of limitations, the exclusive remedies bar, and a purportedly erroneous jury instruction; 3) the evidence was sufficient for a reasonable jury to find the requisite fault or negligence to sustain an Article 1802 claim; and 4) the awards of damages and attorney fees were proper.

[01/26] Allstate Property and Casualty Ins. Co. v. Squires
In an action by an insurance company seeking a declaratory judgment that it was not obligated to pay uninsured motorist benefits to a policyholder, the district court's order granting the insurer's motion for judgment on the pleadings and dismissing counterclaims is reversed, where in light of the insurer's concession for purposes of its motion that the accident giving rise to the claim was caused by a box dropped from an unidentified vehicle, the accident arose out of the maintenance, ownership, or use of an uninsured vehicle, so that it was covered under the insurance policy.

[01/26] Tverberg v. Fillner Construction, Inc.
In a suit brought by a husband and wife based on injuries sustained after the husband, an independent contractor, was injured on a worksite on which the defendant was operating as the general contractor, judgment against the plaintiffs is reversed, where: 1) the trial court properly granted the defendant's motion for summary judgment on a breach of regulatory duty theory of recovery, as the defendant delegated its obligation to comply with Cal-OSHA workplace regulations to the plaintiff; but 2) the trial court erred in granting the defendant's motion for summary judgment on the plaintiffs' retained control theory of direct liability, since the plaintiffs offered sufficient evidence of a triable issue on affirmative contribution.

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Legal Malpractice

[05/05] In Re: Teligent, Incorporated
In a dispute arising from an action for legal malpractice, judgment of the district court denying motion to lift bankruptcy protective orders and cross-motion for injunctive relief barring defendant from attacking the validity of a settlement agreement on the grounds of waiver is affirmed where: 1) defendant-law firm failed to make the requisite showing to lift orders; and 2) it was not a party in interest with standing such that its failure to contest the validity of settlement agreement constituted waiver.

[04/19] Callahan v. Gibson, Dunn and Crutcher
In a dispute alleging professional malpractice arising from the drafting of a deficient partnership agreement by the defendant, summary judgment on the ground that action was time-barred is reversed because placement of actual injury upon the execution of the defective agreement was erroneous where CCP section 340.6 (a)(1), tolled the limitations period until plaintiff could establish a cause of action for legal malpractice.

[04/13] Knopick v. Connelly
In a dispute arising from a legal malpractice claim and the timeliness of underlying tort action, summary judgment in favor of defendant on the ground that action was time-barred is reversed where district court failed to apply the discovery rule to underlying claim, and there was a genuine issue of fact prohibiting summary dismissal.

[03/04] Augusta v. Keehn and Associates
In a civil action alleging legal malpractice, order denying petition by plaintiff to compel arbitration of action is affirmed, as it is supported by substantial evidence.

[01/13] Cassel v. Superior Court
In plaintiff's malpractice action against his attorneys, claiming that by bad advice, deception, and coercion, the attorneys, who has a conflict of interest, induced him to settle for a lower amount than he had told them he would accept in the underlying action, the court of appeals' judgment vacating the trial court's grant of defendant attorneys motion to exclude all evidence of private attorney-client discussions immediately preceding, and during, the mediation concerning mediation settlement strategies and defendants' efforts to persuade plaintiff to reach a settlement in the mediation, is reversed where: 1) the result reached by the court of appeals contravenes the Legislature's explicit command that, unless the confidentiality of a particular communicative is expressly waived, under statutory procedures, by all mediation "participants," or at least by all those "participants" by or for whom it was prepared, things said or written for the purpose of and pursuant to a mediation shall be inadmissible in any civil action; 2) as the statutes make clear, confidentiality, unless waived, extends beyond utterances or writings in the course of a mediation, and thus is not confined to communications that occur between mediation disputants during the mediation proceeding itself, and by holding otherwise, and overturning the trial court's exclusionary order, the court of appeal erred.

[01/11] Warrior Sports, Inc. v. Dickinson Wright, P.L.L.C.
In a patent owner's malpractice action against a law firm, arising from an underlying patent infringement litigation involving patents directed to lacrosse sticks and heads, district court's dismissal of the suit for lack of jurisdiction is vacated and remanded as, because at least one of plaintiff's malpractice claims requires the court to resolve a substantive issue of patent law, 28 U.S.C. section 1338, which grants district courts exclusive jurisdiction over cases arising under a statute relating to patents, invests the district court with subject matter jurisdiction over the plaintiff's claims in this case.

[12/08] Hall v. Kalfayan
In plaintiff's suit for legal malpractice, claiming that the attorney's failure to timely perform his duties had deprived him of the majority of a testator's estate, trial court's grant of the attorney's motion for summary judgment on the ground that the attorney owed no duty to plaintiff, who was not his client and not the beneficiary of an executed estate plan, is affirmed as a prospective beneficiary of a will cannot maintain a cause of action for legal malpractice against the attorney who drafted the will but did not have it executed before the death of the testator.

[11/30] Dang v. Smith
In plaintiff's legal malpractice action against her former attorneys and their firm, who had represented plaintiff in obtaining and attempting to collect a judgment against two men who purchased a bakery business from her and then defaulted, claiming that defendants failed to record a judgment lien against real property in which one of the judgment debtors held an interest as joint tenant, trial court's grant of defendants' motion for summary judgment is affirmed as plaintiff made no attempt to demonstrate, by proposed pleading, declarations, or otherwise, that she could truthfully plead, let alone prove, the elements of a cause of action on any of her new three theories. Further, because plaintiff at no time moved, or even asked the court, for leave to amend her complaint, plaintiff's argument that the trial court erred by failing to grant leave to amend is rejected not only because it is procedurally insupportable, but because none of the proposed new theories appears to be substantively viable.

[08/26] Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.

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Professional Malpractice

[12/08] Creekmore v. Maryview Hospital
Medical malpractice judgment is affirmed where the plaintiff's expert witness is found to be qualified to testify as to the standard of care under state law because he performs the same procedure in the same context at issue.

[11/15] Khodayari v. Mashburn
In an appeal from a judgment of the district court dismissing appellant's tort complaint against his former counsel in postconviction proceedings, judgment is affirmed where the complaints sounds in legal malpractice such that appellant's failure to show actual innocence of the concerned probation violations and to obtain post-violation exoneration of those violations support the trial court's dismissal.

[10/20] Simon v. Usher
In an appeal from a judgment of the appellate division reversing the trial court's grant of defendant's motion to change venue in a medical malpractice action, judgment is reversed where the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) when a defendant serves its demand for change of venue by mail.

[10/18] Smith v. Cimmet
In an appeal from a judgment of the trial court dismissing a legal malpractice action brought by a successive estate representative on the ground that the representative lacked standing because he was never a client of the defendant-attorneys, judgment is reversed where: 1) an Oregon representative lacks capacity to sue in California because his authority does not extend beyond Oregon but may seek relief through an ancillary appointment by the California courts; and 2) under both California and Oregon statutory law, plaintiff has standing to sue attorneys who were retained by his predecessor to act on the estate's behalf.

[10/04] Liggon-Redding v. Estate of Sugarman
In a suit by pro se plaintiff alleging that defendant committed legal malpractice while representing her in a medical malpractice case in state court by failing to retain an expert, the District Court's dismissal of the complaint is reversed where: 1) Pennsylvania Rule of Civil Procedure 1042.3, requiring the filing of a Certificate of Merit in malpractice cases, is substantive law that federal courts must apply under Erie v. Tompkins, 304 U.S. 64 (1938); and 2) appellant did comply with this substantive law.

[09/22] Shugart v. Regents of U.C.
In an appeal from a judgment of the trial court granting summary adjudication in favor of the defendants in an action for medical negligence, judgment is affirmed where trial court correctly entered judgment in favor of the Regents because plaintiffs failed to raise a triable issue of fact as to the claims against these defendants, but reversed with respect to defendant-doctor because plaintiffs' expert declaration was admissible and raised triable issues as to defendant's alleged medical negligence.

[06/02] Collins v. Sutter Memorial Hospital
In an action for medical malpractice, judgment of the trial court granting plaintiff a new trial after vacating a defense summary judgment is affirmed, where order was timely under Code of Civil Procedure section 660 and based on proper grounds.

[05/26] Simke, Chodos, Silberfeld and Anteau, Inc. v. Athans
In a dispute arising from an action for breach of a contingency fee agreement, judgment of the trial court awarding attorney fees after entry of a default judgment for discovery violations is affirmed because a complaint does not have to specify, by dollar amount, the attorney fees that will be incurred and sought in a case ultimately resolved by a default judgment entered as a discovery sanction.

[05/05] In Re: Teligent, Incorporated
In a dispute arising from an action for legal malpractice, judgment of the district court denying motion to lift bankruptcy protective orders and cross-motion for injunctive relief barring defendant from attacking the validity of a settlement agreement on the grounds of waiver is affirmed where: 1) defendant-law firm failed to make the requisite showing to lift orders; and 2) it was not a party in interest with standing such that its failure to contest the validity of settlement agreement constituted waiver.

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Sanctions

[02/03] Biller v. Toyota Motor Corp.
In a dispute over the violation of an employment severance agreement, the district court's confirmation of an arbitration award is affirmed, where: 1) the severance agreement called for arbitration under the Federal Arbitration Act; 2) the district court did not err by not conducting a merits review of the award; and 3) the arbitrator did not manifestly disregard the law governing the severance agreement. Denial of the appellant's motion for contempt is also affirmed, where under the plain terms of a permanent injunction issued by the court, the employer was entitled to delete documents from the appellant's computer.

[02/02] Gallop v. Cheney
On an order to show cause why an attorney should not be separately sanctioned for his self-proclaimed lead role in drafting a frivolous and vexatious motion to disqualify a Second Circuit panel from considering his client's petition for panel rehearing of a case alleging that the defendants, former senior government officials, caused the September 11, 2001 attacks against the United States: 1) sanctions are imposed on the attorney pursuant to 28 USC section 1927, Federal Rule of Appellate Procedure 38, and the inherent power of the court; and 2) sanctions imposed on local co-counsel are vacated, based on his colleague's insistence that co-counsel served a peripheral and subordinate role in the appeal.

[02/02] Marriage of Wahl
On appeal from an order requiring an ex-wife to pay to her former husband $552,153.28 in attorney's fees and costs as a sanction because of her conduct with respect to two post-dissolution orders, the order is affirmed, where the record disclosed no abuse of discretion in the trial court's award, and additional sanctions are imposed against the appellant and her appellate attorneys on a finding that the appeal is frivolous.

[01/24] TIFD III-E, Inc. v. US
In a suit by a taxpayer partner challenging IRS notices of adjustment reallocating a large percentage of the partnership's income for the years 1993 to 1998 to the taxpayer away from two Dutch banks that had purchased an interest in the partnership, and imposing a penalty for underpayment, the district court's judgment in favor of the taxpayer is reversed, where: 1) the banks' interest was not a capital interest for purposes of qualifying them as partners within the meaning of IRC section 704(e)(1); and 2) the taxpayer failed to point to substantial authority supporting its position, so that the government was entitled to impose a penalty on the taxpayer for substantial understatement of income.

[01/20] Davis v. US
In consolidated suits under the Federal Tort Claims Act brought by families of murder victims, seeking to impose liability on the United States for the actions of FBI agents for protecting gang members who were also FBI informants, the judgments of the district court are affirmed save as to sanctions, where: 1) the FBI agent's actions were the but-for and proximate cause of the victims' deaths; 2) loss of consortium is "other damage to the person" under Massachusetts statute; 3) the amount awarded for pain and suffering could not be said to be so low as to represent an abuse of discretion; 4) the government's assertion of a comparative negligence defense was not in itself improper, but might have been made with the intent to harass, so that remand was required.

[01/05] Marriage of Sorge
In an appeal from a judgment of the trial court modifying a child support award and imposing sanctions with an award of attorney's fees, judgment is reversed where the fiduciary duty to disclose material changes in income ends upon entry of a divorce decree, but affirmed otherwise.

[01/04] Bull v. United Parcel Service, Inc.
In an appeal from a judgment of the district court dismissing plaintiff's state-law employment discrimination case, judgment is reversed where the court abused its discretion by dismissing complaint as a sanction for plaintiff's failure to produce originals of medical notes requested by the defendant.

[12/08] In re Finding of Kinney
After filing a series of unsuccessful, baseless lawsuits relating to real property owned by lawyer in the Silver Lake neighborhood of Los Angeles, the lawyer previously declared to be "vexatious litigant" is prohibited from filing new litigation either in his own name or in the name of a proxy without first obtaining leave of the presiding judge.

[12/07] Imports Performance v. Dept. Consumer Affairs
In an appeal from a judgment of the trial court denying petitioners' application to vacate an order revoking their smog technician licenses and imposing fines based on smog test violations, judgment is affirmed where: 1) respondent used the right standard of proof; 2) sufficient evidence supports respondent's findings; and 3) the imposition of a $35,366.40 fine in costs was not excessive.

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Sentencing

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Workers' Comp

[01/11] Pacific Operators Offshore, LLP v. Valladolid
In an appeal from a judgment of the appeals court vacating an administrative dismissal of respondent's Outer Continental Shelf Lands Act (OCSLA) claim for benefits as a surviving spouse, judgment is affirmed where a claimant seeking benefits under the OCSLA must establish a substantial nexus between the injury and extractive operations on the shelf.

[12/13] In the Matter of Elrac, Inc. v. Exum
In an appeal from a judgment of the appellate division permitting arbitration of a claim by plaintiff-employee for uninsured motorist benefits, judgment is affirmed because a self-insured employer whose employee is involved in an automobile accident may be liable to that employee for uninsured motorist benefits, notwithstanding the exclusivity provision of the Workers' Compensation Law.

[10/31] County of Kern v. Workers' Comp. Appeals Bd
In an appeal from a judgment of the trial court affirming an administrative decision in a claim for worker's compensation, judgment is affirmed where a volunteer firefighter with a local nonprofit firefighting organization was a county employee for purposes of workers' compensation coverage under Labor Code section 3361.1.

[09/13] Motheral v. Workers' Compensation Appeals Board
In a petition for review of a judgment of the defendant-Board denying reconsideration of an administrative decision calculating petitioner's disability benefits based solely on his full-time employment at minimum wage, Lab. Code section 4653, judgment is reversed where section 4454 mandates the inclusion of the market value of petitioner's living quarters, utilities, and car allowance.

[08/11] Baker v. Workers' Compensation Appeals Bd.
In dispute involving the proper calculation of cost of living adjustments under Labor Code section 4659(c), judgment of the appeals court is reversed where through the operative language of Section 4659(c), the Legislature intended that such adjustments be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments.

[04/20] Edward Carey Const. v. State Comp. Ins. Fund
In an action for breach of contract and the implied covenant of good faith and fair dealing after denial of workers compensation benefits by defendant, summary judgment in favor of defendant is reversed because causes of action claimed by plaintiff are not barred by workers compensation exclusivity.

[04/18] U.S. Fidelity v. Lee Investments
In diversity action by plaintiff-insurance company seeking rescission of a workers compensation policy, judgment of the district court denying motion to dismiss is affirmed because court had subject matter jurisdiction where exclusive jurisdiction was not vested by state law in a compensation agency.

[04/11] Robidoux v. Muholland
In an injury and tort action arising from injuries plaintiff suffered while working at a construction site in Rhode Island, summary judgment in favor of defendant is reversed where Massachusetts Workers Compensation Act applies and does not bar claims.

[03/31] California Shock Trauma Air Rescue v. State Compensation Ins. Fund
In an dispute arising from several state-law claims and involving the issue of whether the expectation of a federal defense, without more, is sufficient to establish federal jurisdiction over state-law claims, dismissal by district court for lack of subject matter jurisdiction is affirmed where causes of action are based entirely on state claims, each of which does not, on its face, turn on a federal issue.

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