In The News

Case Summaries

Civil Procedure

[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.

[03/10] Clos v. Corrections Corp. of Am.
In an action by a prisoner claiming that he suffered disability discrimination related to his severe hearing loss, plaintiff's appeal from partial summary judgment for defendants is dismissed where the district court's conclusory order provided no basis for a finding that plaintiff would face hardship or injustice by waiting to appeal until his remaining claim against defendants was fully resolved.

[03/10] American Signature, Inc. v. US
In proceedings involving an importer of furniture that is subject to a 2005 antidumping duty order on certain entries of wooden bedroom furniture from China, a decision of the Court of International Trade denying plaintiff's motion for a preliminary injunction is reversed as plaintiff has satisfied the requirements for a preliminary injunction, and therefore, the Court of International Trade is directed to grant the preliminary injunction prohibiting Customs or Commerce from taking any action to liquidate or reliquidate import entries that are the subject of this action.

[03/10] Anchor Sav. Bank, FSB v. US
In one of the last Winstar cases arising out of the savings and loan crisis of the late 1970s and early 1980s, involving a plaintiff's suit alleging that the adoption of the FIRREA and its implementing regulations breached the government's obligations under supervisory merger contracts, judgment of the trial court in favor of the plaintiff is affirmed in part and remanded in part where: 1) the trial court did not commit clear err in finding that it was foreseeable that the breach would result in lost profits to plaintiff in an amount commensurate with the ultimate award for lost profits; 2) the trial court did not err in finding of a causal connection between the government's breach of contract and plaintiff's sale of RFC (a mortgage banking company); 3) the trial court did not err in awarding lost profit damages attributable to plaintiff's forced sale of RFC; 4) the trial court permissibly concluded that NAMCO (mortgage company) was a reasonable commercial substitute for RFC, and its purchase thus qualified as mitigation for the loss of RFC; but 5) the case is remanded to allow the trial court to determine whether an error was made in offsetting plaintiff's mitigation costs by NAMCO's retained earnings through 1997 and, if so, how to correct the error.

[03/10] Milwaukee Metro. Sewerage Dist. v. American Int'l Specilaty Lines Ins. Co.
In a sewerage district's suit for damages against an environmental liability insurer for denying coverage for costs incurred by the district in removing significant pollution on land it recently purchased, district court's judgment is reversed and remanded as the district court's finding that there was clear and convincing proof that a prior agreement existed between the insurance company and the sewerage district that the parcel would be covered property was clearly erroneous. Therefore, defendant is entitled to judgment on the sewerage district's reformation claim and, as a consequence, judgment in favor of defendant on its indemnity claim is vacated.

[03/10] Russian Media Group, LLC v. Cable Am., Inc.
In plaintiff's action against defendant-cable television company claiming that it pirated Russian-language satellite television programming to enable it to compete unfairly against plaintiff's legitimate business, grant of a preliminary injunction enjoining defendant and others from distributing Russian-language television to twenty specific apartment houses where they had been operating illegally is affirmed where: 1) the district court did not abuse its discretion in writing the injunction as it did; 2) defendants did not raise the preemption defense until after they had appealed the preliminary injunction and, as such, it is not appropriate to overturn an injunction on the basis of a defense that the district court had no opportunity to consider; 3) defendants' contentions that the plaintiff is not an "aggrieved party" are without merit; and 4) the district court properly rejected a res judicata defense.

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/09] Wampler v. Southwestern Bell Tel. Co.
In an antitrust action on behalf of a putative class of all residents of multiple dwelling units (MDUs) in five states who were limited to voice, video, and Internet service by contracts with defendant AT&T, dismissal of the action is affirmed where a single MDU (or MDUs in the aggregate) could not plausibly be considered a relevant geographic market for antitrust purposes. (Revised opinion)

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Civil Rights

[03/10] Clos v. Corrections Corp. of Am.
In an action by a prisoner claiming that he suffered disability discrimination related to his severe hearing loss, plaintiff's appeal from partial summary judgment for defendants is dismissed where the district court's conclusory order provided no basis for a finding that plaintiff would face hardship or injustice by waiting to appeal until his remaining claim against defendants was fully resolved.

[03/10] Cameron v. N.Y.
In an action for false arrest and malicious prosecution, judgment for defendant-officers is reversed where: 1) prosecutors' opinions as to probable cause and complaining officers' credibility are irrelevant in virtually all cases involving claims of malicious prosecution; and 2) the introduction of such evidence was not harmless because it provided strong external validation for propositions that otherwise would have come in only from the defendants' mouths.

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/09] Equal Employment Opportunity Comm'n v. Hosanna-Tabor Evangelical Lutheran Church & Sch.
In an employment discrimination and retaliation action brought by a teacher at a religious school claiming violations of the ADA, the district court's grant of summary judgment in favor of the defendant based on the "ministerial exception" is vacated and remanded as, given the factual findings relating to plaintiff's primary duties as a teacher, the district court erred in its legal conclusion classifying her as a ministerial employee.

[03/09] Redd v. Wright
In a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where: 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's Free Exercise rights; 2) it could not reasonably be said that defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.

[03/08] McBeth v. Himes
In a 42 U.S.C. section 1983 action arising out of an investigation by the sheriff's office and the Colorado Department of Human Services that resulted in plaintiff surrendering her license to run a daycare facility in Colorado, partial summary judgment based on qualified immunity to defendant-officials is affirmed in part where: 1) plaintiff voluntarily relinquished her license before any suspension proceedings could take place; and 2) defendants made a prima facie showing that they acted objectively reasonably when they sought suspension of plaintiff's daycare license. However, the order is reversed in part where plaintiff failed to allege and prove that the state officials lacked cause to seek suspension of her license.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

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Consumer Protection

[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.

[02/12] Thorogood v. Sears Roebuck & Co.
In plaintiff's class action lawsuit claiming that defendant-company sold dryers that were misrepresented as containing stainless steel drums in violation of the Tennessee Consumer Protection Act, dismissal of the suit for lack of subject matter jurisdiction, after a remand following decertification, is affirmed as the district judge was within his discretion in deciding that no attorney's fees should be awarded.

[02/12] Talley v. US Dep't of Agric.
In plaintiff's suit against the U.S. Department of Agriculture under the Fair Credit Reporting Act (FCRA) claiming that the Department violated the Act's requirements by reporting that plaintiff is behind on a loan that has been paid off on four separate occasions, judgment in favor of plaintiff is affirmed where: 1) the Tucker Act waives sovereign immunity for compensatory-damages claims under the Fair Credit Reporting Act; 2) the district court had subject matter jurisdiction under 28 U.S.C. section 1331 and 15 U.S.C. section 1681p; 3) attorney's fees as part of costs do not count toward the threshold set forth in the Tucker Act, any more than the costs themselves do; and 4) appellate jurisdiction exists as plaintiff appealed to section 1331 and section 1681p and did not invoke the Tucker Act as a grant of subject matter jurisdiction.

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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

[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.

[01/07] Florida Bar v. Head
In the Florida Bar's complaint against a lawyer for ethical breaches, a referee's findings are affirmed in part and reversed in part where: 1) defendant-lawyer failed to meet his burden of proving that the referee's findings of fact are not supported by the record; and 2) referee's recommendation of a sixty-day suspension is rejected and instead, defendant is suspended from the practice of law for one year and thereafter until he proves rehabilitation.

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Ethics & Professional Responsibility

[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.

[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] 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.

[02/26] 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.

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Injury & Tort Law

[03/10] Primiano v. Cook
In an action against the manufacturer of an artificial elbow, summary judgment for defendant is reversed where the exclusion of plaintiff's expert's evidence was error as plaintiff's expert, with a sufficient basis in education and experience, testified that the artificial joint "failed to perform in the manner reasonably to be expected in light of its nature and intended function," which was enough to assist a trier of fact.

[03/10] Fortis Corp. Ins. SA. v. Viken Ship Mgmt. AS
In a maritime shipping case involving a claim for rust damage to steel coils caused by exposure to seawater during a journey from Poland to Ohio, judgment of the district court is affirmed where: 1) a ship manager charged with providing a Master, officers and crew, and performing various other ship-management tasks for the shipping vessel does not qualify as a "carrier" under the Carriage of Goods by Sea Act (COGSA), and thus the COGSA's one year-statute of limitations does not bar the underlying suit; and 2) defendant's claim that the district court's finding of negligence was based on clearly erroneous factual findings is rejected.

[03/10] Cameron v. N.Y.
In an action for false arrest and malicious prosecution, judgment for defendant-officers is reversed where: 1) prosecutors' opinions as to probable cause and complaining officers' credibility are irrelevant in virtually all cases involving claims of malicious prosecution; and 2) the introduction of such evidence was not harmless because it provided strong external validation for propositions that otherwise would have come in only from the defendants' mouths.

[03/09] Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.

[03/09] Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

[03/09] McGuan v. Endovascular Techs., Inc.
In plaintiffs' products liability action against the makers of a device for use by surgeons to treat abdominal aortic aneurysms, for injuries suffered after they were implanted with the device, grant of defendants' motion for a summary judgment is affirmed where: 1) plaintiffs' fraud claims of FDA violations are preempted under Buckman; 2) the trial court did not err in denying plaintiffs' motions to amend their complaints; and 3) the trial court did not abuse its discretion in granting defendants' motion to seal documents.

[03/09] Seltzer v. Barnes
Trial court's denial of defendant's anti-SLAPP motion, arising from an underlying suit involving claims against a property management company and homeowners' association, is reversed where: 1) the trial court erred in concluding plaintiff's two causes of action against defendant do not arise from speech or petitioning activity where his alleged conduct was the negotiation of a settlement in the prior case; and 2) because defendant may not be held liable for the alleged conduct under the litigation privilege, plaintiff has failed to show a probability of prevailing on her causes of action for fraud and intentional infliction of emotional distress.

[03/05] Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).

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Legal Malpractice

[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".

[03/03] 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.

[03/02] 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.

[02/11] Anderson v. Chikovani
In a medial malpractice action, defendant's motion to dismiss the appeal is denied as, where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment.

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Professional Malpractice

[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".

[03/03] 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.

[03/02] 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.

[02/11] Anderson v. Chikovani
In a medial malpractice action, defendant's motion to dismiss the appeal is denied as, where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment.

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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.

[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.

[01/25] B-Line, LLC v. Wingerter
In Chapter 13 proceedings, the decision of the bankruptcy court in holding that plaintiff's purchase of a creditor's claim against the debtors was not valid is reversed where: 1) the bankruptcy court clearly erred in finding that the purchase agreement between the plaintiff and the intermediary did not contain representations about the validity of the claims purchased by plaintiff; and 2) the bankruptcy court abused its discretion in determining that plaintiff's actions violated Rule 9011(b) and were therefore sanctionable.

[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

[03/10] US v. Wilder
Defendants' drug conspiracy convictions and sentences are affirmed where: 1) the district court did not err in excluding a document as hearsay because a witness was unable to verify that the proffered document was a public record created by the police department; 2) the government established that defendant knowingly and intentionally joined an agreement to distribute controlled substances; 3) the court was not convinced that the trial record presented an obvious case of a defendant with no predisposition to distribute crack cocaine, such that the district court plainly erred by failing to instruct the jury on entrapment; and 4) the district court explained that it had considered all of the 18 U.S.C. section 3553(a) factors, including the nature and circumstances of the offense and defendant's history and characteristics.

[03/10] US v. Almany
In a prosecution of defendant for drug and firearm related offenses, the case is remanded for resentencing where: 1) the district court committed plain error by failing to probe defendant's understanding of the appellate waiver provision of his plea agreement, and therefore, the waiver is unenforceable against the defendant; and 2) the district court erred by sentencing defendant to both a five-year mandatory minimum sentence under the firearm statute and a ten-year mandatory minimum sentence under the drug statute.

[03/09] US v. Wise
Defendant's firearm possession sentence is affirmed where: 1) defendant's prior conviction under Utah law for failure to stop at the command of a police officer was a "crime of violence" under the Sentencing Guidelines; and 2) the district court erred in not assigning criminal history points for one of defendant's prior convictions, but that error did not invalidate defendant's sentence.

[03/09] In re Victor L.
In a conviction of a minor for possession of specified illegal weapons, juvenile court's order placing the defendant on probation with various conditions is affirmed for the most part with the exception of: 1) the restrictions on defendant's right to associate with individuals disapproved of by his probation officer or his parents is unconstitutionally vague and will be modified to include a personal knowledge requirement; 2) restrictions on defendant's presence "where dangerous or deadly weapons or firearms or ammunitions exist" is unconstitutional as due process requires that the probationer be informed in advance whether his conduct comports with or violates a condition of probation; and 3) to the extent the second Internet condition prohibits any "use of" or "access to" an Internet-enabled computer, it conflicts with the other two conditions, thereby making the combination of conditions unconstitutionally vague.

[03/09] US v. Salem
In a prosecution of defendants for wire fraud and receiving stolen funds, district court's sentences based on relevant conduct findings are remanded as the district court made findings as to the reasonableness of the co-schemers' acts only, but it made no finding as to the scope of the jointly undertaken criminal activity under U.S.S.G. section 1B1.3(a)(1)(B).

[03/08] US v. Miller
Dismissal of defendant's petition for a writ of audita querela challenging a restitution order, arising from his conviction for conducting a monetary transaction with criminally-derived funds and evading income tax, is affirmed where: 1) if it still exists, the writ of audita querela can only be applied to rectify a judgment which, though correct when rendered, has since become infirm; and 2) since all parties to this case agree that the district court's restitution order was initially correct, and because the statute does not require the order to be modified every time a subsequent payment is made on a restitution obligation, there is no infirmity in defendant's judgment for a writ of audita querela to rectify.

[03/08] People v. Cobb
Following defendant's completion of sentence for assault with a deadly weapon and commitment to a state hospital for treatment as a mentally disordered offender (MDO), judgment of the court of appeals finding that defendant was not denied due process in extension of his commitment is affirmed as, without a time waiver or good cause, section 2972 does not permit continued confinement when an extension trial does not begin before the scheduled release date.

[03/08] People v. Lara
Following defendant's prosecution for false imprisonment of a child, a finding of not guilty by reason of insanity, and commitment to a state hospital, judgment of the court of appeal directing that the trial court grant defendant's motion to dismiss the petition for an extension of his commitment is reversed where: 1) the statutory deadline for filing an extension petition is directory, not mandatory, as long as the petition is filed before the expiration of the current commitment; 2) defendant was not entitled to a dismissal of the petition on due process grounds; and 3) upon motion, defendant would have been entitled under due process to release pending trial, subject to possible proceedings under the Lanterman-Petris-Short Act. However, defendant is not now eligible for release because the court retained jurisdiction to try him and he received a fair trial.

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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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