Litigation Update

Litigation Section News: October 2016

 • Senior Editor, Eileen C. Moore, Associate Justice, California Court of Appeal, Fourth District
 • Managing Editor, Reuben Ginsburg
 • Editor, Jessica Riggin

 

Table of Contents of This Issue

Arbitrator Misconduct.

The FINRA (Financial Industry Regulatory Authority, Inc.) arbitration winner, a securities brokerage firm, petitioned the superior court to affirm the award, and the defeated party petitioned to vacate the award, arguing the arbitrators refused to hear evidence she sought to introduce and refused to permit cross-examination she sought to elicit. The trial court refused to confirm the award and granted the petition to vacate, ruling that “the arbitrators exceeded their powers and that [the client’s] rights were substantially prejudiced by the arbitrators’ misconduct and refusal to hear material evidence.” The brokerage firm appealed. In affirming, the Court of Appeal stated: “The arbitrators’ refusal to hear [the client’s] evidence and cross-examination deprived [the client] of a fair hearing and substantially prejudiced her rights within the meaning of Code of Civil Procedure section 1286.2.” (Royal Alliance Associates, Inc. v. Liebhaber (Cal. App. 2nd Dist., Div. 4, Aug. 30, 2016) 2 Cal.App.5th 1092.)  http://www.courts.ca.gov/opinions/documents/B264619.DOC

“Every Day Brings New Choices”  [Take your choice, guns or drugs?], Martha Beck.

In this Nevada case, a person with a marijuana registry card, which requires an applicant to provide documentation from an attending physician that the applicant has a medical condition that the use of marijuana may mitigate, sought to purchase a gun. The gun dealer refused to sell the person a gun because the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent an open letter to all federal firearms licensees, which stated no firearms should be transferred to anyone who uses or is addicted to marijuana. A federal district court dismissed the person’s complaint against the ATF challenging its regulation. The Ninth Circuit affirmed, stating: “A marijuana registry card is circumstantial evidence, although by no means dispositive evidence of recent use or possession of marijuana.” (Wilson v. Lynch (9th Cir., Aug. 31, 2016) 2016 WL 4537376.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf

*SPLIT OF AUTHORITY*
Last month, we reported this decision from 4DCA, Division One:

Not You, Marine. 

One California statute (Veh. Code, § 23640, passed in 1998) states that the court is prohibited from diverting drunk drivers away from criminal prosecutions, and another (Pen. Code, § 1001.80, effective 2015) says that when a person is or was in the military and suffers from certain maladies as a result, and is accused of any misdemeanor, the court may divert the person. Section 1001.80 applies to defendants suffering from such conditions as traumatic brain injury, post-traumatic stress disorder, sexual trauma, and substance abuse as a result of military service, and allows the court to place the person accused of a misdemeanor in a pretrial diversion program. Vehicle Code § 23640, on the other hand, provides the following regarding drunk drivers: “the court shall neither suspend nor stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in any one or more education, training, or treatment programs, including but not limited to, a driver improvement program. . . .” In the instant two consolidated cases, one involves an active-duty Marine and the other a veteran of the Army, both of whom allege that they suffer from the maladies listed in §1001.80.  In both cases, the superior court suspended criminal proceedings and diverted the men away from normal prosecution for a court program pursuant to § 1001.80. The district attorney appealed, and the Court of Appeal reversed, stating: “We conclude military diversion is not available for defendants charged with driving under the influence offenses in violation of [Vehicle Code] sections 23152 and 23153.” (People v. VanVleck (Cal. App. 4th Dist., Div. 1, Aug. 11, 2016) 2 Cal.App.5th 355.) http://www.courts.ca.gov/opinions/documents/D069893.DOC

Now, there is a completely opposite decision from 2DCA, Division Four:

In this case, Hopkins, the defendant in a DUI case, served in the United States Navy Reserves. He completed a combat tour in Afghanistan and was a military police officer in an internment facility that housed Taliban and Al Qaeda prisoners. He was exposed to significant trauma and had service-connected PTSD, after which he developed a problem with binge alcohol addiction. Hopkins was charged with driving under the influence in violation of Vehicle Code § 23152, subdivision (a) and driving while having 0.08 percent or more of alcohol in his blood. He requested to be diverted from prosecution into a diversion program pursuant to Penal Code § 1001.80, and the trial court found Hopkins was barred from going to a diversion program. The Court of Appeal granted Hopkins’ writ petition for extraordinary relief, stating: “The purpose of the pretrial diversion program is to allow veterans who are suffering as a result of their service to get the services they need and also help them be more easily employed by keeping convictions off their records if they successfully complete the program.” Noting that another Court of Appeal district reached the opposite conclusion, this Court of Appeal further stated: “We urge the Legislature to act by amending section 1001.80 to express its intent with regard to military diversion in DUI cases.” (Hopkins v. Superior Court (Cal. App. 2nd Dist., Div. 4, Sept. 1, 2016) 2 Cal.App.5th 1275.) http://www.courts.ca.gov/opinions/documents/B270503.DOC

Read Before Signing.

A technology reporter who created “Kurt the CyberGuy” video segments for use on television news programs and station websites brought a lawsuit that underlies this petition for writ of mandate. Pursuant to a written agreement that the technology reporter and his company entered into with a local television station, website material the technology reporter created was distributed to the websites of certain television stations in other cities. The agreement stated in relevant part that the television station was the “exclusive, perpetual, and unencumbered owner forever.”  One of the local television stations placed links to the CyberGuy material on webpages with links to material created by a reporter who was hired following the termination of the reporter who had originally created the CyberGuy content.  Plaintiffs sued for common law misappropriation of name and likeness; violation of  Civil Code § 3344,which provides a similar misappropriation cause of action; and unfair business practices. The trial court denied the television station’s motion for summary judgment, and the station filed a petition for extraordinary relief in the Court of Appeal. In issuing the writ, the Court of Appeal stated: “We hold that based on the broad consent in the agreement, plaintiffs cannot prove lack of consent to the manner in which [the station] used the CyberGuy material.” (Local TV, LLC v. Superior Court (Cal. App. 2nd Dist., Div. 5, Sept. 2, 2016) 3 Cal.App.5th 1.) http://www.courts.ca.gov/opinions/documents/B271883.DOC

“Nothing Can Make Injustice Just But Mercy,” Robert Frost

In a personal injury case, the defendant moved for summary judgment. The plaintiff’s lawyer prepared and filed an opposition to the motion, attaching some grainy, low-resolution black and white photographs of the accident site and including other evidence adverse to his client’s interests. When the parties appeared for argument, plaintiff’s lawyer showed signs of physical distress and was taken to the hospital by ambulance. The hearing was continued for two months. The trial court granted the defendant’s motion in a written order, stating the photographs were of poor quality and that little could be gleaned from them. Thereafter, the plaintiff’s lawyer filed a motion for discretionary relief from the judgment under Code of Civil Procedure § 473, subdivision (b). He explained he was suffering from serious pulmonary and sleep disorders throughout the year 2013 and was put on a regimen of 12 different medications. During the course of his treatment, he was taken to the emergency room four times and consulted with five medical specialists in dozens of appointments and underwent a variety of studies. He said from August through December 2013—the period when he prepared the opposing papers—his illness was at its peak, and that he tried to soldier on. The lawyer attached doctors’ declarations to his motion for relief. The trial court granted the requested relief, and the defendant appealed. Noting that relief under § 473, subdivision (b) should not be applied to guarantee an avenue for attorneys to escape the consequences of professional shortcomings, the Court of Appeal affirmed, acceding to the trial court’s broad discretion and stating this case involves “a wholesale disintegration of the attorney’s professional capacity because of a medical crisis.” (Minick v. City of Petaluma (Cal. App. 1st Dist., Div. 4, Sept. 2, 2016) 3 Cal.App.5th 15.) http://www.courts.ca.gov/opinions/documents/A143187.DOC

Child Support Order Meets a Trust’s “Shutdown Clause.” 

A mother is the beneficiary of a trust established by her grandparents. A clause in the trust prohibits the trustee from making certain distributions if they would subject the beneficiary’s distribution to the claims of creditors. Meanwhile, the father of the beneficiary’s children obtained a child support order, but the trustee refused to satisfy the child support order from the trust estate. Because of the “shutdown clause” in the trust, the trial court denied the petition to compel the trustee to satisfy the child support order from the trust estate. The Court of Appeal reversed, stating: “We hold that, notwithstanding the shutdown clause, Probate Code section 15305 gives the trial court discretion to order a trustee to make distributions of income and principal to satisfy the final child support orders.” (Pratt v. Ferguson (Cal. App. 4th Dist., Div. 3, Sept. 6, 2016) 3 Cal.App.5th 102.) http://www.courts.ca.gov/opinions/documents/G052385.DOCX

Arbitration “Prohibitively Expensive.” 

Low income mobile home park residents who rent land sued a landowner for various contract and tort causes of action. The landowner petitioned to compel arbitration. In opposing the petition to compel arbitration, the mobile home residents submitted evidence that an arbitration would take several days and that JAMS’s neutral arbitrators charged from $500 to $800 per hour each, or from $5,000 to $10,000 per day. In addition, JAMS assessed a mandatory $400 filing fee. The trial court denied the petition, finding the arbitration provision contained in the rental agreement unconscionable and unenforceable. In affirming, the Court of Appeal stated: “We conclude the arbitration provision was procedurally unconscionable, as it failed to disclose prohibitively expensive arbitration fees and was neither provided in a Spanish-language copy nor explained to respondents who did not understand written English. We further conclude the arbitration provision was substantively unconscionable as it imposed arbitral fees that were unaffordable or would have substantially deterred respondents from asserting their claims.” 
(Penilla v. Westmont Corporation (Cal. App. 2nd Dist., Div. 4, Sept. 9, 2016) 3 Cal.App.5th 205.) http://www.courts.ca.gov/opinions/documents/B262097.DOC

“Greed Overcame His Concern for Medical Care,” The Ninth Circuit about a doctor sentenced to prison. 

A urologist who bragged that the volume of his successful medical practice made him the “McDonald’s of Urology” was found guilty of conspiring to commit adulteration and sentenced to prison for 48 months. In performing prostate biopsies, the doctor re-used one-time-use needle guides. Made of plastic, the needles guides were not capable of being sterilized for re-use because they sustained scratches during use, which scratches filled with bodily fluids and debris when used one time.  When an associate doctor discovered the disposable guides were being used multiple times, he called for an immediate halt to the practice, but the urologist continued re-using the guides nonetheless. Finally, medical assistants reported the situation to the state medical board, which immediately notified federal investigators. After being convicted at trial, the urologist appealed, challenging “the statute under which he was charged, the sufficiency of the evidence, the denial of his proposed jury instructions, the sufficiency of the indictment, and his enhanced sentence.”  The Court of Appeal, however, affirmed the conviction. (United States v. Kaplan (9th Cir., Sept. 9, 2016) 2016 WL 4709870.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/09/15-10241.pdf

“You Can Judge a Society By How Well It Treats Its Prisoners,” Fyodor Dostoevsky. 

A woman was arrested for forgery and identity theft when she was six months pregnant. Because she could not prove she was a legal resident of the United States, she was detained. While she was in custody, she gave birth to a healthy boy. Days later, she was sentenced to time served and released. When she went into labor, she was transferred to the hospital by ambulance. During the ride, her wrists were handcuffed in front of her and her ankles were shackled with plastic cuffs connected to a metal chain. While at the hospital, officers placed her in restraints while she was connected to a fetal monitor. In the delivery room, she was not shackled or restrained, although armed officers remained in the room. After the baby was born, she was shackled at the ankle to a chain connected to her bed. The chain was six to eight feet long, which permitted her to use the bathroom dragging the chain, which caused pain. Once out of jail, the woman filed suit under 42 USC §§ 1981 & 1983, alleging that her constitutional rights were violated when she was shackled and restrained during labor and postpartum recovery. One of her arguments is that the Eighth Amendment’s prohibition on cruel and unusual punishment prevents government officials from acting with deliberate indifference to a prisoner’s health and safety. The trial court granted summary judgment. The Ninth Circuit Court of Appeal reversed, stating that “a reasonable jury could find that the Restraint Policy exposed [the woman] to a substantial and unjustified risk of harm.” (Mendiola-Martinez v. Arpaio (9th Cir., Sept. 12, 2016) 2016 WL 4729476.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/12/14-15189.pdf

Court Declined to Issue Permanent Injunction Due to Noise. 

Plaintiffs share a property line with a resort. When the resort holds outdoor events on a lawn created for that purpose, plaintiffs contend the noise interferes with their use and enjoyment of their property. Plaintiffs filed an action alleging a private nuisance based on the fact that defendant’s use of its public address system permits words to be heard outside its premises. The trial court issued a preliminary injunction prohibiting defendant resort from generating any noise whatsoever in excess of the statutory limits imposed by the county on plaintiff’s property. After conducting a lengthy bench trial, the court declined to issue a permanent injunction, stating: “In this case, plaintiffs elected not to pursue other avenues for addressing the dispute. In particular, they abandoned their earlier attempts to obtain relief through available county administrative procedures. They likewise chose not to join other homeowners in the neighborhood, who continued to work informally with the resort owners despite not being completely satisfied with the progress. By filing this lawsuit and taking the matter to trial, plaintiffs effectively drew a line in the sand. But forced to choose, the Court concludes that the noise in this case is not so substantial and unreasonable as to fall on the side of the line that would require issuance of the injunction sought by plaintiffs.” In affirming, the Court of Appeal pointed out, however, that even if the noise constitutes interference with plaintiff’s use and enjoyment of their own land, the interference must be “substantial and unreasonable,” and this is not. (Mendez v. Rancho Valencia Resort Partners, LLC (Cal. App. 4th Dist., Div. 1, Sept. 13, 2016) 2016 WL 4771043.) http://www.courts.ca.gov/opinions/documents/D067899.DOC

Employer Cannot Compel Split of PAGA Claim in Different Forums.

In this wage and hour case, plaintiffs filed a representative action under the Private Attorneys General Act of 2004 (“PAGA”) (Lab. Code, § 2698 et seq.), alleging that defendant employer violated several provisions of the Labor Code, including overtime and meal break requirements. Defendant filed a motion to compel plaintiffs to individually arbitrate the issue of whether they qualified as “aggrieved employee[s],” and therefore had standing to pursue a PAGA claim, contending that all other issues regarding the PAGA claim should be stayed pending resolution of the arbitration. The trial court denied the motion, concluding that California law prohibits an employer from compelling an employee to split the litigation of a PAGA claim between multiple forums. The Court of Appeal affirmed, stating, “Even if the agreement does require plaintiffs to arbitrate whether they have standing to bring a PAGA claim, the provision is unenforceable under California law.” (Perez v. U-Haul Co. of California (Cal. App. 2nd Dist., Div. 7, Sept. 16, 2016) 2016 WL 4938809.) http://www.courts.ca.gov/opinions/documents/A139710.DOC

The Going and Coming Rule. 

A jury found an employer liable for a car accident caused by its employee under the theory of respondeat superior, despite the fact that its employee had finished his shift and was driving home at the time of the accident. The employer moved for judgment notwithstanding the verdict (JNOV), arguing there was no evidence supporting application of the “required vehicle” exception to the “going and coming” rule. The trial court denied the motion. Concluding plaintiff presented no evidence the employee was acting within the scope of his employment at the time of the accident, the Court of Appeal reversed. (Jorge v. Culinary Institute of America (Cal. App. 1st Dist., Div. 2, Sept. 16, 2016) 2016 WL 4938798.) http://www.courts.ca.gov/opinions/documents/A143545.DOC

170.6 Filed in Only One of Two Related Cases

A family law case had been ongoing for quite a while when a related civil case was filed, so the civil case was assigned to the family law judge who was familiar with the situation. Then, counsel for one of the parties in the related civil case filed a peremptory challenge to the judge pursuant to Code of Civil Procedure § 170.6. Both cases were then re-assigned to a different judge. The husband asked for reconsideration of the § 170.6 transfer of the family law matter, arguing the challenge had not been filed in the family law case and there was therefore no basis to transfer that case to another judge, just because the civil case had to be transferred.  The Court of Appeal agreed, holding: “We hold a section 170.6 challenge filed in a case that is related to (not consolidated with) an earlier-filed case in which the assigned judge has resolved a disputed factual issue relating to the merits requires transfer of only the later-filed case to another judge.” (Rothstein v. Superior Court (Cal. App. 2nd Dist., Div. 5, Sept. 16, 2016) 2016 WL 4939297.) http://www.courts.ca.gov/opinions/documents/B275603.DOC

No Qualified Immunity For Police Officer in Excessive Force Case. 

A man reportedly hit his girlfriend and took her cell phone. The police dispatcher informed the patrol officer that the man was not known to carry a gun. The officer pulled up next to the man as he walked down the street. The man had one hand exposed and the other in a pocket. The officer ordered him to remove his hand from his pocket, and one second later, the man started to comply, but it was too late as the officer shot and killed him. The officer later explained he believed the man had a gun. No gun was found. The man’s family brought an action against the officer and the city under 42 USC § 1983 for excessive force. The trial judge denied defendants’ motion for summary judgment. The Ninth Circuit affirmed, stating that, based on a totality of the circumstances, the officer’s fatal shooting of the man violated the Fourth Amendment, and concluding the officer was not entitled to qualified immunity because he violated clearly established law. (A. K. H. v. City of Tustin (9th Cir., Sept. 16, 2016) 2016 WL 4932330.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/16/14-55184.pdf

City/County Placed Burden on Landlords

The Ellis Act (Gov. Code § 7060 et seq.) was enacted in 1985 to protect property owners’ right to exit the residential rental business. In enacting the Ellis Act, the Legislature expressly stated its intent to permit landlords to evict tenants and withdraw units from the market. In 2013, the City and County of San Francisco enacted an ordinance in response to a growing concern about the shortage of residential rental properties. The ordinance requires landlords undertaking Ellis Act evictions to wait ten years after withdrawing a rental unit from the market before qualifying for approval to merge a withdrawn unit with one or more other units. The trial court granted injunctive relief to a group of apartment associations and realtors who argued the ordinance is preempted by the Ellis Act, enjoining enforcement of the ordinance. In affirming, the Court of Appeal stated that “a public entity may not impose an inevitable and undue burden (to wit, a ‘prohibitive price’) on a landlord’s exercise of its rights under the Ellis Act to exit the residential rental business.”
(San Francisco Apartment Association v. City & County of San Francisco (Cal. App. 1st Dist., Div. 3, Sept. 19, 2016) 2016 WL 4990057.) http://www.courts.ca.gov/opinions/documents/A144702.DOC

Government Claims Get More and More Complicated. 

In Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, the Court of Appeal held that “a plaintiff may allege compliance with the claims presentation requirement in the Government Claims Act by including a general allegation that he or she timely complied with the claims statute.” In this case, plaintiff checked the boxes to item 9.a of the Judicial Council form for pleading a personal injury cause of action and thereby alleged that she was required to comply with a claims statute and had complied with applicable claims statutes. Later in her pleading, plaintiff alleged that she “served a claim on [defendant hospital] pursuant to Cal. Gov. Code § 910 et seq. on or at December 3, 2013.” The trial court sustained defendant’s demurrer without leave to amend, noting plaintiff did not allege facts showing that she had presented her claim to defendant by one of the methods authorized by Government Code § 915, subdivision (a), so the claim was deemed to be rejected for failing to act within the statutory period. The Court of Appeal reversed, stating that “applying the rule adopted in Perez, we conclude she adequately alleged compliance with the Government Claims Act and the demurrer should have been overruled.”
(Esparza v. Kaweah Delta District Hosp. (Cal. App. 5th Dist., Sept. 21, 2016) 2016 WL 5121829.) http://www.courts.ca.gov/opinions/documents/F071761.DOCX

Determining Whether a Man Was a Member of a Terrorist Organization

An immigration judge determined a native of Indonesia, who came to this country in 2000 on a nonimmigration visitor’s visa, was barred from staying here due to his material support of a terrorist organization. The Department of Homeland Security initiated removal proceedings because the man belonged to Jamaah Muslim Attaqwa (JMA) in Indonesia. JMA was intolerant of non-Muslims and engaged in anti-government activities. The man testified that he became involved with JMA when he was 17 years old when the group was devoted to helping people in his neighborhood fixing their homes and delivering medicines to hospitals. The man said that it was later the organization became radicalized, and that in 2000, he quit his position in protest of JMA’s changed tactics. He said after he quit, JMA came to his home where they beat him, sexually assaulted his wife, and stole the family’s valuables. He reported the incident to the police, who refused to intervene after determining the situation was a religious conflict. Later, police picked him up and beat him for two days. The Ninth Circuit Court of Appeals in a 2 to 1 decision determined there was no substantial evidence JMA engaged in terrorist activities and reversed. The dissenting/partially concurring judge stated that “the majority undermines our ability to be vigilant against terrorism.” (Budiono v. Lynch (9th Cir., Sept. 21, 2016) 2016 WL 5112030.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/21/12-71804.pdf

CCP § 1021.5 Attorney Fees Award Reversed. 

This is a validation action in which a city filed a complaint regarding its intent to levy a special tax to finance the expansion of its convention center. When a defendant filed its verified answer, it was a suspended corporation, and it was not revived until well after the time period by which an interested party had to answer the validation action.  That defendant prevailed in the action, and the trial court awarded attorney fees pursuant to Code of Civil Procedure § 1021.5, but limited the fees because the defendant first appeared when it was a suspended corporation and did not inform the court or the city of its status.  In reversing the award of attorney fees, the Court of Appeal stated: “This case presents an issue of first impression. Under section 1021.5, should attorney fees be awarded when a suspended corporation files an answer in a validation action and both the corporation and its attorney know it is suspended and it is not revived before the expiration of the deadline to appear in that action? We answer this question in the negative, and thus, reverse the order granting SDOG its attorney fees.” (City of San Diego v. San Diegans For Open Government (Cal. App. 4th Dist., Div. 1, Sept. 22, 2016) 2016 WL 5231822.) http://www.courts.ca.gov/opinions/documents/D068939.DOC

Homeowner Pays When Employee of Pool Contractor is Injured While Constructing a Pool. 

A homeowner hired a pool contractor to build a pool and spa. An employee of the contractor suffered injuries when he installed a propane fueled pool heater on the homeowner’s property. The employee sued the homeowner for negligence and premises liability. Prior to hiring the pool contractor, the homeowner had hired a plumber to install a gas line. The plumber ran a pipe into the backyard to a location specified by the homeowner and capped it, leaving a marker for the pool contractor. The plumber also installed an underground vault for storage of pool equipment. The homeowner did not realize that, since propane is heavier than air, certain precautions had to be taken to run propane into the vault. Also, the homeowner did not obtain separate permits for the vault and the propane line, nor did he have the county inspect the vault. The homeowner hired the pool contractor a year later, and it was the pool contractor who designed the layout for the equipment in the underground vault, including where the propane line would enter the vault. Neither the pool contractor nor the injured employee read the instruction manuals for the spa heater and propane conversion kit the pool contractor had purchased for the project, which warned of explosions. A jury found the homeowner was negligent and assigned 40 percent of fault to him. Judgment was entered against the homeowner for $3 million. The homeowner appealed, contending the court misinstructed the jury, but the Court of Appeal found the homeowner invited the error by requesting the instructions. The judgment was affirmed. (Regalado v. Callaghan (Cal. App. 4th Dist., Div. 1, Sept. 22, 2016) 2016 WL 5243287.) http://www.courts.ca.gov/opinions/documents/D069647.DOC

Family Code § 3044. 

Family Code § 3044 establishes a rebuttable presumption that prevents a trial court from awarding sole or joint physical or legal custody of a child to a parent who commits an act of domestic violence against the other parent, unless the offending parent establishes by a preponderance of the evidence that an award of custody to that parent is in the child’s best interest. Here, the trial court found the father committed an act of domestic violence against the mother, and therefore awarded her sole legal and physical custody of the couple’s two children because the father presented no evidence showing an award of custody to him was in the children’s best interest. Nonetheless, the court also awarded the father 50/50 “visitation.” Under that arrangement, the children alternated living with the mother for one week and then the father for a week. The mother appeals, arguing the trial court may not circumvent § 3044. The appellate court reversed the trial court’s order, concluding the trial court abused its discretion in awarding the father equal time with the children without requiring him to establish that arrangement was in the children’s best interest.  (Celia S. v. Hugo H. (Cal. App. 4th Dist., Div. 3, Sept. 23, 2016) 2016 WL 5340249.) http://www.courts.ca.gov/opinions/documents/G052124.DOC

“It Ain’t Over ‘Til It’s Over,” Lenny Kravitz. 

The year before a married couple separated, the husband sold a business he owned and operated during the marriage after the wife signed a “consent of spouse” document consenting to the sale and approving the provisions of the purchase agreement. In the consent, the wife acknowledged the business and its assets “including any community property interest that she may have in them” were subject to the purchase agreement. A substantial portion of the proceeds from the sale of the business was spent on the couple’s residence. In 2009, the couple reached a settlement agreement, and judgment was entered thereon. They agreed to split any proceeds from the sale of the business, but the right to assert claims against the purchaser of the business was given to the husband. The purchaser of the business later brought an action seeking rescission. The trial court found the husband, alone, was financially responsible for defending and settling the purchaser’s claim . In reversing, the appellate court stated: “We conclude the liability arising from the claim for rescission and other relief initiated by the third party was a community obligation omitted from the marital dissolution judgment that divided the couple’s assets and obligations, subject to division under Family Code section 2556. We find, therefore, that [the wife] was obligated to pay half the cost of settling the litigation and reverse the court’s order to the extent it denied [the husband] this relief.” (In re Marriage of Nassimi (Cal. App. 2nd Dist., Div. 4, Sept. 26, 2016) 2016 WL 5361748.) http://www.courts.ca.gov/opinions/documents/B259704.DOC

Foreign Judgments

A judgment creditor sought to enforce an “astreinte” against the judgment debtor in California under the California Uniform Foreign-Country Money Judgments Recognition Act (Code Civ. Proc. § 1713 et seq.) in a federal district court. The federal trial judge determined the astreinte was not awarded to compensate the plaintiff, but to compel the defendant to comply with the judgment, and, therefore, was not cognizable under the Act. In reversing, the Ninth Circuit stated: “[W]e hold that the astreinte awarded by the French courts to de Fontbrune falls within the Uniform Recognition Act as a judgment that ‘[g]rants . . . a sum of money.’ Cal. Civ. Proc. Code § 1715(a)(1). In this case, the astreinte was not a ‘fine or other penalty’ for purposes of the Act, id. § 1715(b)(2), and accordingly the district court erred in concluding otherwise.” (de Fontbrune v. Wofsy (9th Cir., Sept. 26, 2016) 2016 WL 5349749.) https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/26/14-15790.pdf

Military Retirement Issue in Divorce. 

For 20 years, the husband served in the United States Navy, including in the Vietnam War and the Persian Gulf War. For 17 of those years, the husband and wife were married. In 1991, after the husband retired, he started receiving military retirement benefits. In 2003, the couple stipulated to a judgment of dissolution in a marital settlement agreement, which was approved by the court at the time a judgment of dissolution was entered in 2004. After the judgment of dissolution, the Department of Veterans Affairs offered the husband the opportunity to apply for combat-related special compensation benefits in lieu of his military retirement benefits, as he had been diagnosed with posttraumatic stress disorder (PTSD) because of his active combat roles. The dollar amounts of the two benefits were the same, but the difference was that combat-related special compensation benefits were not taxable. Because of the tax advantage, the husband elected to receive combat-related special compensation benefits in lieu of his military retirement benefits. In 2014, the husband ceased the $475/month payments to the wife as her share of his retirement, and when he stopped, the wife filed a lawsuit seeking to enforce the terms of the judgment of dissolution to continue her monthly payments of $475/month. The trial court ordered a constructive trust on the combat-related special compensation benefits the husband received and directed payment of $475/month to the wife. The Court of Appeal reversed the order of a constructive trust, but affirmed the order that the wife receive $475/month, stating: “It is a ‘settled principle that one spouse cannot, by invoking a condition wholly within his control, defeat the community interest of the other spouse.’”
(In re the Marriage of Chapman (Cal. App. 3rd Dist., Sept. 27, 2016) 2016 WL 5390151.) http://www.courts.ca.gov/opinions/documents/C079615.DOCX

Corruption at the DMV. 

A man filed a petition for writ of mandate seeking an order directing the DMV to vacate the revocation of his driver’s license on the grounds there was no admissible evidence that police properly admonished him that refusing to submit to a blood alcohol test would have that result. While his petition was pending, the DMV hearing officer who upheld the revocation pleaded guilty to taking bribes in exchange for favorable treatment. The court denied the writ but granted relief by ordering the DMV to conduct a new hearing. Dissatisfied with that result, the man appealed. Since the trial judge’s order was not an appealable order, the Court of Appeal treated the man’s appeal as a petition for writ of mandate and concluded the trial court was correct in ordering a new hearing. (Hall v. Superior Court (Cal. App. 4th Dist., Div. 1, Sept. 29, 2016) 2016 WL 5462413.) http://www.courts.ca.gov/opinions/documents/D068516.DOC

Future Loss of Earnings. 

A plaintiff suing for medical malpractice sought damages for diminution in her earning capacity. She had been planning to go to law school and was accepted by four schools, but was unable to do so because of her injury. A jury awarded $1,045,000 in damages, which consisted of $285,000 for past economic loss; $730,000 in future economic loss; $15,000 for past non-economic damages; and $15,000 for future non-economic damages. The trial court granted a new trial on the issue of damages. The Court of Appeal affirmed, stating: “Because the plaintiff in this case did not adduce any evidence to establish that it was ‘reasonably probable’ she could have obtained employment as an attorney or any evidence on the earnings of lawyers, the trial court did not abuse its discretion in determining that the jury’s $730,000 award for lost earning capacity was not supported by substantial evidence. What is more, given the unusual facts of this case, the court acted within its discretion in granting a new trial on damages rather than entering a judgment notwithstanding the verdict for the defendants.”
(Licudine v. Cedars-Sinai Medical Center (Cal. App. 2nd Dist., Div. 2, Sept. 29, 2016) 2016 WL 5462099.) http://www.courts.ca.gov/opinions/documents/B268130.DOC

The Court Posted Confidential Information on its Website. 

Civil Code § 1708.85 provides that under certain circumstances a plaintiff may file an action under a pseudonym. In this case, a plaintiff named John Doe filed an action against a defendant, alleging distribution of recordings and tapes of Doe’s intimate parts and engaging in sexual acts. As required by section 1708.85, subdivision (f)(1), Doe filed and served a confidential information form, Judicial Council Confidential Information Form MC-125, which included Doe’s true name and informed the court that he would be using a pseudonym throughout the course of the action. The superior court, at some point after Doe filed the MC-125 form, posted the form on its Web site, consequently making the confidential information available to the public during the time that it was posted. Thereafter, the superior court ordered that all future pleadings be filed with the true name of the parties. The Court of Appeal directed the trial court to treat the information as confidential. (Doe v. Superior Court (Cal. App. 2nd Dist., Div. 1, Sept. 29, 2016) 2016 WL 5462947.)  http://www.courts.ca.gov/opinions/documents/B271508.DOC

 

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