Case Summaries

Family Law

[08/20] In re Adrianna P.
Order granting reunification services to presumed father is remanded with orders to vacate where: 1) the record made clear that providing reunification services to father would be detrimental to the child; and 2) the court abused its discretion when it ordered agency to provide reunification services to father. Order directing agency to provide reunification services to other presumed father is affirmed where: 1) despite court's erroneous legal conclusion regarding section 361.5, the court did not abuse its discretion with this order; and 2) there was sufficient evidence to support the court's implied finding that reunification was in the children's best interests.

[08/19] In re Aaron D.
Termination of mother's parental rights to her two children is affirmed over claims of error that: 1) the juvenile court lacked jurisdiction over this case under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because Texas had jurisdiction over custody determinations involving the children and the California juvenile court did not contact the Texas court to resolve jurisdiction; 2) mother did not receive proper notice of the Welfare and Institutions Code section 366.261 selection and implementation hearing; and 3) the court erred in finding the children adoptable because of their special developmental needs, physical ailments, and psychosocial issues.

[08/19] In re David H.
Minor's removal from his mother's home is affirmed where there was substantial evidence that, at the time of a July 2007 hearing, the child faced a substantial risk of serious physical harm from mother because there was a substantial risk that mother would resort to physical violence in disciplining him.

[08/14] Lemons v. Bradbury
In an action brought by voters who signed a referendum, which sought a statewide vote on a legislative act establishing same-sex domestic partnerships, challenging the Oregon Secretary of State's procedures for verifying referendum petition signatures, denial of permanent injunctive relief for plaintiffs is affirmed where the Secretary's procedures for verifying sampled referendum petition signatures did not violate plaintiffs' equal protection and due process rights.

[08/12] Choin v. Mukasey
Russian native's petition for review of a decision denying her application for adjustment of status and ordering her removed is granted where: 1) the BIA erroneously interpreted the "as a result of the marriage of the nonimmigrant" language in INA section 245(d); 2) the plain language of section 245 is ambiguous; 3) nothing in the plain language of section 245(d) suggests that an application that was valid when submitted should be automatically invalid when a petitioner's marriage ends by divorce two years later; and 4) the statute also does not require the automatic removal of immigrants whose marriages end in divorce while their applications for adjustment of status are under agency consideration.

[08/11] Vale v. Avila
Grant of father's petition to return his children to Venezuela under the International Child Abduction Remedies Act is affirmed where the childrens' place of habitual residence was properly determined to be Venezuela, and the custody rights held by father under Venezuelan law were violated by mother's removal of the children to the US.

[08/08] Jonathan L. v. Superior Court of Los Angeles County
In a dependency proceeding involving the legality of, and restraints upon, home schooling in California, denial of motion requiring children to attend public or traditional private school is vacated and remanded where: 1) California statutes permit home schooling as a species of private school education; and 2) the statutory permission to home school may constitutionally be overridden in order to protect the safety of a child who has been declared dependent. (Opinion on rehearing)

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Bankruptcy Law

[08/19] In Re: Holland
A dispute in a bankruptcy case over which state's law should determine whether real property owned by debtor should be exempted from the bankruptcy estate is dismissed for lack of subject-matter jurisdiction where the district court's order ruling that Florida law applied and remanding to bankruptcy court, without deciding whether Florida law granted an exemption, was not a final order subject to appeal.

[08/18] In the Matter of: N A Flash Found. Inc.
In a bankruptcy case, refusal to avoid transfers made by debtor to one of its creditors just prior to its bankruptcy filing is affirmed where under state law, creditor was a beneficiary of a construction trust fund of which debtor was trustee, and would be entitled to full recovery of the funds transferred, even in a Chapter 7 proceeding.

[08/14] Tri-State Fin., LLC v. First Dakota Nat'l Bank
In a case arising out of the bankruptcy case of a former owner of an ethanol plant in South Dakota, which appellee purchased from the bankruptcy estate, bankruptcy court's grant of bank's motion for a prepayment penalty is reversed where: 1) bank failed to establish that South Dakota courts would decline to construe an ambiguity in a First Note against it; and 2) doing so, the note does not provide for the imposition of a prepayment penalty under any set of facts.

[08/14] Chartschlaa v. Nationwide Mutual Ins. Co.
In an action arising out of defendant-insurer's termination of its relationship with plaintiffs-former sellers of its insurance police, district court's denial of defendant's motion for judgment as a matter of law is reversed where the claims of former sellers belong to the bankruptcy estate of former insurance seller, and not to either of the plaintiffs.

[08/13] In re: W. Iowa Limestone, Inc.
In a case involving a dispute between a secured lender, who held a security interest in its debtor's inventory, and subsequent purchasers of that inventory, who left their purchased goods on the debtor's premises, over whose interest took priority when the debtor filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code, a ruling finding that the buyers did not have constructive possession of the goods under Iowa law is reversed where the buyers satisfied the requirements of being buyers in the ordinary course of business under state law, and thus giving them priority.

[08/13] In re Comdisco, Inc.
In a bankruptcy case, appeal of denial of claimants' motion to terminate a trust created as part of the reorganization plan is dismissed for lack of jurisdiction where the denial of termination was not a separable dispute subject to appeal as a final order.

[08/13] In re: HNRC Dissolution Co.
In a bankruptcy case involving an administrative expense claim filed by an insurer which provided insurance coverage to debtors during the pendency of their Chapter 11 bankruptcy proceedings, denial of the claim based on a holding that it does not constitute an "actual, necessary cost[] and expense[] of preserving the estate" as required by 11 U.S.C. section 503(b)(1)(A) is affirmed for the reasons stated by the district court judge.

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Probate Trusts

[08/13] Estate of Thottam
In a mediation matter relating to distribution of assets to the three children of the deceased, judgment is reversed where: 1) there is nothing in Evidence Code section 1123(c) requiring that an express agreement in writing permitting disclosure be contained in a settlement agreement; 2) the court erred in reading a timing requirement into section 1123(c); 3) the mediation and facilitation confidentiality agreement satisfied the exception to mediation confidentiality under section 1123(c); and 4) there was sufficient evidence before the court to establish the preliminary fact that a chart created at the mediation was a settlement agreement for purposes of section 1123(c).

[08/01] Estate of Molino
In probate proceedings involving appellant's claims that he had valid assignments entitling him to a percentage of respondents' inheritance, summary judgment against appellant is affirmed where: 1) the 1997 agreements were not enforceable as they were void as against public policy; and 2) appellant could not rely on ratification or laches to enforce the agreements.

[07/16] Perrin v. Lee
In a probate proceeding, denial of plaintiffs' section 21320 safe harbor petition for a determination that their proposed petition to invalidate two trust amendments would not be a contest within the meaning of a no contest clause in a trust is reversed where: 1) the trust did not explicitly state that a contest to an amendment would violate the no contest clause; and 2) the no contest clause was not incorporated by reference into the amendments.

[05/15] Miller v. Campbell
In a fees dispute brought by a law firm against the executor of an estate after the probate court refused to award a category of fees associated with services rendered for the executor's personal matters, grant of executor's motions in limine to exclude all evidence, resulting in dismissal of the case, is reversed where: 1) the doctrines of res judicata and collateral estoppel did not apply to bar the law firm's claim of fees against the executor personally; and 2) in light of the evidence, the trial court erroneously ruled that the evidence was insufficient, as a matter of law, to support the law firm's quantum meruit claim.

[05/13] Montegani v. Johnson
In a dispute over a decedent's estate involving revocable and irrevocable trusts, an order denying plaintiff's Probate Code section 21320 application based on her lack of standing for section 21320 relief is affirmed where, as part of its duty to oversee the administration of the estate and insure orderly administration of justice, the trial court properly concluded that plaintiff was no longer a beneficiary of the trusts at issue, and thus lacked standing to seek declaratory relief under section 21320.

[05/06] Estate of Herold
An order denying petitioner's safe harbor petition, which sought a declaration that his proposed "Petition for Information" would not amount to a will contest, is reversed and remanded where the trial court erred in finding that a no contest clause of the will was incorporated by reference into a trust.

[05/06] Estate of Coll-Monge v. Inner Peace Movement
In an action for trademark infringement and related claims, summary judgment for defendants-non-profits is reversed in part and remanded where: 1) the district court erred in holding that a non-profit corporation cannot be a related company whose use of the trademark is controlled by the mark's registrant; and 2) there remain disputed issues of fact regarding both the doctrine's applicability in this case, and the capacity in which testator registered the marks with the USPTO.

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Elder Law

[05/13] Cao v. Commonwealth of Puerto Rico
In an action wherein plaintiff sought recovery under 42 U.S.C. section 1983 for alleged constitutional violations along with several state law causes of action after she was removed from her home, made to undergo a psychological evaluation, and placed in a state institution for the elderly, dismissal of plaintiff's complaint is affirmed where: 1) the district court properly dismissed plaintiff's section 1983 claim as untimely; and 2) with no federal cause of action remaining, the district court acted within its discretion in declining to exercise supplemental jurisdiction over remaining state law claims.

[05/05] Miller v. Am. Airlines, Inc.
In a suit against American Airlines under the Age Discrimination in Employment Act (ADEA), summary judgment for defendants is affirmed where: 1) a collective bargaining agreement did not require that plaintiffs be offered positions of comparable pay past the retirement age; 2) a claim, that a supplement to the collective bargaining agreement governing the retirement of flight engineers was facially discriminatory, was not properly raised before the EEOC.

[03/11] Budnick v. Town of Carefree
In an action raising, inter alia, a claim that defendant-town violated the Fair Housing Amendments Act of 1988 (FHAA) by denying plaintiffs a Special Use Permit (SUP) to build a multi-level continuing-care retirement community in the town, summary judgment against plaintiffs on the FHAA claim is affirmed where plaintiff failed to establish a discrimination claim under any of the theories of disparate treatment, disparate impact, or a failure to make reasonable accommodations. Potential residents of a retirement community do not presently qualify as disabled under the FHAA simply because some of them will become disabled as they age.

[03/10] Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC
In an action brought by an insurer seeking a declaratory judgment regarding its duties to defend and indemnify defendants against claims in an Arkansas state court action, summary judgment determining such duties is affirmed where the district court did not err by deciding that: 1) the only claim in the underlying lawsuit covered under insurer's policy was an estate's breach of contract claim against nursing home facility owner; 2) insurer had a duty to defend and indemnify owner on that claim and therefore also a duty to defend it on all of the estate's claims against it; and 3) insurer had no duty to defend or indemnify appellant-employee of the nursing home's management company.

[02/15] Nat'l Union Fire Ins. Co. v. Crocker
Under Texas law, an insurer has no extra-contractual duty to notify an additional insured of available liability coverage and provide an unsought, uninvited, unrequested, unsolicited defense. Further, an insurer's actual knowledge that an additional insured has been served with process does not establish as a matter of law that the insurer has not been prejudiced by the additional insured's failure to notify the insurer of the receipt of process.

[02/08] Imwalle v. Reliance Med. Prods., Inc.
In an action claiming, inter alia, unlawful retaliation when 62-year-old plaintiff was fired three months after he filed a charge with the EEOC that alleged both age and national-origin discrimination, a judgment and an award of attorney's fees, costs, and interest for plaintiff are affirmed over claims that: 1) plaintiff failed to establish a prima facie case of retaliation or prove that defendant's proffered reason for terminating him was a pretext to hide retaliation; 2) a paralegal's fees and expenses to attend certain depositions were unnecessary and unreasonable; 3) billing descriptions were insufficient; and 4) plaintiff had only limited success on his various claims.

[01/25] Living Ctrs. of Texas, Inc. v. Penalver
In a wrongful death suit, a court of appeals judgment affirming a ruling in favor of plaintiff is reversed where a jury argument that compared defendant's lawyer's attempts to minimize damages to a World War II Nazi program, in which elderly and infirm persons were used for medical experimentation and killed, was improper and incurable.

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Property Law & Real Estate

[08/20] Mahdavi v. Superior Ct. of San Diego County
A court may not require a person who has been determined to be a vexatious litigant in prior litigation to seek leave of the court before he may file an appeal in a case in which he is the defendant.

[08/19] In Re: Holland
A dispute in a bankruptcy case over which state's law should determine whether real property owned by debtor should be exempted from the bankruptcy estate is dismissed for lack of subject-matter jurisdiction where the district court's order ruling that Florida law applied and remanding to bankruptcy court, without deciding whether Florida law granted an exemption, was not a final order subject to appeal.

[08/18] Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA
The Fair Debt Collection Practices Act's (FDCPA) bona fide error defense applies to mistakes of law, and is not limited to procedural or clerical errors. In an action claiming law firm and one of its attorneys violated the FDCPA when they used allegedly deceptive forms to notify her of a foreclosure on her home, summary judgment for defendants is affirmed where: 1) although defendants violated the FDCPA by instructing plaintiff that she had to dispute the debt in writing; nevertheless, 2) defendants qualified for the FDCPA bona fide error defense.

[08/15] County of Humboldt v. McKee
In an action by county to assess property taxes on defendants for parcels transferred to third party purchasers, decision in favor of defendants is reversed where: 1) subsequent to the adoption of the 1978 Guidelines, which set forth revised regulations governing agricultural preserves, the parties voluntarily renewed their contract numerous times; 2) the new contract created with each renewal incorporated the 1978 Guidelines; and 3) thus, the 1978 Guidelines can be applied constitutionally to a Williamson Act contract executed in 1977.

[08/14] Santiago-Lugo v. US
In a claim by plaintiff for return of seized but not forfeited property as barred by the statute of limitations, government's motion for summary affirmance is granted where: 1) the six-year limitations period under 28 U.S.C. section 2401(a) applies to Rule 41(g) claims; and 2) in circumstances where there has been a related criminal proceeding but no civil forfeiture proceeding, the cause of action accrues at the end of the criminal proceeding.

[08/13] Kempton v. City of Los Angeles
In a complaint against a city by plaintiff-homeowner requesting action to remove fences on neighbor's property, grant of motion for judgment on the pleadings without leave to amend in favor of defendant city is reversed with directions to grant plaintiffs leave to amend their complaint to allege a cause of action for nuisance where: 1) blocking a public sidewalk constitutes a public nuisance per se; 2) a private individual may bring an action against a municipality to abate a public nuisance when the individual suffers harm that is specially injurious to himself; and 3) even were a claim required in order to seek equitable relief, plaintiffs have met their burden of alleging facts in this claim which placed city on notice to adequately investigate the alleged nuisance.

[07/23] Thompson v. Toll Dublin, LLC
In a matter involving various fraud-related claims arising from the purchase of condominiums built and/or sold by defendants, denial of defendants' petition to compel arbitration and stay proceedings is affirmed where: 1) the arbitration agreement did not apply to plaintiffs' fraud-related claims; and 2) the arbitration provisions were, in any event, unconscionable and therefore unenforceable.

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