Case Summaries

Family Law

[10/10] Lamour v. Peake
Denial of a request to reopen a claim for survivor benefits as the spouse of a veteran is vacated and remanded where the issue of whether claimant and decedent had a valid marriage was not considered with application of the "deemed valid" criteria in the relevant regulation, and since this aspect was the sole basis of the rejection of claimant's petition to reopen her claim.

[09/30] M.V. v. Superior Court of California
In a family law matter brought by mother seeking reunification with her infant after her incarceration and deportation for engaging in consensual sexual intercourse with a 15-year old boy, petition for a writ of mandate directing the trial court to vacate its order and to issue a new and different order continuing reunification services to a 12-month review is affirmed where the court erred in terminating reunification services and setting a .26 hearing by applying the 12-month review standard pursuant to section 366.21, subdivisions (f) and (g), instead of the six-month review standard pursuant to section 366.21, subdivision (e).

[09/25] In Re: Amendments to Fla. R. Juv. P.
Recommended amendments to the Rules of Juvenile Procedure to conform the rules and forms to recent legislation are adopted with a sixty-day comment period.

[09/25] US v. Kerley
Conviction for failure to pay a child support obligation is vacated and remanded where: 1) the district court did not err in its rulings as to the good faith defense; 2) the rule of lenity required the court to vacate the conviction on the second count of the offense; and 3) although the district court correctly applied the loss amount and obstruction of justice enhancements under the Sentencing Guidelines, the court erred in concluding that the vulnerable victim enhancement was applicable.

[09/23] In re Shane G.
Juvenile court judgment terminating parental rights to minor son is affirmed over claims of error that: 1) evidence was insufficient to support the court's finding the beneficial parent-child relationship and beneficial sibling relationship exceptions did not apply to preclude terminating their parental rights; and 2) reversal is required because the court failed to ensure proper notice under the Indian Child Welfare Act (ICWA).

[09/17] Carmona v. Carmona
In an ERISA battle between the eight and ninth wives of a deceased pension holder, judgment in favor of defendant is affirmed in part and reversed in part because a plan participant's retirement vests Qualified Joint and Survivor Annuity (QJSA) interests in the spouse at time of retirement, cutting off an alternative payee's ability to subsequently obtain a qualified domestic relations order changing the plan's beneficiary.

[09/17] Amanda H. v. Superior Court
Mother's petition for extraordinary writ is granted where the Los Angeles County Department of Children and Family Services (DCFS) did not prove by clear and convincing evidence that it had provided reasonable reunification services.

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Bankruptcy Law

[10/06] In Re Engage, Inc.
In a bankruptcy matter, questions on attorney's lien statute are certified where there was no controlling precedent and where the questions were determinative of the pending cause of actions. Certified questions are: 1) Does chapter 221, section 50 of the Massachusetts General Laws grant a lien on patents and patent applications to a Massachusetts attorney for patent prosecution work performed on behalf of a client? and 2) If chapter 221, section 50 of the Massachusetts General Laws does grant a lien and the issued patents or patent applications are sold, does the attorney's lien attach to the proceeds of the sale?

[10/06] In Re High Voltage Eng'r Corp.
In a bankruptcy matter, dismissal of trustee-plaintiff's claim is affirmed where: 1) the trustee filed his notice of appeal in the wrong set of cases; and 2) the misdirected filing deprived the district court of jurisdiction to modify, vacate, or rescind the fee awards.

[10/06] Gray v. Evercore Restructuring LLC
In a bankruptcy matter alleging gross negligence and breach of fiduciary duty for formulating and promoting an unworkable restructuring plan to the bankruptcy courts, judgment in favor of defendants is affirmed over claim that the district court erred in dismissing complain on in pari delicto defense grounds.

[10/03] Ameriquest Mortgage Co. v. Nosek
In a bankruptcy matter, award of $250,000 for emotional distress and $500,000 in punitive damages for plaintiff mortgage company's violations of 11 U.S.C. section 1322(b)is vacated where there was no violation of either the Bankruptcy Code or defendant's plan.

[10/02] Espinosa v. United Student Aid Funds, Inc.
In a case regarding discharge of student loan debt in Chapter 13 bankruptcy, the Court reverses a district court order reversing the bankruptcy court's order enforcing the discharge injunction where: 1) student loan debt cannot be discharged in Chapter 13 bankruptcy absent a showing of undue hardship; and 2) the debtor made no showing of undue hardship in an adversarial proceeding; but 3) the creditor was notified by the trustee of the discharge plan and period for contesting the claimed amount; and 4) the creditor failed to contest the claim before the discharge plan became final under 11 U.S.C. section 1327(a).

[10/01] California Coastal Comm'n. v. Allen
Order for sale of dwelling is affirmed where: 1) the trial court was not required to resolve the procedural challenges to the assignment in this proceeding for an order for sale, since the applicable statutory requirements for acknowledgment of assignment were met; 2) the evidence supported the conclusion that defendant was not entitled to a homestead exemption; and 3) there was no evidence that the judgment liens underlying the writ of execution were discharged in bankruptcy.

[09/12] In the Matter of Soza
In a bankruptcy case, approval of an exemption from the bankruptcy estate for an annuity purchased by debtors one day prior to filing their bankruptcy petition is reversed and remanded where: 1) the purchase of the annuity was not an intentional fraud upon creditors, but the state exemption statute would apply a standard set at something less than intent to defraud to determine whether an exemption should be allowed; and 2) several "badges of fraud" were evident in the purchase, and under the totality of circumstances, the transaction represented a payment made in fraud of a creditor. (Revised opinion)

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Probate Trusts

[10/09] Estate of Felder
In a property matter in which objector sought the deposit he paid as a defaulting purchaser of real property owned in part by the estate, probate court order is affirmed where the probate court properly allowed the estate to retain the entirety of objector's $48,000 deposit as damages under Probate Code section 10350 subdivision (e).

[10/01] Haneline Pacific Properties, LLC v. May
Grant of defendant's anti-strategic lawsuits against public participation (SLAPP) motion is reversed and remanded where: 1) the gravamen of plaintiff's complaint did not relate to contemplated litigation but attempted at persuasion and negotiation between co-owners of property regarding how best to manage their property; 2) because the communications at issue were not covered by the litigation privilege, the anti-SLAPP motion should not have been granted; and 3) plaintiffs failed to develop an argument regarding entitlement to attorney's fees based on finding that anti-SLAPP motion was "frivolous" or "intended to cause unnecessary delay".

[10/01] Gustafson v. zumBrunnen
In a suit alleging negligence and tortious interference against a bank and an attorney for allowing the withdrawal of funds from a bank account that should have been part of a decedent's estate, dismissal for lack of federal diversity jurisdiction is affirmed where: 1) under 28 U.S.C. section 1332(c)(2), the legal representative of an estate suing on its behalf is a citizen of the same state as the decedent; 2) more than one person may be considered a legal representative of an estate for 1332(c)(2) purposes; and 3) under the applicable state law, a suit to bring property into an estate by someone other than the estate's representative was permissible only if the representative had failed to act to secure the property for the estate.

[09/14] Dummar v. Lummis
In a case involving the estate of the late billionaire Howard Hughes alleging that defendants deprived plaintiff of his inheritance by conspiring to cause a jury to reject a Holographic Will in 1978, dismissal of plaintiffs' claims is affirmed where: 1) fraud and federal RICO claims were each time-barred; 2) a Nevada RICO claim failed to state a claim; and 3) an unjust-enrichment claim was barred by issue preclusion.

[09/12] Estate of Kievernagel
In a suit by widow for use of her late husband's frozen sperm to attempt to conceive a child despite signed agreement by late husband to discard sperm upon his death, judgment denying distribution of sperm to widow is affirmed where determining the disposition of gamete material, to which no other party contributed and thus another party's right to procreational autonomy is not implicated, the intent of the donor must control.

[09/04] Masry v. Masry
In a probate matter, judgment finding that husband's revocation from joint trust was valid is affirmed where: 1) the revocation provision in the trust was not explicitly exclusive; and 2) husband's method of revocation complied with Probate Code section 15401, subdivision (a)(2).

[08/27] Estate of Clementi
Denial of petition to revoke probate is affirmed where: 1) the deceased manifested a sufficient intent to create a charitable trust through his will, although his will does not identify a specific charity; and 2) the deceased's stated intent to "give the balance of my assets to a charitable foundation or trust" is sufficient to create the trust.

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Elder Law

[09/30] Wood v. Jamison
In a malpractice action brought by the trustee of 78-year old decedent for defendant-attorney's role in performing legal services for client who convinced decedent that he was her nephew, judgment for damages, attorney's fees and costs based on legal malpractice, breach of fiduciary duty and financial abuse of an elder is affirmed where: 1) defendant failed to advise decedent of a conflict of interest; 2) defendant failed to advise decedent the investment was not appropriate for her, or at least to refer her to an independent investment advisor; and 3) defendant obtained an undisclosed profit from the transaction.

[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.

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Property Law & Real Estate

[10/10] Andrews v. Columbia Gas Transmission Corp.
In a diversity case against defendant-corporation Columbia Gas, judgment in favor of defendant is affirmed over claims of error that: 1) the magistrate judge incorrectly construed the right of way agreement as granting defendant a fifty-foot easement to operate and maintain each of its pipelines on plaintiffs' property; 2) the doctrines of laches, estoppel, and waiver, as well as the statute of limitations, precluded defendant from clearing the right of way forty years after the trees were planted; 3) plaintiffs were entitled to damages for the removed trees; and 4) the district court erred in denying plaintiffs' motion for additional time to serve a jury demand.

[10/10] Grace Cmty. Church v. Lenox Township
In action filed by plaintiff-church after defendant-planning commission revoked a land use permit, dismissal of plaintiff-church's action is affirmed where the action was not ripe, as the plaintiff failed to exhaust administrative remedies and obtain a final decision before filing suit.

[10/09] Secrest v. Sec. Nat'l Mortgage Loan Trust
Judgment declaring valid a notice of default and election to sell under a deed of trust is affirmed where: 1) an agreement by which a lender agreed to forbear from exercising the right of foreclosure under a deed of trust securing an interest in real property comes within the statute of frauds; and 2) the borrowers in this case failed as a matter of law to establish estoppel to assert the statute of frauds.

[10/09] Estate of Felder
In a property matter in which objector sought the deposit he paid as a defaulting purchaser of real property owned in part by the estate, probate court order is affirmed where the probate court properly allowed the estate to retain the entirety of objector's $48,000 deposit as damages under Probate Code section 10350 subdivision (e).

[10/09] Stonehouse Homes v. City of Sierra Madre
In a property matter in which plaintiff-developer and property-owner's application to develop a portion of its property was denied by defendant-city, order of dismissal is affirmed where the complaint did not adequately allege an actual and present controversy and declaratory relief was not appropriate.

[10/08] Schwarz v. City of Treasure Island
In a claim brought under the Fair Housing Act (FHA) alleging that defendant-city's occupancy-turnover rule against plaintiff-halfway houses amounted to disparate treatment, disparate impact, and a failure to reasonably accommodate the disabled, summary judgment in favor of defendant-city is affirmed in part, vacated in part, and remanded where: 1) plaintiffs presented no evidence of differential treatment of the handicapped or of disparate impact on the handicapped; 2) requiring defendant-city to allow high turnover at the properties located within the specified zones would not be a "reasonable" accommodation; and 3) a genuine issue of material fact may exist about whether living in the halfway houses was "necessary" to afford recovering substance abusers an "equal opportunity to use and enjoy" the halfway houses.

[08/29] Kerlin v. Sauceda
In a suit alleging that defendant defrauded plaintiffs of oil and gas royalties and other interests in Padre Island, judgments for plaintiffs are reversed as time-barred where: 1) plaintiffs could have discovered defendant's wrongdoing through reasonable diligence and were not entitled to tolling of the running of limitations on that basis; and 2) defendant was present in the state, by virtue of doing business there, during all of the alleged wrongdoing, and statutory tolling therefore did not apply. (Revised opinion)

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