News

[07/03] Continental ordered to trial in Concorde explosion
[07/03] Florida Supreme Court nixes Indian casino pact
[07/03] Judge in Ky. gives panel 1 day in fen-phen trial
[07/02] Judge tells jury to deliberate in fen-phen trial
[07/02] Astra shares up 6 pct on Seroquel court ruling
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Articles

How to Resolve Disputes on the Road
We've all seen an irate traveler pounding his fist on the counter, face red and temples pulsing, screaming at the nearest available victim about his canceled flight, his shower's weak water pressure, or some other indignity. If your goal is merely to vent your anger, you might consider following his example. If, however, you want to actually resolve your problem, get a grip on your rage and start thinking strategically. Some time-tested principles will help you get results no matter what kind of problem crops up on your trip, from a lost suitcase to a canceled cruise.
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What to Expect: Small Claims or Conciliation Court
Most states have "small claims" or "conciliation" courts. These courts are set up to handle disputes up to a certain dollar amount (usually $1,500 to $9,000). If the amount of your claim against the defendant is under the dollar limit of the small claims court, you can file suit yourself (you don't need to hire a lawyer). It will take some time and energy on your part, but will save you some money on attorney fees.
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Case Summaries

[07/01] In re Cheyanne F. Order terminating the parental rights of a mother pursuant to Welfare and Institutions Code section 366.26 is affirmed over claims that the juvenile court erroneously omitted information required for notification forms under the Indian Child Welfare Act.

[06/30] Mardardo F. v. Superior Court (Yolo County Dep't of Employment and Social Serv.) For purpose of Welfare and Institution Code section 361.5(b)(4), the phrase "the parent or guardian of the child" refers merely to the parent's or the guardian's current status in the current dependency proceeding, and the phrase "the death of another child" in the section means the death of any other child. In this case, the juvenile court properly applied the statute in denying reunification service to a 28 year old father who murdered a 13-year old girl when he was 15.

[06/26] Florida Dep't of Children and Families v. H.D. Initial acceptance of review of the decision in H.D. v. Department of Child and Families, 964 So. 2d 818 (Fla. 4th DCA 2007) is reversed and the review proceeding is dismissed since jurisdiction was improperly granted.

[06/26] In re S.B. An order terminating the parental rights to a child under Welfare and Institutions Code1 section 366.26 is reversed and remanded where: 1) the terminated parent had a continuing beneficial relationship with the child within the meaning of the statutory exception to termination of parental rights; and 2) the juvenile court did not comply with the notice provisions of the Indian Child Welfare Act.

[06/23] In re R.J. Denial of a grandmother's request for de facto parent status is affirmed over claims that: 1) the juvenile court erred in denying her request without affording an evidentiary hearing; and 2) the error violated her right to procedural due process.
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[07/03] Tablada v. Thomas In a case involving whether the Bureau of Prisons (BOP) violated the Administrative Procedure Act (APA) in promulgating a regulation interpreting 18 U.S.C. section 3624(b), which governs the calculation of good conduct time for federal prisoners, the court finds that: 1) the BOP concededly violated the APA by failing to articulate a rational basis for its decision to promulgate the regulation; but 2) the remedy for the violation is to interpret the federal statute in accordance with the BOP's Program Statement 5880.28; and 3) the BOP's methodology for calculating good time credits under Statement 5880.28 was both reasonable and persuasive under applicable law.

[07/03] US v. Morriss Denial of a motion to suppress statements made outside the presence of counsel is affirmed over defendant's claims that: 1) the district court erroneously found his Sixth Amendment right to counsel did not attach during an interview in which he provided inculpatory statements; and 2) the government violated his due process rights by interviewing him during a lapse in representation.

[07/03] US v. Dodds Sentence for possession of child pornography is affirmed over claims that: 1) the district court failed to adequately consider relevant sentencing factors; and 2) defendant's due process rights were violated because the sentence was imposed after the government presented an inaccurate picture of relevant conduct.

[07/03] US v. Anderson A conviction for insider trading and money laundering is affirmed over claims of error that: 1) the government's evidence was insufficient to convict him, 2) the district court erred in failing to give his theory-of-the-case jury instruction; and 3) that he is entitled to a new trial. The sentence is affirmed over the government's claims of error that the sentence was unreasonable because the court erroneously excluded certain stock sales as relevant conduct when considering the U.S.S.G. for illegal insider training.

[07/03] US v. Feemster A reduction of defendant's sentence to 120 months from 240 months for knowingly and intentionally distributing crack cocaine is reversed and remanded where the district court: 1) considered irrelevant factors; 2) failed to explain its unusually lenient sentence with sufficient justifications to support the degree of the variance; and 3) thus committed procedural error and abused its discretion.
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[07/03] Crowley Marine Servs. Inc. v. Maritrans Inc. In an action arising out of the collision of plaintiff's tug boat with defendants' oil tanker, a district court's reallocation of fault in the matter is affirmed where: 1) the district court did not err in considering the coordinated nature of the tug escort, the tug boat's violations of Rules 5 and 17(b), or the negligence of both plaintiff and the tug's captain; and 2) it did not err in apportioning 70% of the responsibility for the collision to the tug boat.

[07/03] Sherman v. Winco Fireworks, Inc. In an action arising from an accident with fireworks, order granting defendant-fireworks manufacturer leave to amend and remand for a new trial on the plaintiffs' failure-to-warn claim in addition to plaintiff husband's pendent consortium claim is reversed in part where: 1) the district court did not apply the good-cause standard in ruling on motion to amend; 2) and the district court abused its discretion in allowing the amendment; 3) and the error was not harmless as it significantly affected plaintiffs' claims.

[07/02] Anderson v. Commerce Construction Services, Inc. In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] Allen v. Brown Clinic, P.L.L.P In a medical malpractice suit, jury verdict for defendant-doctor is affirmed over claims that the district court erred when it denied his motion to exclude for cause: 1) all jurors who had ever received medical treatment at a particular clinic or with a particular doctor; 2) all jurors who had family members who had been treated at the clinic or by the doctor; and 3) two jurors who had relatives with connections to the defendants. A claim that the district court erred in denying a motion to exclude defendants' medical expert is also rejected.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.
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[07/03] State Comp. Ins. Fund v. WCAB The California Supreme Court finds that the Legislature intended to require employers to conduct utilization review when considering requests for medical treatment, and employers may not use Labor Code section 4062 as an alternative method for disputing employees' treatment requests.

[07/02] Sgro v. Danone Waters of N. Am., Inc. In an ERISA action arising from a denial of plaintiff's claim for disability benefits, dismissal of plaintiffs' claims is affirmed in part and vacated in part where: 1) dismissal of state law claims was proper as defendant's disability plan is governed by ERISA, but the dismissal should have been without prejudice; 2) a California insurance regulation does not require defendants to reimburse plaintiff for the cost of copying the medical records that defendant-insurer/administrator requested, as that regulation is preempted by ERISA; 3) defendants did not violate ERISA's regulation on "claims procedures" by requiring documentation from plaintiff regarding his claim; and 4) a remand was required in part as to dismissal of a claim that defendants violated ERISA section 1132(c)(1) for failing to turn over certain documents.

[07/02] Wakkinen v. UNUM Life Ins. Co. of Am. In an ERISA action, summary judgment for defendant upholding its denial of long-term disability benefits under an employer-offered plan is affirmed where substantial evidence supported plan administrator's finding that claimant was not "continuously disabled" through the 180 days of his elimination period as defined within the policy in dispute.

[06/30] Stamp v. Metropolitan Life Ins. Co. Plan administrators of an employee benefits plan governed under ERISA may reasonably conclude that an insured, killed in a one-car collision with a tree while driving with BAC of 3 times the legal limit, did not die as a result of an "accident" for purposes of his Accidental Death and Dismemberment life insurance policies.

[06/27] Assoc. Indus. of Kentucky, Inc. v. U.S. Liab. Ins. Group In an action for declaratory judgment as to whether defendant had a duty to defend plaintiff against several lawsuits in state court and a duty to cover any liabilities that might arise from the lawsuits, summary judgment for defendant is affirmed where defendant had not duty to defend any lawsuits arising from the offering of an insurance program due to an exclusion in the contract between the parties.
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[07/03] City of Jefferson City v. Cingular Wireless LLC A declaratory judgment finding a wireless service provider of telecommunication services subject to local business taxes is affirmed where: 1) city's request for declaratory judgment on the issue of tax liability was properly before the district court and 2) a cell phone is a telephone and cell phone services are telephonic services for purposes of the city's tax ordinance.

[07/02] Deckers Corp. v. US In a suit contesting the proper classification of three styles of sports sandals under the Harmonized Tariff Schedule of the United States, a decision holding that the merchandise was properly classified under subheading 6404.19.35 is affirmed where the sandals at issue have open toes and open heels, and lack the features of the named exemplars of 6406.11.80, and thus the imported goods are not classifiable under that subheading notwithstanding their claimed status as athletic footwear.

[07/02] Nick's Cigarette City, Inc. v. US In a suit seeking a refund of federal corporate income taxes for certain years, dismissal of the complaint for lack of jurisdiction is affirmed where: 1) plaintiff did not properly file a refund claim with the IRS so as to satisfy the requirements of Treasury Regulation 301.6042-2(b)(1); 2) the IRS did not consider the claims on the merits and the letter sent to the plaintiffs made it clear that the denial was based on procedural grounds; 3) although the denial letter failed to adequately explain the reasons for denial, that did not excuse plaintiff's failure to file a properly detailed refund claim; and 4) the government did not waive its right to insist on the specificity requirements.

[07/01] Donell v. Kowell In a suit arising to recover gains made by defendant, an innocent investor, from a Ponzi scheme, a judgment requiring him to disgorge his profits as fraudulent transfers under the Uniform Fraudulent Transfer Act is affirmed where the circuit court: 1) adopted the largely uniform analysis used for applying the UFTA to allow recovery from investors in a Ponzi scheme, and describes a two-step process for determining the existence and amount of liability; 2) found there was no error in the district court's application of such analysis; 3) rejected arguments that courts should not be allowed to require innocent investors to disgorge net profits; and 4) declined to permit good faith investors to claim offsets for taxes or other expenses paid in connection with receipt and management of income from a Ponzi scheme.

[07/01] Kawashima v. Mukasey Japanese natives' petitions for review of removal orders are granted in part where: 1) under circuit precedent, because the statutes to which petitioners pled guilty to violating do not require proof of any particular monetary loss, the circuit court does not examine the record of their convictions to determine whether they necessarily pled guilty to causing a loss in excess of $10,000; and 2) the government failed to show that petitioners' convictions are aggravated felonies under the categorical approach, and thus they are not removable. (Superseding opinion)
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[07/02] Deckers Corp. v. US In a suit contesting the proper classification of three styles of sports sandals under the Harmonized Tariff Schedule of the United States, a decision holding that the merchandise was properly classified under subheading 6404.19.35 is affirmed where the sandals at issue have open toes and open heels, and lack the features of the named exemplars of 6406.11.80, and thus the imported goods are not classifiable under that subheading notwithstanding their claimed status as athletic footwear.

[07/02] Cavin v. Home Loan Ctr., Inc. In a suit involving a mailer sent by defendant announcing its mortgage program and claiming that defendant violated the Fair Credit Reporting Act by failing to present plaintiffs' with a firm offer of credit, summary judgment for defendant is affirmed where: 1) the letter at issue presented a firm offer of credit, despite the absence of some material terms and the minimal number of consumers who obtained the loan; and 2) thus, defendant did not violate the FCRA.

[06/30] Waltrip v. Kimberlin In a priority dispute between competing liens, by a judgment creditor and debtor's attorney, over settlement proceeds, judgment finding the judgment lien had priority over the attorney lien is reversed and remanded where: 1) the creditor had a lien which did not cover commercial tort claims while the settlement proceeds at issue stemmed from commercial tort claims; 2) the attorney lien was created by the retainer agreement between plaintiffs and counsel, and it was created before creditor filed a notice of lien in the pending action; and 3) the notice of lien did not relate back to prior liens, as those liens covered different property.

[06/26] Morgan Stanley Capital Group Inc. v. Pub. Util. Dist. No. 1 of Snohomish County In a case involving wholesale-energy contracts and the Mobile-Sierra doctrine under which the FERC must presume that the rate set out in a freely negotiated wholesale-energy contract meets the "just and reasonable" requirement imposed by law, judgment granting petitions for review of FERC decisions upholding certain contracts is affirmed where: 1) contrary to the Ninth Circuit's view, the FERC was required to apply the Mobile-Sierra presumption in evaluating the contracts in this case and the FERC may abrogate a valid contract only if it harms the public interest; 2) the Ninth Circuit's "zone of reasonableness" test, used to evaluate a buyer's rate-challenge, fails to accord an adequate level of protection to contracts; but 3) nevertheless, two flaws in the FERC's analysis provided alternate grounds for affirmance.

[06/26] Absher v. Autozone, Inc. Civil Code section 1747.08, which prohibits merchants from obtaining personal identification information from credit card users, does not apply to a refund for the return of merchandise purchased by credit card.
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[06/25] Plains Commerce Bank v. Long Family Land & Cattle Co. In a discrimination, breach of contract, and bad faith suit brought in Tribal Court by an Indian couple against a non-Indian bank, which sold land that it owned, and had previously leased to plaintiffs, on a tribal reservation to non-Indians, judgment and award for plaintiffs is reversed where the tribal court lacked jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank's sale of fee land it owned.

[06/20] California Nat'l Bank v. Woodbridge Plaza LLC In an appeal involving interpretation of a provision dealing with calculation of rent for the extended term of plaintiff's lease of premises owned by defendant, a judgment in favor of defendant is affirmed where: 1) the provision, interpreted from the parties' mutual intent at the time of contracting, was intended as a rent cap based on rent paid by a "financial institution" occupying a defunct bank's premises; and 2) because non-bank tenants were not the "successors" anticipated by the contract, their rent could not be used as a factor for calculating plaintiff's new rent, which is instead subject to the "then prevailing rate" as defined by the lease.

[06/12] 936 Second Avenue L.P. v. Second Corporate Dev. Co., Inc. In a lease dispute involving the issue of whether the net lease itself must be considered by appraisers in valuing the demised premises for purposes of establishing the net rent for a renewal term of the lease, the Court of Appeals rules that, because the net lease does not exclude its consideration, it must be taken into account in valuing the property.

[05/06] In the Matter of IG Second Generation Partners L.P. v. New York State Div. of Hous. and Cmty. Renewal In an appeal addressing whether the Division of Housing and Community Renewal (DHCR) had the authority to cancel rent arrears owed by a rent-stabilized tenant as a result of DHCR's resolution of an unusually protracted fair market rent appeal, the court of appeals rules that DHCR did not have the authority under the circumstances of this case.

[05/01] P.A. Bldg. Co. v. City of New York In a landlord-tenant dispute involving whether asbestos abatement costs incurred by the landlord were "operating expenses" under the relevant terms of a commercial lease, judgment for landlord awarding additional rent due including amount of interest accrued is reversed and remanded where: 1) the underlying asbestos abatement costs were not "operating expenses" within the meaning of "escalation provisions" in the lease agreement; and 2) the interest amount on additional rent due should have been calculated from the date which an audit resisted by the landlord was finally commenced.
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[07/03] Jacob v. West Bloomfield In a suit brought under 42 U.S.C. section 1983 alleging a violation of plaintiff's Fourth Amendment rights when defendant entered plaintiff's property without a warrant to inspect the property for criminal violations of a land use ordinance, denial of summary judgment for defendant is affirmed where: 1) the purpose of the government intrusion was not merely administrative but also bore the threat of criminal sanctions; and 2) the fact that plaintiff did not endure an even more intrusive search does not obviate the Fourth Amendment's requirement that, absent exigent circumstances, officials may not conduct criminal investigations within the curtilage of a person's home without a warrant.

[07/03] MLC Automotive, LLC v. Town of Southern Pines In a suit alleging that the rezoning of a certain piece of real estate violated plaintiff's common law vested rights in the property and its federal and state substantive due process rights, denial of defendants' Rule 60(b) motion is affirmed where: 1) defendant-town's Rule 60(b) motion was filed within ten days of the original judgment, called into question the correctness of the judgment, and is properly construed as a Rule 59(e) motion; 2) the district court did not abuse its discretion in concluding that Burford abstention was appropriate because the case involved difficult issues of state land use policy.

[07/02] Jamison v. Jamison A party is precluded from challenging the adequacy of an owelty award on appeal when it fails to timely move for a new trial on that issue.

[07/02] Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina In a medical malpractice case against defendant-hospital presenting the issue of whether an Asset Purchase Agreement entered between past and present owners of the hospital absolved the current owner's liability for acts or omissions by the hospital's previous owners and/or operators, the circuit court finds that the terms of the asset purchase agreement not only could, but did, absolve the present owners from liability.

[07/02] Cavin v. Home Loan Ctr., Inc. In a suit involving a mailer sent by defendant announcing its mortgage program and claiming that defendant violated the Fair Credit Reporting Act by failing to present plaintiffs' with a firm offer of credit, summary judgment for defendant is affirmed where: 1) the letter at issue presented a firm offer of credit, despite the absence of some material terms and the minimal number of consumers who obtained the loan; and 2) thus, defendant did not violate the FCRA.
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[07/03] State Comp. Ins. Fund v. WCAB The California Supreme Court finds that the Legislature intended to require employers to conduct utilization review when considering requests for medical treatment, and employers may not use Labor Code section 4062 as an alternative method for disputing employees' treatment requests.

[07/03] BNSF Ry. Co. v. Swanson Provisions of Minnesota Statute sections 609.849(a)(1) and (a)(2), governing a railroad's treatment of injured workers, are both preempted by the Internal Control Plans regulations adopted by the Federal Railroad Administration pursuant to the Federal Railroad Safety Act.

[07/02] Anderson v. Commerce Construction Services, Inc. In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] Wakkinen v. UNUM Life Ins. Co. of Am. In an ERISA action, summary judgment for defendant upholding its denial of long-term disability benefits under an employer-offered plan is affirmed where substantial evidence supported plan administrator's finding that claimant was not "continuously disabled" through the 180 days of his elimination period as defined within the policy in dispute.

[06/23] Barr v. WCAB The Workers' Compensation Appeals Board has the discretion to award costs for preparing a vocational rehabilitation consultant's report, regardless of whether or not the report itself is admissible as evidence under Labor Code section 5703.
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[06/30] MICHAEL J. v. THE SUPERIOR COURT OF ORANGE COUNTY (ROGERS) The conservator of the person and the estate of a mentally disabled person who is unable to communicate her wishes does not have the power to initiate and prosecute a petition for the dissolution of her marriage.

[03/12] E. ARMATA, INC. v. KOREA COMMERCIAL BANK OF NEW YORK Under the Perishable Agricultural Commodities Act (PACA), a bank is not liable to the beneficiaries of a PACA trust for receipt of funds in breach of the trust where, having extended revolving overdraft privileges to a produce dealer covered by PACA, the bank routinely applied deposited PACA funds to reduce the negative balance in the produce dealer's overdrawn account.

[03/12] E. ARMATA, INC. v. KOREA COMMERCIAL BANK OF NEW YORK Under the Perishable Agricultural Commodities Act (PACA), a bank is not liable to the beneficiaries of a PACA trust for receipt of funds in breach of the trust where, having extended revolving overdraft privileges to a produce dealer covered by PACA, the bank routinely applied deposited PACA funds to reduce the negative balance in the produce dealer's overdrawn account. (Amended opinion)

[03/11] AM. BANANA CO., INC. v. REPUBLIC NAT'L BANK OF NEW YORK, N.A. A failure to reduce to writing an agreement that violates the Perishable Agricultural Commodities Act (PACA) should not result in the preservation of the PACA trust where the same agreement, if memorialized, would have resulted in forfeiture of such protection. Because plaintiffs forfeited trust protection, defendant-bank has a complete defense to PACA liability; judgment for plaintiffs is reversed.

[02/19] ESTATE OF STODDART Probate court's orders, denying claim of niece of decedent husband to a portion of trust of decedents husband and wife under the laws of intestacy and ordering that the trust be distributed to the estate of decedent wife, are affirmed. The law in effect at the time the probate court made its orders applies to the issues raised in this case on appeal.
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