Case Summaries

Family Law

[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.

[06/19] In re Jorge G.
Juvenile court's jurisdictional and dispositional order removing a child from parental custody is vacated and remanded where the juvenile court properly invoked temporary emergency subject matter jurisdiction under Family Code section 3424, subdivision (a), but the service of notice to the child's parents in Mexico was improper under either Mexican or California law.

[06/18] In re Kristen B.
Juvenile court's jurisdictional and dispositional findings from parental custody proceedings are affirmed over claims that: 1) minor received ineffective assistance of counsel when the minor's counsel was impermissibly argumentative and undermined the minor's credibility on direct examination; and 2) the duty of loyalty prohibits a minor's attorney, whose position diverges from that of his or her client, from calling the minor as a witness.

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Bankruptcy Law

[07/03] Gen. Elec. Capital Corp. v. Future Media Prods., Inc.
In an appeal brought by an oversecured creditor in a bankruptcy matter, an order denying the creditor default interest and attorney's fees is reversed and remanded where: 1) the bankruptcy court improperly applied the circuit court's rule from In re Entz-White Lumber and Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), to the facts of this case; and 2) the bankruptcy court should apply a presumption of allowability for the contracted for default rate, "provided that the rate is not unenforceable under applicable non-bankruptcy law."

[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.

[06/26] Chase Manhattan Mortgage Corp. v. Shapiro
In bankruptcy proceedings, judgment rejecting a bankruptcy court's decision that the earmarking doctrine did not apply to a new mortgage as a preferential transfer and that the estate was diminished by the perfection of the new mortgage is reversed where: 1) the trustee established the elements of an avoidable preference set forth in section 547; 2) plaintiff was not a "new creditor" which precluded it from invoking the earmarking doctrine since it refinanced its own loan with debtor; and 3) the lapsed perfection of the original mortgage and plaintiff's late perfection of the new mortgage diminished debtor's estate.

[06/25] Cent. Valley AG Enters. v. US
In a bankruptcy appeal involving debtor's objection to a government tax claim, dismissal of the action is reversed where: 1) the district court erred in ruling that the statutory res judicata provision in 11 U.S.C. section 505(a)(2)(A) deprived it of subject matter jurisdiction to review the tax treatment of any partnership item that has been administratively determined by the IRS and has become final pursuant to the Tax Equity And Fiscal Responsibility Act of 1982 (TEFRA); and 2) 11 U.S.C. section 505(a)(1) grants the district court subject matter jurisdiction to review the tax treatment of debtor's partnership items, notwithstanding TEFRA.

[06/25] AG Capital Funding Partners v. State Street Bank and Trust Co.
In an action alleging breach of contract, violation of federal Trust Indenture Act, breach of fiduciary duty, and negligence based on defendant's alleged failure to deliver debt transaction registration statements required to secure a debt, the court of appeals finds that: 1) plaintiffs' contract and Trust Indenture Act claims were barred by a release previously executed by plaintiffs as part of a bankruptcy settlement and that no fiduciary duties existed; however; 2) because negligence claims were not barred by the release and there were issues of fact as to whether defendant owed and violated a duty of care, plaintiffs' cause of action for negligence is reinstated.

[06/25] Tidewater Fin. Co. v. Kenney
In a Chapter 13 bankruptcy proceeding, an order confirming the debtor's Chapter 13 bankruptcy plan is reversed and the case remanded for further proceedings where: 1) the parties are left to their contractual rights and obligations and a creditor may pursue an unsecured deficiency claim under state law after a debtor satisfies the requirements for plan confirmation under section 1325(a)(5)(C) by surrendering his 910 vehicle; and 2) the circuit court joints the Seventh Circuit Court of Appeals in further recognizing that such unsecured debt need not be paid in full any more than other unsecured debts, but it cannot be written off in toto while other unsecured creditors are paid some fraction of their entitlements.

[06/24] In Re: Mansaray-Ruffin
A debtor in a Chapter 13 bankruptcy case did not invalidate a lien on her property by providing for it as an unsecured claim in her confirmed plan, without initiating an adversary proceeding as required by the Federal Rules of Bankruptcy Procedure.

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Probate Trusts

[06/26] Murphy v. Murphy
A probate court judgment finding plaintiff entitled to a constructive trust over one-half interest of decedent's real and personal property existing on the date of his death is reversed on collateral estoppel grounds where: 1) prior to the decedent's death, a probate court previously issued an order on behalf of decedent, authorizing the decedent's conservator to execute a living trust and pour-over will to implement an estate plan which effectively disinherited plaintiff; and 2) a careful balance of all the relevant factors supported that principles of collateral estoppel should serve to bar plaintiff's subsequent causes of action.

[06/25] Safai v. Safai
In a case involving a dispute over whether a minor's actions triggered the "no contest clause" contained in a trust instrument, the court of appeals finds that the minor's act of signing the "minor's consent" portion of an ex parte application for appointment of guardian ad litem did not equate to "voluntarily" participating in a trust contest, an act which a minor is legally incapable of pursuing by their own volition.

[06/24] IN Funeral Directors Ins. Trust v. Benefit Actuaries, Inc.
In a suit alleging violation of fiduciary duties under ERISA and breaches of common law duties to plaintiff by providing it with bad advice and failing to recommend measures that would stave off insolvency, judgment for defendant is affirmed where: 1) plaintiff did not provide evidence that defendants promised to administer the Trust in accordance with certain state law or that defendants knew the Trust would rely on it to follow the Michigan statute; 2) plaintiff failed to show that defendant assumed a duty to provide actuarial advice; 3) defendant did not breach a duty by failing to advise trustees about the risk of raising the specific stop loss deductible and about the Trust's poor financial situation; and 4) defendant did not breach a duty by failing to recommend that the Trust maintain adequate reserves.

[06/20] Talbot v. Hustwit
Judgment entered against defendants on a guaranty agreement after lender foreclosed on real property securing a loan made to a trust structured by defendants is affirmed where: 1) case law has uniformly held the requirements for a deficiency judgment under Code of Civil Procedure 580a inapplicable to guarantors; and 2) considering the manner in which defendants structured the trust arrangement to detach from debts owed by the trust, there was ample basis for finding them not principal obligors to the loan, but true guarantors.

[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.

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Elder Law

[06/30] Sanders v. Lawson
The attorney's fees provision of the Elder Abuse Act does not authorize the award of trustee fees as costs.

[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

[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.

[07/01] Pesnell v. Arsenault
In a matter arising from a dispute with the government over ownership of two million acres of land in California, raising RICO and other constitutional claims, Rule 12(b)(6) dismissal of plaintiff's action against federal employees as procedurally barred is reversed where: 1) district court erred in dismissing all of plaintiff's claims on the basis of the judgment bar rule; and 2) the circuit court's opinion in a prior Arizona action did not resolve the issue of timeliness. However, denial of a motion to recuse the district judge is affirmed. (Superseding opinion)

[06/30] Christian v. Flora
When parcels in a subdivision are re-subdivided by a subsequent parcel map and recorded in compliance with the Subdivision Map Act (Map Act), the new parcel map amends the provisions of any previously recorded parcel map made in compliance with the Map Act.

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