Table of Contents | Torres v. Design Group Facility Soultions, Inc. Civil Procedure, Construction Law, Personal Injury | Soto v. Union Pacific Railroad Co. Civil Procedure, Personal Injury, Real Estate & Property Law, Transportation Law | Alliance for Constitutional etc. v. Dept. of Corrections etc. Constitutional Law, Criminal Law, Government & Administrative Law | California v. Marcus Constitutional Law, Criminal Law | In re E.F. Constitutional Law, Education Law, Juvenile Law | Travelers Property Casualty Co. of America v. KLA-Tencor Corp. Contracts, Insurance Law | Marriage of Deluca Family Law |
Click here to remove Verdict from subsequent Justia newsletter(s). | New on Verdict Legal Analysis and Commentary | The Investors’ Control of Their Investment Advisers. Who Has the Final Word? | TAMAR FRANKEL | | BU Law emerita professor Tamar Frankel discusses an emerging issue affecting financial advisers—when a client may exercise control over the actions of the adviser. Frankel relates the story of an investment adviser that did not follow the client’s orders to cease certain investments, at a cost of almost $5 million to the client. As Frankel explains, the Securities and Exchange Commission (SEC) got involved, resulting in the investment adviser’s settlement for a significant payment to the client and other conditions. | Read More |
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California Courts of Appeal Opinions | Torres v. Design Group Facility Soultions, Inc. | Docket: B294220(Second Appellate District) Opinion Date: February 13, 2020 Judge: Dhanidina Areas of Law: Civil Procedure, Construction Law, Personal Injury | Ismael Torres, Jr. sued Design Group Facility Solutions, Inc. (Design) for personal injuries after he fell through a skylight at a construction site. Design moved for summary judgment. The trial court initially denied the motion. Design moved for reconsideration based on new evidence under Code of Civil Procedure section 1008(a). At the hearing on the motion, the trial court granted reconsideration and, at the same time, granted the motion for summary judgment without giving Torres an opportunity to respond to the new evidence. After review, the Court of Appeal found the trial court abused its discretion: “a party unsuccessfully moving for summary judgment cannot circumvent the requirements of section 437c by subsequently moving for reconsideration under section 1008(a).” | | Soto v. Union Pacific Railroad Co. | Docket: B289712(Second Appellate District) Opinion Date: February 13, 2020 Judge: Dennis M. Perluss Areas of Law: Civil Procedure, Personal Injury, Real Estate & Property Law, Transportation Law | Irma Yolanda Munoz Soto sued Union Pacific Railroad Company and two of its employees, Scott King and Robert Finch (collectively, Union Pacific), for wrongful death (premises liability and general negligence) after Soto’s 16-year-old daughter was struck and killed by a freight train on an at-grade railroad crossing in Santa Clarita. The court granted Union Pacific’s motion for summary judgment, concluding as to Soto’s premises liability claim Union Pacific had no duty to remedy a dangerous condition because it did not own or control the railroad crossing. As to Soto’s negligence claim, the court ruled Soto could not establish that Union Pacific employees had negligently operated the train. On appeal, Soto argued she raised triable issues of material fact sufficient to defeat summary judgment. After review, of the evidence and governing law applicable to Soto’s claim, the Court of Appeal concurred there were no triable issues of fact, and summary judgment was appropriate. | | Alliance for Constitutional etc. v. Dept. of Corrections etc. | Docket: C087294(Third Appellate District) Opinion Date: February 13, 2020 Judge: Elena J. Duarte Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law | The California Department of Corrections Rehabilitation (Department) challenged a trial court ruling striking down its regulation excluding from early parole consideration inmates serving sentences for current nonviolent sex offenses requiring them to register under Penal Code section 290. On appeal, the Department claimed its regulation was supported by Proposition 57’s overarching goal of protecting public safety and the requirement that the Secretary of the Department certify the Department’s regulations enhanced public safety. The Court of Appeal determined the regulation at issue contravened the plain language of the statute, so it affirmed the trial court’s ruling. | | California v. Marcus | Docket: C087059(Third Appellate District) Opinion Date: February 13, 2020 Judge: Elena J. Duarte Areas of Law: Constitutional Law, Criminal Law | Defendant Demetrious Marcus and an accomplice broke into an apartment occupied by an elderly couple and other family members. After robbing the victims at gunpoint, defendant and his partner left with various property and were chased by the son and grandson; the son was shot during the chase. A jury found defendant guilty of two counts of first degree robbery, assault with a firearm, and being a felon in possession of a firearm, and found true several enhancements for personal use of a firearm as well as allegations that defendant had suffered a prior strike, had a prior serious felony conviction, and had served a prior prison term. The trial court sentenced defendant to an aggregate term of 29 years in state prison. On appeal defendant contended the trial court erred in declining to excuse a juror who expressed concern for the safety of the alleged victims during deliberation, and by failing to recognize it had discretion to impose concurrent sentences for the robbery counts. He also sought a remand to allow the trial court, under recent statutory amendments, to exercise discretion to strike the prior serious felony enhancement. After review of the trial court record, the Court of Appeal concluded the trial court misunderstood its discretion to impose concurrent sentences for crimes committed on the same occasion or arising under the same set of operative facts and agree with the parties that a remand is necessary to allow the court to consider striking the prior serious felony enhancement. The Court also noted the trial court failed to specify a sentence on count four and directed it to do so on remand. | | In re E.F. | Docket: B295755(Second Appellate District) Opinion Date: February 13, 2020 Judge: Brian M. Hoffstadt Areas of Law: Constitutional Law, Education Law, Juvenile Law | In December 2018, E.F. (minor) and L.S. were ninth graders enrolled in the same art class in high school. For unknown reasons, minor offered L.S. a Cup of Noodles, microwaved it, and handed it to him. When L.S. went to drink the broth, it smelled of bleach and he threw it out. The juvenile court entered a temporary restraining order (TRO) and, subsequently, a three-year restraining order against E.F., charged with poisoning one of her high school classmates. Among other things, this appeal presents the following question: Is a prosecutor seeking a TRO under Welfare and Institutions Code section 213.5 required to give advance notice of her intent to do so (or is notice at the hearing where the TRO is requested sufficient)? The court in In re L.W., 44 Cal.App.5th 44 (2020) held that advance notice is required. The Court of Appeal disagreed, holding that express language in section 213.5 authorized courts to authorize TROs without notice in advance of the hearing. “The minor appearing at the arraignment with counsel is still notified of the prosecutor’s TRO application and has the opportunity to oppose the application. Because due process guarantees notice and the opportunity to be heard, the issuance of TROs under section 213.5 accords with due process and thus provides no basis to read section 213.5 in a counter- textual manner to avoid possible constitutional infirmity.” | | Travelers Property Casualty Co. of America v. KLA-Tencor Corp. | Docket: H044890(Sixth Appellate District) Opinion Date: February 13, 2020 Judge: Nathan D. Mihara Areas of Law: Contracts, Insurance Law | Travelers won summary judgment in this duty-to-defend insurance dispute with its insured, KLA. The superior court concluded that the language of the commercial liability insurance policies, which covered claims for “malicious prosecution,” could not have created an objectively reasonable expectation that Travelers would defend a “Walker Process claim” against KLA. The Walker Process claim that KLA tendered to Travelers alleged that KLA had fraudulently procured a patent and used that patent to attempt to monopolize the market for a product. KLA argued that it was objectively reasonable for it to expect the “malicious prosecution” coverage in its policies to extend to this Walker Process claim. The court of appeal affirmed. Coverage language is construed as of the time of issuance of the policy, so the construction of that language cannot depend on the precise allegations made in a subsequent complaint. The history of prior litigation between the parties did not change the basis for this claim into one for malicious prosecution because there were no allegations of any legal proceedings involving the patent. | | Marriage of Deluca | Docket: D071379A(Fourth Appellate District) Opinion Date: February 13, 2020 Judge: Dato Areas of Law: Family Law | Parties Rosalinda and George Deluca appealed a trial court’s division of martial property and other matters, including spousal support. During the marriage, George's sister transferred to him title to an apartment complex referred to in this case as the "Florida Street property." Rosalinda contended the trial court erred in ruling the Florida Street property was George's separate property rather than community property. George had custody of the parties' two children and contended the court erred by awarding Rosalinda spousal support in an amount greater than his total net income available to support the children. Specifically, he argued the court erred by including the amount of monthly loan principal payments he is required to make on his income-producing properties as income available for spousal support. In the unpublished portion of its opinion, the Court of Appeal reversed the trial court with respect to Florida Street as George’s separate property, and remanded with directions to determine the amount of reimbursement credit to which George is entitled for Florida Street, as well as to consider George's new contention that he should be awarded a fractional separate property interest in the property. In the published portion of its opinion, the Court also reversed the spousal support award and directed the trial court to reconsider the amount of support after determining the extent to which George's loan principal payments reasonably and legitimately reduced his income for purposes of support. | |
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