Legal News

Case Summaries

Contracts

[02/22] Walsh v. Zurich Am. Ins. Co.
In an employment suit in which the jury found that defendant breached employment agreements with plaintiff when it substantially reduced his incentive pay for a lucrative deal -- the largest of its type in the company's history -- and did not pay incentive on another deal, the district court's judgment awarding plaintiff double damages and attorney fees is: 1) vacated in part insofar as it incorporates the jury's verdict on the Automobile Protection Corp. (APCO) deal, where the district court erroneously concluded that, if plaintiff had an enforceable incentive plan when the unprecedented deal was struck with APCO, defendant lacked discretion as a matter of law to change plaintiff's incentive formula for that deal; and 2) affirmed in part with respect to the Great American Insurance Company (GAIC) deal.

[02/16] Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc.
In a government contracts dispute alleging the tort of intentional interference with prospective economic advantage, the Court of Appeals judgment overturning the trial court's judgment sustaining defendants demurrer, is reversed where plaintiffs' allegations -- that they had submitted the second lowest bids on several contracts awarded to defendant, and that their bids would have been accepted but for defendant's wrongful conduct during the bidding process -- are insufficient because: 1) public works contracts are a unique species of commercial dealings; 2) in the contracts at issue here, the public entities retained broad discretion to reject all bids; 3) the bids were sealed, and there were no postsubmission negotiations; 4) in awarding the contracts, the public entities could give no preference to any bidder based on past dealings, and were required to accept the lowest responsible bid; and 5) in these highly regulated circumstances, plaintiffs had 'at most a hope for an economic relationship and a desire for future benefit.' Blank v. Kirwan (1985) 39 Cal.3d 311, 331.

[02/09] Leighton v. Forster
In an action for breach of an attorney fee contract and an account stated, seeking damages in excess of $114,000, the trial court's grant of summary judgment to defendant is affirmed where: 1) the evidence establishes there was no written fee contract; and 2) absent a written agreement, defendant is not liable to plaintiff.

[02/08] Jacobs v. Locatelli
In a complaint filed by a real estate broker claiming she is owed a commission for her efforts to sell a parcel of property in Marin County, and alleging that, although certain owners did not sign the agreement that promised the commission, the owner who did sign the contract told her that he was signing as the agent of the others, who had formed a joint venture, the trial court's judgment sustaining a demurrer without leave to amend, is reversed where neither the statute of frauds nor the parol evidence rule bar either of her claims.

[02/06] Mediterranean Shipping Co. v. Best Tire Recycling, Inc.
In a dispute arising out of a contract for the shipment of used tires from Puerto Rico to Vietnam, which accrued demurrage charges, port storage charges, and related administrative fees, apparently because it arrived late to Vietnam, the district court finding that defendant was the shipper, and therefore, pursuant to the bills of lading, was liable for the charges and fees to the carrier, is affirmed where was designated as the shipper on the bills of lading.

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Public Utilities

[01/31] Hensley v. San Diego Gas & Electric Co.
In a case in which the Court of Appeals previously dismissed the appeal of plaintiffs from a nonappealable stipulated judgment pursuant to a settlement agreement, and the parties entered into an amended stipulated judgment, the trial court's decision is reversed where: 1) the amended stipulated judgment is final and appealable and the court's opinion, with respect to the trespass and nuisance claims only, is not advisory; 2) on the merits, plaintiffs were legally entitled to present evidence of plaintiff's emotional distress on their claims for trespass and nuisance as annoyance and discomfort damages recoverable for such torts; and 3) the trial court excluded evidence of emotional distress damages in their entirety.

[01/24] Merced Irrigation District v. Super. Ct.
In a writ proceeding to challenge the trial court's conclusion that plaintiff was not a 'municipal corporation' for purpose of Public Utilities Code section 10251, which authorizes municipal corporations to recover all damages from any person who injures any facility or equipment of the municipal corporation through want of care, the petition is denied where the term 'municipal corporation' used in section 10251 does not include irrigation districts.

[10/03] Pacific Gas and Electric Co. v. US
In a brought suit against the U.S. claiming that two federal government agencies selling electricity over-charged appellants for electricity, the Federal Claims Court dismissal for lack of standing is affirmed where plaintiffs lack privity of contract or any other relationship with the government that would confer standing.

[09/08] MPS Merchant Services, Inc. v. Federal Energy Regulatory Commission
In consolidated petitions for review brought by various power companies of FERC determinations that various energy companies committed tariff violations in California during the summer of 2000, the FERC determinations are affirmed where: 1) it did not arbitrarily and capriciously, or abuse its discretion in finding that electric sellers Shell Energy North America, LP, MPS Merchant Services, Inc., and Illinova Corporation violated the Cal-ISO tariff and Market Monitoring and Information Protocol; 2) FERC's Summer Period determinations regarding APX, Inc., and BP EnergyCo. were not arbitrary, capricious, or an abuse of discretion; and 3) because FERC's remedial order is not final, the panel lacked appellate jurisdiction over it.

[08/31] California Public Utilities Comm. v. Superior Court
In a petition for writ of mandamus and complaint for injunctive and declaratory relief against the California Public Utilities Commission (CPUC) for failing to comply with the the Public Records Act (PRA), Government Code sections 6250-6276.48, the petition is granted where Public Utilities Code section 1759 bars the superior court from exercising jurisdiction over such a lawsuit.

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Dispute Resolution & Arbitration

[02/08] In re ACTOS End-Payor Antitrust Litigation
In a complaint allege that defendants delayed competitors from marketing generic versions of the diabetes drug ACTOS by falsely describing two patents to the Food and Drug Administration, thereby causing plaintiffs to pay monopoly prices for the drug in violation of state-law analogs of the Sherman Act, the district court's dismissal of the complaint for failure to plausibly allege that the false descriptions caused the delay is: 1) affirmed in part to the extent plaintiffs' theory posits a delay in the marketing of generic alternatives to ACTOS by all the generic applicants other than Teva, where plaintiffs' theory presupposes that these applicants were aware of Takeda's allegedly false patent descriptions when they filed their applications, which is not supported by well-pleaded allegations and 2) vacated in part to the extent plaintiffs' theory as to Teva does not require any knowledge of the false patent descriptions, where plaintiffs plausibly alleged that Takeda delayed Teva?s market entry.

[02/07] Vasserman v. Henry Mayo Newhall Memorial Hosp.
In a suit by a former employee against her former hospital employer for violations of the California Labor Code and other statutes relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation, the trial court's denial of the hospital's motion to compel arbitraiton where: 1) this dispute is not over plaintiff's substantive rights, but instead the forum in which those rights are to be determined; 2) if those rights are to be determined only by arbitration, a collective bargaining agreement must make that clear; and 3) the collective bargaining agreement (CBA) here required arbitration of claims arising under the agreement, but it did not include an explicitly stated, clear and unmistakable waiver of the right to a judicial forum for claims based on statute.

[02/03] Prime Healthcare Services v. United Nurses and Allied Professionals
In a dispute between employees and their successor employer, both of whom agreed to arbitrate, the district court's refusal to compel arbitration because it found that ERISA preempted arbitration of this dispute, which presented an issue of arbitrability properly decided by a judge, is reversed where the issue of ERISA preemption in this case is not an issue of arbitrability, but rather one that is squarely for the arbitrator to decide.

[02/03] Poublon v. C.H. Robinson Co.
In an employment class action, the district court's order denying defendants' motion to stay proceedings, compel arbitration of claims arising out of the plaintiff's employment, and dismiss class and representative claims, is reversed where: 1) although the Incentive Bonus Agreement was an adhesion contract, it was not procedurally or substantively unconscionable under California law; and 2) the dispute resolution provision was valid and enforceable once the judicial carve-out was extirpated and the waiver of representative claims was limited to non-PAGA claims.

[02/02] Iraq Middle Market Dev. v. Harmoosh
In a case in which a creditor secured a judgment securing in Iraq for non-payment of a promissory note and sought to have a recognized in federal district court, the district court's judgment that the judgment was not entitled to recognition given that the parties had agreed to arbitrate their disputes, is vacated where genuine issues of material fact remain as to whether the debtor lost his right to arbitrate by utilizing the Iraqi judicial process.

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Patent

[02/22] Life Technologies Corp. v. Promega Corp.
In an infringement suit in which plaintiff sublicensed a patent, which claims a toolkit for genetic testing, for the manufacture and sale of the kits for use in certain licensed law enforcement fields worldwide, alleging a violation of section 271(f)(1) of the Patent Act, which prohibits the supply from the United States of 'all or a substantial portion of the components of a patented invention' for combination abroad, the Federal Circuit's judgment, which determined that a single important component could constitute a substantial portion' of the components of an invention under section 271(f)(1), is reversed where the supply of a single component of a multicomponent invention for manufacture abroad does not give rise to section 271(f)(1) liability.

[02/21] Secure Axcess, LLC v. PNC Bank Nat'l Ass'n
In a challenge to a Final Written Decision of the Patent Trial and Appeal Board reaffirming its determination that the patent at issue -- relating to computer security and ways to authenticate a web page -- was a covered business method (CBM) patent under section 18 of the Leahy-Smith America Invents Act (AIA), Pub. L. No. 112-29, 125 Stat. 284 (2011), is vacated where: 1) the Board-adopted characterization of CBM scope was contrary to the statute; and 2) the patent at issue is outside the definition of a CBM patent that Congress provided by statute.

[02/16] Metalcraft of Mayville, Inc. v. The Toro Co.
In an infringement suit brought by a manufacturer of commercial riding lawnmowers involving a patent which discloses a suspended operator platform for a ride-on lawnmower or other riding light utility vehicle connected to a rigid chassis by a suspension system, the district court's grant of preliminary injunction precluding defendants from making, using, selling, and offering to sell lawnmowers equipped with platform suspension systems that infringe that patent is affirmed where, in light of likelihood of success, irreparable harm, balance of equities and the public interest, and the content and scope of the injunction, the district court did not abuse its discretion in granting plaintiff's motion for a preliminary injunction.

[02/14] Personal Web Techs., LLC v. Apple, Inc.
In an appeal of inter partes review of certain claims of a patent that describes and claims methods (or devices for carrying out methods) of locating data and controlling access to data by giving a data file a substantially unique name that depends on the file's content--a so-called 'True Name'--the Patent Trial and Appeal Board's decision is: 1) affirmed as to the Board's claim construction; but 2) vacated as to the obviousness determination because the Board did not adequately support its findings that the prior art disclosed all elements of the challenged claims and that a relevant skilled artisan would have had a motivation to combine the prior-art references to produce the claimed inventions with a reasonable expectation of success.

[02/14] Xilinx, Inc. v. Papst Licensing GmbH & Co. KG
In an action seeking declaratory judgment against defendant, a non-practicing entity that is solely in the business of monetizing and licensing intellectual property rights, that plaintiff's patents do not infringe the patent-in-suit and that such patents are invalid, the district court's dismissal for lack of personal jurisdiction is reversed and remanded where the court has specific personal jurisdiction over defendant, because has established that personal jurisdiction over defendant is proper in California.

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Communications Law

[02/16] Flo & Eddie, Inc. v. Sirius XM Radio, Inc.
In a copyright infringement suit brought by the company that owns the recordings of the Turtles, a well-known rock band with a string of hits in the 1960s, on behalf of itself and a class of owners of pre-1972 recordings against largest radio and internet-radio broadcaster in the U.S., the district court's denial of defendant's motions for summary judgment and reconsideration is reversed where, in response to questions certified to the New York Court of Appeals, New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings.

[02/06] Prather v. AT&T, Inc.
In a qui tam action brought by a state prosecutor alleging that the largest telecommunications companies in the United States were fraudulently overcharging the federal government for surveillance services, the district court's dismissal of the action under the False Claims Act's (FCA) public disclosure bar, which states that once allegations of fraud have entered the public domain a person may not bring a qui tam action unless he can prove that he was an original source of those allegations,31 U.S.C. section 3730(e)(4) (2006), is affirmed where plaintiff did not qualify as an original source.

[02/03] Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc.
In an action alleging violations of of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. section 227, the district court's grant of defendant's Rule 12(b)(6) motion dismissing the complaint is vacated where an unsolicited fax inviting doctors to a free dinner meeting featuring a discussion of an ailment -- to which an upcoming product, as yet unapproved by the FDA, was aimed -- was not an 'unsolicited advertisement.'

[01/30] Van Patten v. Vertical Fitness Group, LLC
In an action under the Telephone Consumer Protection Act (TCPA) regarding text messages about a gym membership, the district court's grant of summary judgment in favor of defendants is affirmed where, under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the plaintiff alleged a concrete injury sufficient to confer Article III standing to pursue his TCPA claim.

[01/30] Van Patten v. Vertical Fitness Group, LLC
In an action under the Telephone Consumer Protection Act (TCPA) regarding text messages about a gym membership, the district court's grant of summary judgment in favor of defendants is affirmed where, under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the plaintiff alleged a concrete injury sufficient to confer Article III standing to pursue his TCPA claim.

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Oil & Gas

[02/16] Virginia Uranium, Inc. v. Warren
In a uranium miner's challenge to the Virginia General Assembly's ban on uranium mining 'until a program for permitting uranium mining is established by statute,' Va. Code Ann. section 45.1-283, the district court's dismissal of plaintiff's complaint for failure to state a claim upon which relief can be granted is affirmed where the federal Atomic Energy Act (AEA), 42 U.S.C. sections 2011, 2014(z), does not preempt state regulation of conventional uranium mining.

[01/19] US v. Blankenship
In a criminal case arising out of a tragic accident on April 5, 2010 at the Upper Big Branch coal mine in Montcoal, West Virginia, which caused the death of 29 miners, former Massey Energy CEO-defendant's conviction for conspiring to violate federal mine safety laws and regulations is affirmed where the district court committed no reversible error in connection with its refusal to dismiss the indictment, the Sixth Amendment Confrontation Clause, or jury instructions.

[09/08] MPS Merchant Services, Inc. v. Federal Energy Regulatory Commission
In consolidated petitions for review brought by various power companies of FERC determinations that various energy companies committed tariff violations in California during the summer of 2000, the FERC determinations are affirmed where: 1) it did not arbitrarily and capriciously, or abuse its discretion in finding that electric sellers Shell Energy North America, LP, MPS Merchant Services, Inc., and Illinova Corporation violated the Cal-ISO tariff and Market Monitoring and Information Protocol; 2) FERC's Summer Period determinations regarding APX, Inc., and BP EnergyCo. were not arbitrary, capricious, or an abuse of discretion; and 3) because FERC's remedial order is not final, the panel lacked appellate jurisdiction over it.

[08/10] Vapor Point LLC v. Moorhead
In a case in which both parties sued each other, seeking to have certain parties recognized as joint inventors, under 35 U.S.C. section 256, on the other party's patent directed to the removal of volatile fuel vapors, also known as volatile organic compounds (VOCs), from storage tanks and other holding vessels generally in the oil and gas industry, the District Court's order granting initial plaintiff's motion for correction of inventorship and denying each of initial defendant's motions, is affirmed where: 1) the District Court did not err in dismissing the case after determining inventorship, especially in light of defendant's concession that a determination of inventorship would resolve the case; and 2) he district court did not abuse its discretion in denying plaintiff's motion for exceptional case status and attorneys' fees.

[08/08] Chevron Corp. v. Donziger
In an appeal of certain relief granted in favor of plaintiff-appellee Chevron, in connection with an $8.646 billion judgment obtained against Chevron in Ecuador, by several dozen named plaintiffs from Ecuador's Lago Agrio for environmental damage in connection with 1960s-1990s oil exploration activities in Ecuador by Texaco, whose stock was later acquired by Chevron, the District Court's judgment is affirmed over plaintiff's challenges relating to Article III standing, international comity, judicial estoppel, lack of legal authority for the granting of equitable relief, and/or lack of personal jurisdiction over defendants.

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Securities Law

[02/16] People v. Black
In the People's appeal pursuant to Penal Code section 1238(a)(1), challenging the trial court's order to set aside certain counts of charges against defendant for using false statements in the offer or sale of a security, Corp. Code sections 25401, 25540(b), after defendant persuaded an acquaintance to invest in a real estate development opportunity in Idaho in return for a promissory note, the terms of which were amended and extended several times but never realized, the trial court's order is affirmed where the promissory notes offered for the investment in the real estate development scheme were not securities within the meaning of the Corporate Securities Law.

[02/02] Sharemaster v. US Securities & Exchange Commission
In a pro se petition for review brought by a registered broker dealer seeking review of an SEC decision that a $1000 penalty that the Financial Industry Regulatory Authority (FINRA) imposed on petitioner was not a 'live' sanction capable of redress, the petition is granted where the SEC's decision was interpretation of Securities Exchange Act Section 19(d)(2) was unreasonable and inconsistent with applicable law.

[01/19] Retail Wholesale & Department Store Union Local 338 Retirement Fund v. Hewlett-Packard Co.
In a securities fraud action brought under the Securities Exchange Act of 1934 by shareholders alleging that the company CEO and chairman violated the corporate code of ethics after publicly touting the business's high standards for ethics and compliance, the district court's dismissal is affirmed where shareholders failed to state a claim for securities fraud because they failed to sufficiently allege that the defendants made a material misrepresentation or misleadingly omitted a material fact.

[01/09] Ganem v. InVivo Therapeutics Holdings C
In a putative class action suit filed by investors against the company and its former chief executive officer following a drop in the share price of the company's common stock, alleging securities fraud in violation of Sections10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. sections 78j(b) and 78t(a), as well as the Securities and Exchange Commission's (SEC) Rule 10b-5, 17 C.F.R. section 240.10b-5, averring defendants inflated the value of its common stock for about five months in 2013 by issuing false or materially misleading press releases concerning the approval of human clinical trials for a new medical device the company was developing that failed to identify the caveats and conditions imposed by the Food and Drug Administration (FDA) for the clinical trials, the district court's grant of defendants' motion to dismiss is affirmed where: 1) plaintiff has failed to allege false or misleading statements sufficient to state a claim under Section 10(b) and Rule 10b-5, and; 2) having failed to plead a viable claim of a primary violation, plaintiff's control person claim against defendant under Section 20(a) was also properly dismissed.

[12/21] Rainero v. Archon Corp.
In a class action suit brought on behalf of a class of preferred stock shareholders, the court affirmed where the district court?s dismissal is for (1) lack of subject matter jurisdiction when the Securities Litigation Uniform Standards Act does not provide an independent basis for federal question jurisdiction under 28 U.S.C. section 1331; (2) lack of diversity jurisdiction over the class action suit under 28 U.S.C. section 1332(d)(2); and (3) lack of diversity jurisdiction over plaintiff?s individual claim under 28 U.S.C. section 1332(a), and therefore lack of supplemental jurisdiction over the class members? claims.

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Administrative Law

[02/22] Upatcha v. Sessions
In a petition for review of a decision of the Board of Immigrant Appeals (BIA) affirming an immigration judge's (IJ) denial of petitioner's request for a hardship waiver that would allow her to stay in the country despite the fact that her marriage to a U.S. citizen had ended in divorce, concluding that petitioner failed to demonstrate that she entered into her marriage in good faith, as required by 8 U.S.C. section 1186a(c)(4)(B), the petition is granted where: 1) the BIA applied the wrong standard of review; and 2) whether petitioner established that her marriage was entered into in good faith is a mixed question of fact and law, and the IJ?s ultimate conclusion that the credited evidence did not meet the good faith standard is a legal judgment subject to de novo review.

[02/22] Mahmood v. Sessions
In a petition brought by a native and citizen of Pakistan who was granted asylum in the United States in 1997, voluntarily applied in 2011 for adjustment of his asylum status to the status of a lawful permanent resident, pursuant to 8 U.S.C. section 1159(b), of the Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) finding of clear and convincing evidence that petitioner deliberately misrepresented material facts in order to obtain travel documents and his lawful permanent resident status and order that petitioner be removed from the U.S. to Pakistan, the petition is denied where the BIA?s interpretation of section 1159(b) is the best interpretation of the statute and that, in any event, it deserves deference under Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[02/21] Cortez Cardona v. Yates
In a petition brought by a native and citizen of Guatemala, seeking review of a decision from the Board of Immigration Appeals (BIA) denying her motion to reopen an appeal challenging an immigration judge's (IJ) decision to reject her request for asylum and withholding of removal pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. sections 1158, 1231(b)(3), the petition is denied where, under the deferential standard of review accorded to the BIA's decision to reject a motion to reopen and reconsider its own proceeding, the BIA did not abuse its discretion when it denied petitioner's request to reopen.

[02/21] San Luis & Delta-Mendota Water Auth. v. Haugrud
In a dispute arising out of the release of Trinity River water from the Lewiston Dam above the amount designated in the applicable water release schedule, to help prevent a mass die-off of salmon in the Klammath River, the district court's judgment is affirmed in part and reversed in part where: 1) the Bureau of Reclamation (BOR) had the authority to implement the release of Trinity River water from the Lewiston Dam, above and beyond the amount designated in the applicable water release schedule; 2) the 2013 flow augmentation release did not violate Central Valley Project Improvement Act (CVPIA) section 3406(b)(23), which called for a permanent water release that would serve only the Trinity River basin. and 3) the 2013 flow augmentation release did not violate California water law and, in turn, did not violate the Reclamation Act of 1902 or CVPIA section 3411(a), both of which require the BOR to comply with state water permitting requirements.

[02/21] Golden Day Schools, Inc. v. Office of Administrative Hearings
In an appeal arising out of the trial court's ruling on a petition for writ of administrative mandamus pursuant to California Code of Civil Procedure section 1094.5, contending the trial court erroneously upheld certain findings of the Administrative Law Judge (ALJ), which entitled the California Department of Education to recoup more than $3 million, and a cross-appeal by the Department contending the trial court erroneously overturned one of the ALJ findings, the judgment is: 1) reversed in part where the Department was permitted under Education Code section 8448(h) to conduct its own contract performance audit despite having accepted and closed petitioner's independent financial and compliance audits; and 2) affirmed in part where substantial evidence supports the findings of the ALJ and the trial court that the Department was allowed to recoup (i) costs for commingling eligible and noneligible students, (ii) certain payroll costs for employees who also worked at a charter school on some of the same sites, and (iii) various nonreimbursable costs.

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Family Law

[02/14] In re Breanna S.
In an action brought by Mother and presumed Father of nine-year-old and four-year-old appealing the juvenile court's order pursuant to Welfare and Institutions Code section 366.26 terminating their parental rights and identifying adoption as the permanent plan for children, the order is remanded where the Los Angeles County Department of Children and Family Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 U.S.C. section 1901 et seq., but otherwise conditionally affirmed.

[02/10] In re Grace P.
In a Mother and Father's appeal from the juvenile court's order terminating parental rights to six-year-old daughter, five-year-old son and three-year-old son pursuant to Welfare and Institutions Code section 366.26, the juvenile court's order is reversed where, in a matter of first impression, the juvenile court abused its discretion in denying Father a contested selection and implementation hearing under section 366.26. When, as here, a parent has consistently and regularly visited his or her children and at the selection and implementation hearing, offers testimony regarding the quality of their parent-child relationship and possible resulting detriment that would be caused by its termination, a juvenile court abuses its discretion if it denies a contested hearing on the beneficial parent-child relationship exception.

[01/26] C.M. v. M.C.
In an appeal from a judgment declaring plaintiff-Father to be the sole legal parent of triplet Children and finding that defendant, the gestational carrier for the children, has no parental rights, alleging an all-out attack on the constitutionality and enforceability of surrogacy agreements in California, the judgment is affirmed where: 1) defendant's arguments are foreclosed by specific legislative provisions and by a prior decision by our Supreme Court; and 2) the legislative requirements for establishing an enforceable surrogacy agreement were met in this case.

[01/24] In re Yolanda L.
In a Father's appeal of family court orders declaring his two children dependent children pursuant to Welfare and Institutions Code section 300(b), removing the children from Father and placement with Mother, the orders are affirmed over his claims that: 1) the jurisdiction order was not supported by sufficient evidence; and 2) the removal order was 'not authorized by statute.'

[01/24] In re Carl H.
In a Mother's appeals from juvenile court orders establishing jurisdiction over the Daughter and bypassing family reunification services for Mother, and the juvenile court's assertion of jurisdiction over Son, the orders are: 1) affirmed in part where, assessed under the relevant legal standard, the record supports the court's jurisdictional findings and the bypass of services to Mother; and 2) reversed in part as to the dismissal of Son's dependency case because findings were unsustained as to his custodial parent was error.

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Probate Trusts

[02/01] Williamson v. Brooks
In a case involving an irrevocable subtrust in which the beneficiary seeks the value of 'opportunities lost' resulting from the trustees' refusal or neglect to distribute trust assets to the beneficiary, the trial court's judgment in favor of co-trustees is affirmed where trustees did not breach their fiduciary duties and neither the subtrust nor beneficiary suffered any harm as a result of co-trustees' actions.

[01/18] Pizarro v. Reynoso
In an acrimonious family squabble over the property of the deceased patriarch challenging the granddaughter-trustee's sale of the property, the trial court's judgment and award of attorney fees to the trustee is: 1) reversed as to the award of attorney fees and costs to the extent it imposed personal liability; but 2) affirmed in all other respects.

[12/16] Conservatorship of the Person of B.C.
In a conservatorship action, the trial court's order issuing letters of conservatorship under Probate Code section 1823 is affirmed. The Court held that probate conservatorships do not require a personal waiver of the conservatee's right to a jury trial where the proceedings pose no threat of confinement and are conducted pursuant to Probate Code section 1827.

[11/03] Estate of Dayan
In an appeal of the probate court's denial of plaintiff's Probate Code section 850(a)(2) petition for an order conveying commercial real property and its denial of plaintiff's judgment on the pleadings motion, the probate court's orders are affirmed in their entirety where the trial court correctly denied plaintiff's motion for judgment on the pleadings and did not err by denying plaintiff's section 850(a)(2) petition.

[10/24] Humboldt County Adult Protective Services. v. Superior Court
In a health law action arising after plaintiff agency sought to revoke defendant husband's written advance care directive, the trial court's denial of defendant's request for statutory attorney fees under the Health Care Decisions Law, Probate Code section 4771, is reversed and remanded where plaintiff agency knowingly and deliberately misrepresented both the law and the facts in its petition to the trial court and had no reasonable basis to proceed with its action under the law.

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Immigration Law

[02/22] Upatcha v. Sessions
In a petition for review of a decision of the Board of Immigrant Appeals (BIA) affirming an immigration judge's (IJ) denial of petitioner's request for a hardship waiver that would allow her to stay in the country despite the fact that her marriage to a U.S. citizen had ended in divorce, concluding that petitioner failed to demonstrate that she entered into her marriage in good faith, as required by 8 U.S.C. section 1186a(c)(4)(B), the petition is granted where: 1) the BIA applied the wrong standard of review; and 2) whether petitioner established that her marriage was entered into in good faith is a mixed question of fact and law, and the IJ?s ultimate conclusion that the credited evidence did not meet the good faith standard is a legal judgment subject to de novo review.

[02/22] Mahmood v. Sessions
In a petition brought by a native and citizen of Pakistan who was granted asylum in the United States in 1997, voluntarily applied in 2011 for adjustment of his asylum status to the status of a lawful permanent resident, pursuant to 8 U.S.C. section 1159(b), of the Board of Immigration Appeals (BIA) decision affirming an Immigration Judge's (IJ) finding of clear and convincing evidence that petitioner deliberately misrepresented material facts in order to obtain travel documents and his lawful permanent resident status and order that petitioner be removed from the U.S. to Pakistan, the petition is denied where the BIA?s interpretation of section 1159(b) is the best interpretation of the statute and that, in any event, it deserves deference under Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[02/21] Cortez Cardona v. Yates
In a petition brought by a native and citizen of Guatemala, seeking review of a decision from the Board of Immigration Appeals (BIA) denying her motion to reopen an appeal challenging an immigration judge's (IJ) decision to reject her request for asylum and withholding of removal pursuant to the Immigration and Nationality Act (INA), 8 U.S.C. sections 1158, 1231(b)(3), the petition is denied where, under the deferential standard of review accorded to the BIA's decision to reject a motion to reopen and reconsider its own proceeding, the BIA did not abuse its discretion when it denied petitioner's request to reopen.

[02/17] Holder v. Lynch
In a case in which petitioner was convicted of committed kidnapping for ransom, a felony under California law that rendered him deportable under 8 U.S.C. sections 1101(a)(43)(F), (H) and1227(a)(2)(A)(iii), and after petitioner committed the crime, Congress enacted the Immigration Act of 1990 (IMMACT), divesting the Attorney General of the discretion to grant a waiver, under 8 U.S.C. section 1182(c), to any person who served five or more years of incarceration for an aggravated felony, the petition for review of the Board of Immigration Appeals (BIA) is denied where the post-enactment date of conviction controlled, rendering section 212(c) relief unavailable to petitioner.

[02/07] US v. Peralta-Sanchez
In a case in which the defendant argued that his expedited removal was fundamentally unfair, and cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission, his conviction and sentence for illegal entry, and the revocation of supervised release, are affirmed where: 1) defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. section 1225, and he cannot demonstrate prejudice from the failure to notify him of the right to withdraw his application for admission under 8 U.S.C. section 1225(a)(4); and 2) as a result, defendant's 2012 expedited removal could be used as a predicate for his illegal reentry conviction.

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Copyright

[02/16] Flo & Eddie, Inc. v. Sirius XM Radio, Inc.
In a copyright infringement suit brought by the company that owns the recordings of the Turtles, a well-known rock band with a string of hits in the 1960s, on behalf of itself and a class of owners of pre-1972 recordings against largest radio and internet-radio broadcaster in the U.S., the district court's denial of defendant's motions for summary judgment and reconsideration is reversed where, in response to questions certified to the New York Court of Appeals, New York common law does not recognize a right of public performance for creators of pre-1972 sound recordings.

[02/09] Design Data Corp. v. Unigate Enterprises, Inc.
In an action under the Copyright Act, alleging defendant infringed the copyright on plaintiff's computer aided design program by downloading an unauthorized copy of the program and importing and distributing within the United States program output generated by a Chinese contractor using an unauthorized copy of the program, the district court's summary judgment is: 1) affirmed in part on the importation-and-distribution claim, where the copyright in the program did not extend to the program?s output of images and files; and 2) reversed in part as to the downloading claim, where there was a material question of fact whether defendant's download was more than an insignificant violation of plaintiff's copyright.

[01/23] Perfect 10, Inc. v. Giganews, Inc.
In a copyright case involving the Usenet, an international collection of organizations and individuals whose computers connect to one another and exchange messages posted by Usenet users, the district court's judgment in favor of defendants is affirmed where: 1) the volitional conduct requirement was not met on plaintiff's theories that the defendants directly infringed its display rights and distribution rights; 2) the volitional conduct requirement also was not met as to the claim that defendant directly infringed on plaintiff's right to reproduce by uploading infringing content onto the Usenet or defendant's servers; 3) defendant was not liable for contributory copyright infringement because plaintiff failed to raise a triable issue of fact as to whether defendant materially contributed to or induced infringement of plaintiff's copyrights; and 4) the vicarious infringement claim was properly dismissed where plaintiff failed to demonstrate a causal link between the infringing activities and a financial benefit to defendant.

[12/20] Flo & Eddie, Inc. v. Sirius XM Radio, Inc.
Answering a certified question from the U.S. Court of Appeals for the Second Circuit, the Court held that New York common law does not recognize a right of public performance for creators of sound recordings and answered the Second Circuit's question in the negative.

[12/13] EMI Christian Music Grp., Inc. et al. v. MP3tunes, LLC
In an amended opinion involving a copyright infringement action brought by record companies and music publishers against internet music services that allowed users to search for free music, dealing with the requirement of the Digital Millennium Copyright Act (DMCA) safe harbor that an internet service provider adopt and reasonably implement a policy to terminate repeat infringers, under 17 U.S.C. section 512, the District Court's grant of partial summary judgment in favor of defendants and decision overturning a jury verdict in favor of plaintiffs is: 1) vacated as to partial summary judgment to the defendants based on the conclusion that defendant qualified for safe harbor protection under the DMCA because the District Court applied too narrow a definition of 'repeat infringer'; 2) reversed as to judgment as a matter of law to the defendants on claims that defendant permitted infringement of plaintiffs' copyrights in pre?2007 MP3s and Beatles songs because there was sufficient evidence to allow a reasonable jury to conclude that defendant had red?flag knowledge of, or was willfully blind to, infringing activity involving those categories of protected material; 3) remanded for further proceedings related to claims arising out of the District Court?s grant of partial summary judgment; and 4) affirmed in all other respects.

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