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Case Summaries

Elder Law

[08/30] HCM Healthcare, Inc. v. California Ins. Guarantee Ass'n
In a residential nursing facility's suit against California Insurance Guarantee Association (CIGA) for breach of contract and for violating the Insurance Code for refusing to provide plaintiffs with defense counsel and indemnification for underlying lawsuits for elder abuse, judgment in favor of defendant is affirmed where: 1) as a creature of statute, and not of contract, in some instances CIGA may not be responsible for an insured loss to the same extent as the insolvent insurer might be under the terms of its insurance contract; and 2) Pennsylvania's liquidation order imposed a June 30, 2005 deadline for filing against an insurer and because plaintiff did not meet the deadline, CIGA may not honor their claims.

[08/09] Clark v. Superior Court
In senior citizens' suit against an insurance company, claiming deceptive business practices relating to the purchase and sale of annuity contracts, and claiming that statutory law entitled them to a trebling of the award, court of appeal's grant of plaintiffs' petition for a writ of mandate directing the trial court to enter a new order denying defendant's motion for judgment on the pleadings is reversed as, because Civil Code section 3345 authorizes the trebling of a remedy only when it is in the nature of a penalty, and because restitution under the unfair competition law is not a penalty, an award of restitution under the unfair competition law is not subject to section 2234's trebling provision.

[07/12] Das v. Bank of Am. N.A.
In a daughter's suit for elder abuse against Bank of America, claiming that the bank failed to report financial abuse involving her father and engaged in other misconduct, including predatory lending, trial court's dismissal of the complaint is affirmed where: 1) as section 15610.30(b)'s 2008 amendments to the statutory scheme were substantive, rather than procedural, and the Legislature did not state that the amendments were retroactive in effect, they are inapplicable to plaintiff's claims; 2) plaintiff's allegations regarding defendant's failure to comply with the statutory reporting duty state no claim against defendant; 3) the demurrers to plaintiff's remaining claims were properly sustained; and 4) there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.

[05/06] FAL-Meridian, Inc. v. US Dep't of Health & Human Serv.
A nursing home's petition to set aside a final decision by the Department of Health and Human Services, that imposed a civil penalty of $7,100 for having violated a regulation under the Medicare and Medicaid provisions of the Social Security Act, is denied as the nursing home failed to tender evidence that would show that it had done everything possible to minimize the risk of an accident to the deceased resident.

[02/05] Villano v. Waterman Convalescent Hosp., Inc.
In plaintiff's action against a convalescent hospital claiming she was admitted without her consent, judgment of the trial court is affirmed where, although a stipulated judgment is appealable, plaintiff cannot show that allegedly erroneous rulings were prejudicial.

[12/22] Massey v. Mercy Med. Center Redding
In plaintiff's negligence action against a nurse and the hospital that employed the nurse alleging that he sustained injury after falling from a walker because the nurse placed the plaintiff on the walker and left him unattended, judgment of the trial court is reversed in part where: 1) the question of nurse's alleged negligence for the fall poses a question of common knowledge, and therefore does not require expert opinion testimony; and 2) trial court's judgment that denied plaintiff's attempt to amend his complaint to add causes of action for battery, fraud and elder abuse is affirmed.

[12/21] Grace Healthcare of Benton v. US Dept. of Health & Hum. Servs.
In a petition for review of a civil monetary penalty imposed by the Secretary of the Department of Health and Human Services on petitioner nursing home for an "immediate jeopardy" violation of 42 C.F.R. section 483.13(c), which required nursing homes to thoroughly investigate all allegations of resident neglect or abuse, including injuries of unknown sources, the petition is granted where the Secretary's finding of the likely harm necessary to warrant an immediate-jeopardy-level finding was based on pure speculation and not supported by substantial evidence in the administrative record as a whole.

[12/01] Yarick v. Pacificare of California
In plaintiff-estate's suit against defendant health care providers and health care benefits providers alleging that the events resulting in decedent's death happened because of the financial pressures and incentive that arose from the care providers' contracts with the defendants, trial court's order sustaining defendants' demurrer is affirmed as: 1) federal law expressly preempts applications of state laws where standards for Medicare Advantage plans are established pursuant to the Medicare law; and 2) to the extent the plaintiff seeks to allege causes of action based on state common law concepts of duty independent of the Health and Safety Code provisions cited, those common law causes of action are preempted.

[11/30] Holbert v. Fremont Inv. & Loan
In plaintiff's suit against a financial lender, dismissal of the complaint is affirmed where: 1) defendant was not required to comply with the Home Ownership and Equity Protection Act of 1994 (HOEPA), which applies when the finance charges imposed on a loan exceed a certain threshold; 2) two charges imposed on plaintiff, one to pay off a preexisting debt to another lender and another to satisfy a prepayment penalty on a prior home loan, were not finance charges within the meaning of HOEPA; 3) plaintiff has not established a claim against defendant for unfair business practices; and 4) while plaintiff may have a viable claim against her loan broker for financial elder abuse based on various misrepresentations made during the loan process, she failed to link that claim to defendant, who is as much a victim of the broker's misrepresentations as plaintiff.

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Family Law

[08/31] In re A.M.
An order declaring a father's minor children dependents of the juvenile court under Welfare and Institutions Code section 300(f) is affirmed where: 1) substantial evidence supports the court's section 300(f) jurisdictional finding that the father caused the death of a minor child through neglect; and 2) after considering all of the evidence and having the opportunity to observe the demeanor of witnesses, the juvenile court was in the best position to make the credibility findings concerning the father's statements.

[08/30] In re R.R.
In dependency proceedings, juvenile court's order declaring petitioner-father's daughter a person described by Welfare and Institutions Code section 300(b) based on the father's past and current drug use, is affirmed where: 1) the juvenile court did not err in denying father's motion to quash subpoena of his hospitalization; 2) any error in not hearing the motion to quash was harmless because as a matter of substantive law the motion would have been denied as father's hospital records were admissible; 3) father's claim that his right to privacy was violated by dissemination of his medical records is rejected; 4) substantial evidence supported the finding that the daughter was a person described by section 300; and 5) juvenile court did not abuse its discretion by ordering monitored visits.

[08/24] Karpenko v. Leendertz
In a child custody dispute, a grant of a mother's petition for the child's return under the Hague Convention of the Civil Aspects of International Child Abduction is affirmed and the minor child's immediate return to her mother in the Netherlands is ordered where: 1) the district court's findings of fact were not clearly erroneous; and 2) the application of the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

[08/17] US v. Newman
Defendant's sentence for violating the International Parental Kidnapping Crime Act is reversed where the district court clearly erred in finding that the offense was "otherwise extensive in scope, planning, or preparation" and thus enhancing the sentence.

[08/13] CFTC v. Walsh
In an action by the CFTC and SEC alleging securities fraud, the Second Circuit certified the following question to the New York Court of Appeals: 1) does "marital property" within the meaning of New York Domestic Relations Law section 236 include the proceeds of fraud?; and 2) does a spouse pay "fair consideration" according to the terms of New York Debtor and Creditor Law section 272 when she relinquishes in good faith a claim to the proceeds of fraud?

[08/11] Ziino v. Baker
In an action seeking to levy against assets held in trust for a bankrupt party in an action based on a prior bankruptcy court order, summary judgment for defendant is affirmed where: 1) the bankruptcy court's order contained no clear designation of plaintiff's entitlement, especially in view of his significant recovery from the bankruptcy estate after the order issued; and 2) plaintiff's privately negotiated agreement with defendant did not qualify as an enforceable judgment for child support.

[08/10] Yepremyan v. Holder
In a petition for review of a decision of the Board of Immigration Appeals (BIA) denying petitioner's motion to reopen for adjustment of status, the petition is denied where: 1) the day after Thanksgiving was a legal holiday for purposes of calculating time under Fed. R. App. P. 26(a); and 2) petitioner did not submit sufficient supporting documentation to show by clear and convincing evidence that her marriage was bona fide.

[08/04] In re Vanessa Q.
Family law court's determination that petitioner, who is currently incarcerated in Mexico, had abandoned his three children in terminating his parental rights is affirmed as petitioner's argument that the judgment is void for lack of personal jurisdiction because he was not properly served with notice of the proceedings in accordance with the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters fails because he made a general appearance through his counsel at the hearing on the petition and thus consented to the court's exercise of jurisdiction over him.

[08/03] Enovsys LLC. v. Nextel Communications, Inc.
In a patent infringement suit against Sprint Nextel Corporation and its various subsidiaries, claiming that Sprint Nextel's iDEN and CDMA wireless networks infringed two patents covering inventions that use global positioning satellites (GPS) and ground control stations to determine the physical location of mobile devices, jury verdict in favor of plaintiff in finding that Sprint Nextel infringed both patents and an award of approximately $2.78 million in damages, and various rulings against Sprint Nextel are affirmed where: 1) the district court correctly denied Sprint Nextel's motion to dismiss for lack of subject matter jurisdiction as plaintiff had standing to bring and maintain the suit without joining the ex-wife of one of the patents' co-inventors because, giving the California divorce decree the preclusive effect required, the ex-wife had no ownership interest in the asserted patents at the time the case was filed, or anytime thereafter;and 2) the district court correctly denied Sprint Nextel's post-verdict JMOL, as Sprint Nextel waived its right to argue its new claim constructions.

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Probate Trusts

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