News

Case Summaries

Elder Law

[09/30] Wood v. Jamison
In a malpractice action brought by the trustee of 78-year old decedent for defendant-attorney's role in performing legal services for client who convinced decedent that he was her nephew, judgment for damages, attorney's fees and costs based on legal malpractice, breach of fiduciary duty and financial abuse of an elder is affirmed where: 1) defendant failed to advise decedent of a conflict of interest; 2) defendant failed to advise decedent the investment was not appropriate for her, or at least to refer her to an independent investment advisor; and 3) defendant obtained an undisclosed profit from the transaction.

[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.

[01/25] Living Ctrs. of Texas, Inc. v. Penalver
In a wrongful death suit, a court of appeals judgment affirming a ruling in favor of plaintiff is reversed where a jury argument that compared defendant's lawyer's attempts to minimize damages to a World War II Nazi program, in which elderly and infirm persons were used for medical experimentation and killed, was improper and incurable.

Read More

Family Law

[09/30] M.V. v. Superior Court of California
In a family law matter brought by mother seeking reunification with her infant after her incarceration and deportation for engaging in consensual sexual intercourse with a 15-year old boy, petition for a writ of mandate directing the trial court to vacate its order and to issue a new and different order continuing reunification services to a 12-month review is affirmed where the court erred in terminating reunification services and setting a .26 hearing by applying the 12-month review standard pursuant to section 366.21, subdivisions (f) and (g), instead of the six-month review standard pursuant to section 366.21, subdivision (e).

[09/25] In Re: Amendments to Fla. R. Juv. P.
Recommended amendments to the Rules of Juvenile Procedure to conform the rules and forms to recent legislation are adopted with a sixty-day comment period.

[09/25] US v. Kerley
Conviction for failure to pay a child support obligation is vacated and remanded where: 1) the district court did not err in its rulings as to the good faith defense; 2) the rule of lenity required the court to vacate the conviction on the second count of the offense; and 3) although the district court correctly applied the loss amount and obstruction of justice enhancements under the Sentencing Guidelines, the court erred in concluding that the vulnerable victim enhancement was applicable.

[09/23] In re Shane G.
Juvenile court judgment terminating parental rights to minor son is affirmed over claims of error that: 1) evidence was insufficient to support the court's finding the beneficial parent-child relationship and beneficial sibling relationship exceptions did not apply to preclude terminating their parental rights; and 2) reversal is required because the court failed to ensure proper notice under the Indian Child Welfare Act (ICWA).

[09/17] Carmona v. Carmona
In an ERISA battle between the eight and ninth wives of a deceased pension holder, judgment in favor of defendant is affirmed in part and reversed in part because a plan participant's retirement vests Qualified Joint and Survivor Annuity (QJSA) interests in the spouse at time of retirement, cutting off an alternative payee's ability to subsequently obtain a qualified domestic relations order changing the plan's beneficiary.

[09/17] Amanda H. v. Superior Court
Mother's petition for extraordinary writ is granted where the Los Angeles County Department of Children and Family Services (DCFS) did not prove by clear and convincing evidence that it had provided reasonable reunification services.

[09/16] Abbott v. Abbott
In a child-custody suit, denial of return of the child to Chile after the custodial parent removed him in violation of a Chilean court's ne exeat order is affirmed where ne exeat rights, even when coupled with "rights of access," do not constitute "rights of custody" within the meaning of the Hague Convention, and the convention therefore provided no remedy.

[09/15] In re Marriage of Holtemann
In a matter regarding the legal effect of a spousal property transmutation agreement executed during marriage, order issued in favor of petitioner's former wife is affirmed where: 1) the transmutation of separate property to community property was effected, notwithstanding language in the transmutation agreement and trust that purported to qualify, limit or condition the transfer upon the death of either spouse; and 2) the agreement contained an "express declaration" sufficient to transmute petitioner's separate property into community property.

Read More

Probate Trusts

[10/01] Haneline Pacific Properties, LLC v. May
Grant of defendant's anti-strategic lawsuits against public participation (SLAPP) motion is reversed and remanded where: 1) the gravamen of plaintiff's complaint did not relate to contemplated litigation but attempted at persuasion and negotiation between co-owners of property regarding how best to manage their property; 2) because the communications at issue were not covered by the litigation privilege, the anti-SLAPP motion should not have been granted; and 3) plaintiffs failed to develop an argument regarding entitlement to attorney's fees based on finding that anti-SLAPP motion was "frivolous" or "intended to cause unnecessary delay".

[10/01] Gustafson v. zumBrunnen
In a suit alleging negligence and tortious interference against a bank and an attorney for allowing the withdrawal of funds from a bank account that should have been part of a decedent's estate, dismissal for lack of federal diversity jurisdiction is affirmed where: 1) under 28 U.S.C. section 1332(c)(2), the legal representative of an estate suing on its behalf is a citizen of the same state as the decedent; 2) more than one person may be considered a legal representative of an estate for 1332(c)(2) purposes; and 3) under the applicable state law, a suit to bring property into an estate by someone other than the estate's representative was permissible only if the representative had failed to act to secure the property for the estate.

[09/14] Dummar v. Lummis
In a case involving the estate of the late billionaire Howard Hughes alleging that defendants deprived plaintiff of his inheritance by conspiring to cause a jury to reject a Holographic Will in 1978, dismissal of plaintiffs' claims is affirmed where: 1) fraud and federal RICO claims were each time-barred; 2) a Nevada RICO claim failed to state a claim; and 3) an unjust-enrichment claim was barred by issue preclusion.

[09/12] Estate of Kievernagel
In a suit by widow for use of her late husband's frozen sperm to attempt to conceive a child despite signed agreement by late husband to discard sperm upon his death, judgment denying distribution of sperm to widow is affirmed where determining the disposition of gamete material, to which no other party contributed and thus another party's right to procreational autonomy is not implicated, the intent of the donor must control.

[09/04] Masry v. Masry
In a probate matter, judgment finding that husband's revocation from joint trust was valid is affirmed where: 1) the revocation provision in the trust was not explicitly exclusive; and 2) husband's method of revocation complied with Probate Code section 15401, subdivision (a)(2).

[08/27] Estate of Clementi
Denial of petition to revoke probate is affirmed where: 1) the deceased manifested a sufficient intent to create a charitable trust through his will, although his will does not identify a specific charity; and 2) the deceased's stated intent to "give the balance of my assets to a charitable foundation or trust" is sufficient to create the trust.

[08/27] Estate of Heath
Probate court order appointing niece of the deceased as administrator is reversed where the appointed administrator did not "succeed" to a portion of the decedent's estate, as required by Probate Code section 8462(a), by virtue of her mother's assignment of a portion of her interest in the estate to niece. Succession occurs only by operation of law.

[08/13] Estate of Thottam
In a mediation matter relating to distribution of assets to the three children of the deceased, judgment is reversed where: 1) there is nothing in Evidence Code section 1123(c) requiring that an express agreement in writing permitting disclosure be contained in a settlement agreement; 2) the court erred in reading a timing requirement into section 1123(c); 3) the mediation and facilitation confidentiality agreement satisfied the exception to mediation confidentiality under section 1123(c); and 4) there was sufficient evidence before the court to establish the preliminary fact that a chart created at the mediation was a settlement agreement for purposes of section 1123(c).

Read More