Case Summaries

Ethics & Professional Responsibility

[06/26] Florida Bar v. Glueck
Upon review of a referee's report recommending that respondent be found guilty of professional misconduct and be suspended from the practice of law for three years, the court affirms the recommendation of guilt and changes the punishment to disbarment over claims of error regarding: 1) a finding that respondent formed a partnership with a non-lawyer; 2) whether the partnership's activities did not conduct constitute the practice of law; 3) findings of fact that respondent made misrepresentations to the Bar during its investigation; 4) findings of fact to support the recommendation of misconduct with regard to clients; and 5) the referee's failure to find mitigating factors.

[06/26] Commodity Futures Trading Comm'n v. Wilshire Inv. Mgmt. Corp.
In a case involving defendants' misconduct in its commodities trade practices, judgment awarding restitution, imposing civil penalties, and issuing a permanent injunction pursuant to defendants' violations of the Commodity Exchange Act is vacated and remanded in part where the district court abused its discretion in awarding restitution in the full amount of customer loss rather than the sum which defendant wrongfully gained by their misrepresentations, as the equitable remedy of restitution does not consider plaintiff's losses, but only focuses on defendant's unjust enrichment.

[06/25] People v. Grasso
In an action charging defendant Richard Grasso, former chairman and CEO of a public corporation, with receiving excessive compensation from NYSE, judgment for defendant is affirmed where: 1) each of the challenged causes of action sought to ascribe defendant's liability based on the mere "size" of his compensation package; however; 2) the legislature's specifically enacted statute requires more to overcome the hurdles of the business judgment defense.

[06/25] Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Cmty. Synagogue
In an action for breach of fiduciary duty against a cleric-defendant premised on his alleged inducement of a consenting sexual relationship which lasted for over 3 years, the court of appeals finds no breach of fiduciary duty when: 1) plaintiff had only shown that she was deceived by the cleric, not that she was vulnerable as to surrender her will and capacity to determine her own best interest; and 2) in absence of a prima facie showing of a fiduciary obligation owed by defendant, no cause of action can be maintained for an extended voluntary sexual affair between consenting adults, even if plaintiff could prove that her acquiescence was obtained through lies, manipulation, or other morally opprobrious conduct.

[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.

[06/24] Dicarlo v. St. Mary Hosp.
In a class action suit asserting numerous claims against several medical care defendants for their billing practices to uninsured patients, grant of defendants' motion for judgment on the pleadings is affirmed where the district court's analysis correctly stated the law with respect to each of plaintiff's claims on unjust enrichment, breach of contract, defendant's alleged violation of state consumer protection law and breach of fiduciary duties.

[06/24] Gray v. Branker
Denial of a petition for habeas relief from a conviction for first degree murder and death sentence is reversed in part and the case remanded for re-sentencing where: 1) counsel rendered ineffective assistance by failing to investigate and develop, for sentencing purposes, evidence that petitioner suffered from a severe mental illness, and it was reasonably probable that this failure prejudiced the outcome at sentencing; and 2) a state court's denial of denial of such claim was contrary to, and an unreasonable application of, the standards set out in Strickland.

More...

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.

More...

Workers' Comp

[07/03] State Comp. Ins. Fund v. WCAB
The California Supreme Court finds that the Legislature intended to require employers to conduct utilization review when considering requests for medical treatment, and employers may not use Labor Code section 4062 as an alternative method for disputing employees' treatment requests.

[07/03] BNSF Ry. Co. v. Swanson
Provisions of Minnesota Statute sections 609.849(a)(1) and (a)(2), governing a railroad's treatment of injured workers, are both preempted by the Internal Control Plans regulations adopted by the Federal Railroad Administration pursuant to the Federal Railroad Safety Act.

[07/02] Anderson v. Commerce Construction Services, Inc.
In an action for negligence arising out of a Nebraska subcontractor's employee's injuries while performing demolition work in Kansas, summary judgment for defendant is affirmed where: 1) Kansas courts would have applied the lex loci delicti choice of law rule whereby the state where the tort occurred governs the merits of the litigation; 2) Kansas courts have only applied section 185 of the Restatement (Second) of Conflict of Laws to cases dealing with subrogation; and 3) application of section 184's most significant relationship test would result in defendant prevailing.

[07/02] Wakkinen v. UNUM Life Ins. Co. of Am.
In an ERISA action, summary judgment for defendant upholding its denial of long-term disability benefits under an employer-offered plan is affirmed where substantial evidence supported plan administrator's finding that claimant was not "continuously disabled" through the 180 days of his elimination period as defined within the policy in dispute.

[06/23] Barr v. WCAB
The Workers' Compensation Appeals Board has the discretion to award costs for preparing a vocational rehabilitation consultant's report, regardless of whether or not the report itself is admissible as evidence under Labor Code section 5703.

[06/17] Leighton v. Office of Personnel Management
A decision holding that the Office of Personnel Management (OPM) properly computed petitioner's Federal Employees' Retirement System (FERS) disability retirement annuity is affirmed where: 1) the statute used to compute FERS disability annuities refers to SSA payments as computed under section 223 of the Social Security Act and not under section 224; and 2) the SSA disability benefit must be determined before the SSA applies any offsets for OWCP compensation in order to avoid any duplicate payments.

[06/13] Johnson v. Comm'r of Soc. Sec.
Denial of a claim for disability insurance benefits under Title II of the Social Security Act is affirmed where: 1) the ALJ conducted an exhaustive evaluation of evidence adduced in the case; and 2) the ALJ's final conclusion in finding claimant not disabled was supported by substantial evidence.

More...