LEGAL UPDATE - 8/04
Civil Procedure
Rietveld v. Rosebud Storage Partners, L.P (California Court of Appeal)- Trial judge did not abuse discretion in imposing monetary sanctions of $2,380, representing attorney fees incurred by opposing litigant, on counsel who failed to participate meaningfully in judicial arbitration where counsel, in violation of local rule, failed to provide arbitrator with copies of the complaint and answer and an arbitration brief, and did not procure attendance of clients or have them available by telephone.
Rietveld v. Rosebud Storage Partners, L.P. - filed July 30, 2004, Third District
Cite as 2004 SOS 4109
Plaintiff sued former employer for breach of contract and fraud which resulted in an MSJ in favor of employer. Prior to the MSJ the parties were ordered to arbitration. Plaintiff's counsel was ordered to submit a copy of the complaint, answer and an arbitration 10 days before the arbitration. He failed to submit any documents, evidence or his clients. The arb award was in favor of Defendants and Counsel filed a De Novo. Defendants filed a motion for sanctions based on Plaintiff's counsel's failure to participate in the arbitration. Sanctions were ordered in the amount of $3,055.50 and then reduced to $2,380.00. Court affirmed the sanctions under CCP 575.2. Attorney filed a terrible brief, made weak arguments such as he was not obligate to file documents since it was non-binding arbitration.
Lecuyer v. Sunset Trails Apartments (California Court of Appeal)- Code of Civil Procedure Sec. 1013(a), which generally requires that five days' additional notice be given when documents are served by mail, applies to the 10-day notice requirement set forth in Sec. 998(b), which requires that a Sec. 998 settlement offer be served "[n]ot less than 10 days prior to commencement of trial"; settlement offer mailed less than 15 days before trial was not a timely Sec. 998 offer and trial court erred in ruling that Sec. 998 applied.
Lecuyer v. Sunset Trails Apartments - filed July 21, 2004, Fourth District, Div. One
Cite as 2004 SOS 3749
Kulshrestha v. First Union Commercial Corporation (California Supreme Court)- Declarations signed under penalty of perjury outside this state do not satisfy Code of Civil Procedure Sec. 2015.5 and are thus inadmissible in summary judgment and other authorized proceedings unless the contents are certified as true "under the laws of the State of California."
Kulshrestha v. First Union Commercial Corporation - filed July 19, 2004
Cite as 2004 SOS 3693
Vineyard Springs Estates, LLC v. Superior Court (Wyatt) (California Court of Appeal)- Trial court violated mandatory duty by failing to rule on defendant's evidentiary objections to plaintiff's response to motion for summary judgment, and denial of summary judgment, based upon triable issue established by the objected-to evidence, was error.
Vineyard Springs Estates, LLC v. Superior Court (Wyatt) - filed July 12, 2004, Third District Cite as 2004 SOS 3589
This was a premises liability case. Plaintiff was walking onto the sidewalk from the parking lot of a shopping center where she was assaulted and robbed. There were piror complaints about similar conduct to put Defendant on notice. Defendant claimed it had no notice and filed an MSJ. In opposition, Plaintiff filed a declaration of her attorney who found a report on the criminal activity occurring at the shopping center for that previous two years. A request for Judicial Notice was made for the report. Plaintiff did not oppose the facts in defendants separate statement only offered the report. The court did not make a ruling on the evidentiary objections despite the requests and the court's indication that it would do so.
Schwarzenegger v. Fred Martin Motor Company (Ninth Circuit) - Act of Ohio car dealership in placing advertisement, including a photograph of Arnold Schwarzenegger that allegedly infringed his right of publicity, in Ohio newspaper was expressly aimed at Ohio, not California, and did not support personal jurisdiction over company in California.
Schwarzenegger v. Fred Martin Motor Company - filed June 30, 2004
Cite as No. 0256937
Labor and Employment Law
Nyulassy v. Lockheed Martin Corporation (California Court Of Appeal) - Where settlement of prior dispute between employer and employee required employee to enter into non-negotiable standard agreement requiring employee--but not employer--to arbitrate any future dispute, such agreement was unconscionable and unenforceable.
Nyulassy v. Lockheed Martin Corporation - filed July 27, 2004, Sixth District
Cite as 2004 SOS 3935
Plaintiff sued Defendant for a demotion he claims was retaliatory for his complaints about the treatment of the employees. Defendant filed a motion to compel arbitration which was denied and Defendant appeal. The settlement provided for payment and a new job with Defendant but he had to sign an employment agreement and agree to arbitration. His attorney in the previous action declared that the terms were not negotiable as it was offered after 3 years of litigation on the eve of trial. Defendants did not offer any evidence to the contrary. If the facts present themselves, be sure to argue the contracts are not of adhesion.
Family Law
Michael J. v. Superior Court (Rogers) (California Court Of Appeal)- Conservator of the person and the estate of a mentally disabled person--who is unable to communicate wishes--lacks the power to initiate and prosecute a petition for dissolution of conservatee's marriage but may, subject to the approval of the probate court, petition for legal separation.
Wife suffered brain damage during child birth which resulted in a settlement. Husband was appointed the Conservator but was later removed as such. He began to have affairs and so the Conservator attempted to commence a dissolution proceeding. Lower court allowed the Conservator to proceed with the dissolution proceeding. Husband appealed and the higher court overturned the decision. Ct reasoned that where the wife could not express her wishes, a Conservator could not commence a dissolution action. He could commence a separation action as he has control over the financial affairs. The control over the person is more restricted and should not include the power to dissolve someone's marriage.
Michael J. v. Superior Court (Rogers) - filed June 30, 2004, Fourth District, Div. Three Cite as 2004 SOS 3335
