jovialcrownbeliever

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In borrower's wrongful foreclosure action

Overview

HOLDINGS: [1]-In borrower's wrongful foreclosure action, negligent & intentional misrepresentation claim, based on loan servicer's alleged misrepresentations in connection with a loan modification, was dismissed because the borrower did not sufficiently allege that he acted in reliance on the alleged misrepresentations or that he suffered any damages as a result of the servicer's conduct; [2]-The borrower's negligence claim was dismissed because he did not sufficiently allege that the servicer owed him a duty of care; [3]-The borrower's claims under Cal. Civ. Code §§ 2923, 2923.7 were preempted by the Home Owners Loan Act of 1933 (HOLA) because they fell into the enumerated categories of state law preempted by 12 C.F.R. § 560.2(b); [4]-The borrower's Cal. Civ. Code § 2924 claim was preempted by HOLA because it would effectively regulate the servicer's sale or purchase of mortgages.

Outcome

Trial attorneys Orange County CA represent plaintiffs and defendants in civil lawsuits. They manage all phases of the litigation from the investigation, pleadings, pre-trial, trial, settlement, and appeal processes. Motion to dismiss granted.

 Procedural Posture

Plaintiff trademark owner sued defendant, an importer/distributor, for (1) false designation of origin under 15 U.S.C.S. § 1125(a); (2) trademark dilution under 15 U.S.C.S. § 1125 and Cal. Bus. & Prof. Code § 14330; (3) trademark infringement under 15 U.S.C.S. § 1114; and (4) unfair competition under Cal. Bus. & Prof. Code §§ 17200 and 17500, and California common law. The parties cross-moved for summary judgment.

Overview

Plaintiff provided technology allowing consumers to experience five-channel surround sound through devices such as digital video disc (DVD) players. Manufacturers and distributors of DVD players and other devices could apply to plaintiff for a license to display one or more of plaintiff's registered trademarks on their devices. Defendant imported and distributed DVD players. Beginning in late 2001, and continuing through at least the end of 2002, defendant imported and sold at least 1,355,141 DVD players bearing plaintiff's registered trademarks, but it did not hold a license from plaintiff. The undisputed evidence showed that defendant's DVD players bearing plaintiff's registered trademarks were manufactured and sold without plaintiff's authorization and quality control certification. Thus, defendant was liable to plaintiff under its Lanham Act and state unfair competition claims because defendant imported and sold DVD players that displayed plaintiff's registered trademarks without obtaining plaintiff's authorization to use its trademark. But the court declined to award damages at this juncture, so that the parties could present evidence on the issue of damages claims at trial.

Outcome

Summary judgment was granted in favor of plaintiff and against defendant with respect to liability on each of plaintiff's claims. Defendant's cross-motion for summary judgment was denied.

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The court denied a creditor's motion for a new trial

Overview

HOLDINGS: [1]-The court denied a creditor's motion for a new trial and/or relief from its findings of fact and conclusions of law in a debtor class action claiming that the creditor violated 15 U.S.C.S. § 1693k(1) of the Electronic Funds Transfer Act (EFTA), when it conditioned its extension of credit on borrowers' repayment by preauthorized electronic funds transfers, because the U.S. Supreme Court's decision in Spokeo, Inc. v. Robins did not compel the finding that a class representative lacked U.S. Const. art. III standing under the EFTA as a violation of her right under § 1693k(1) was a legally cognizable, concrete injury; [2]-As the issue of standing under California's Unfair Competition law (UCL), Cal. Bus. & Prof. Code § 17200, was never raised before the post-trial briefs, the court permitted the class representative to present testimony as to her standing under the UCL.

Outcome

An attorney for lawsuit San Diego manages large and small legal issues in lawsuits that any business may need to negotiate as a regular course of business. Creditor's motion denied, class of debtors' motion granted in part and denied in part.

 Procedural Posture

On remand, appellant insureds sought reconsideration of a decision that affirmed the dismissal of appellants' breach of insurance contract action, arising out of respondents' refusal to defend appellants in a property mismanagement suit.

Overview

Appellant insureds were sued for the alleged mismanagement of a third party's property. Appellants sought to have respondent insurers defend them in the lawsuit under their liability insurance policies, but respondents refused. Thereafter appellants brought a breach of contract action against respondents. Respondents filed a demurrer, which the trial court sustained without leave to amend; it subsequently dismissed appellants' complaint. Appellants sought further review. On appeal, the court reversed and directed the court to grant appellants' leave to amend. The court examined the policies issued by respondents and held that respondents had a duty to defend. The court held that the third party lawsuit for interference with a prospective economic advantage was identical to the cause of action for unfair competition that was covered by the policies. The court found that appellants' complaint as originally presented failed to set forth their causes of actions with specificity, but held that these flaws could have been corrected if appellants had been given an opportunity to amend their complaint.

Outcome

The court reversed and directed that the trial court grant appellant insureds leave to amend their complaint because respondent insureds' policies required the duty to defend, and the lack of specificity in appellants' complaint could have been cured by an amendment.

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Procedural Posture

Procedural Posture

Counter-claimants, a construction company and two individuals, filed a counterclaim alleging breach of contract, bad faith, and unfair business practices under Calif. Bus. & Prof. Code § 17200. Pursuant to Fed. R. Civ. P. 12(b)(6), counter-defendants, sureties A, B, and C, moved to dismiss the counterclaim.

Overview

Civil trial attorneys specialize in defending clients before a court of law and in giving legal advice, conducting lawsuits, etc. The counterclaim arose from the alleged breach of a joint control trust account agreement (contract). Neither the complaint nor the counterclaim reflected that surety A was a signatory to the contract. The counter-claimants' argument that the counterclaim adequately pled surety A's liability based on theories of alter ego and/or single enterprise was rejected. The bare allegations were without any factual support and failed to set forth a coherent narrative of which theory applied to which relationship, and were thus insufficient to put the sureties on notice as to what acts they had committed that resulted in surety A's liability for breaching a contract to which it was not a party. The counter-claimants also claimed that the sureties committed the tort of bad faith by allegedly breaching the terms of the contract. However, under California law and policy, the tort of bad faith breach of implied covenant did not exist against a surety. Given the flexible nature of the definition of unfair under § 17200, the counter-claimants alleged sufficient facts in its breach of contract claim for there to be a possibility that it could prove that the sureties acted unfairly.

Outcome

The sureties' motion to dismiss the breach of contract and bad faith causes of action was granted with leave to amend. Their motion to dismiss the unfair business practices cause of action was denied.

 Procedural Posture

Petitioner county appealed the decision of respondent Workers' Compensation Appeals Board (Califormia), which found that respondent applicant was an employee of petitioner under the Workers' Compensation Act and that respondent was not excluded under Cal. Lab. Code § 3352(b). Petitioner contended that respondent was not an employee while he worked for welfare payments, under Cal. Welf. & Inst. Code §§ 17000, 17200.

Overview

Respondent applicant received welfare payments from petitioner county, under Cal. Welf. & Inst. Code § 17000. He was assigned to work at a school district in order to receive the payments, under Cal. Welf. & Inst. Code § 17200. After he was injured, respondent California Workers' Compensation Appeals Board found that petitioner county was liable for benefits. The court annulled the decision and remanded the cause back to respondent board because the court found that respondent applicant was not an employee for workers' compensation purposes under Cal. Lab. Code § 3352, which excluded from the definition of employee any person who performed services in return for aid or sustenance only, received from any religious, charitable, or relief organization. The court found that petitioner county was a charitable or relief organization and that respondent applicant performed services in return for aid or sustenance only. The court also found that the respondent applicant was not under any program that required workers' compensation coverage, but had received relief pursuant to Cal. Welf. & Inst. Code §§ 17000 et seq.

Outcome

The court annulled the decision of respondent California Workers' Compensation Appeals Board and remanded the cause back to the board after the court found that the Workers' Compensation Act did not, in general, cover welfare recipients and that respondent applicant was not an employee within the meaning of the Act, which meant that he was not entitled to coverage.

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The court declined to allow plaintiffs to reassert their fraud claim

Overview

HOLDINGS: [1]-The court declined to allow plaintiffs to reassert their fraud claim because plaintiffs' fraud claims were barred because the documents referenced by the office service agreement disclosed the additional fees; [2]-The court declined to allow plaintiffs to add a new class representative because it would have further delay the litigation, and such a delay would not have advanced the interests of the putative class; [3]-The proposed amendment regarding Cal. Bus & Prof. Code § 10130 was futile because plaintiffs failed to establish a direct causal connection between the alleged harm (the assessment of additional, undisclosed fees) and the alleged statutory violation (failure to obtain a realtor's license), and whether or not defendants were required to obtain a license had no bearing on whether their practice of assessing additional fees was unfair or unlawful.

Outcome

A commercial litigation lawyer deals with non-criminal areas of legal dispute and will help you defending lawsuits or filing legal claims. Motion denied.

 Overview

HOLDINGS: [1]-The court denied in part a bank's motion to dismiss a borrower's action for breach of contract because the allegations of the first amended complaint superseded the original complaint, and his general assertion of dates could put his claim within the four-year time limitations; [2]-The borrower's breach of contract claim survived because his statement of the relevant terms of the purported loan modification agreement sufficiently alleged the legal effect of the contract; [3]-The borrower failed to state claims under Cal. Civ. Code §§ 2924c and 2924f because he failed to plead that he could have paid the arrear - vague allegations that his friends and family could have helped were not sufficient; [4]-The borrower failed to state a claim for negligence because the lender did not owe him a duty of care when considering his loan modification applications.

Outcome

Motion granted in part, denied in part.

[jovialcrownbeliever]

Defendant city appealed from a judgment of the Superior Court of Los Angeles County

Defendant city appealed from a judgment of the Superior Court of Los Angeles County (California) awarding approximately $ 3 million (plus interest and attorney fees) in an action brought by plaintiff for a refund of business taxes paid to defendant and also san diego california minimum wage.

   Defendant city's business tax scheme imposed a payroll expense tax and a business license tax upon those engaging in business within defendant's borders, but exempted taxpayers who were subject to either one of the taxes from paying the other. The trial court found defendant's taxing scheme violated state and federal constitutional proscriptions against restraint of commerce with respect to in-city manufacturers selling outside the city, and awarded damages and attorney fees. The court vacated the attorney fee award but otherwise affirmed. The tax scheme directly discriminated against interstate and intercity taxpayers doing business in the city. Also, under the internal consistency test interstate and intercity taxpayers would be presumed to pay two taxes where local taxpayers would pay only one. However, plaintiff was not entitled under 42 U.S.C.S. §§ 1983 and 1988 to attorney fees because plaintiff had an adequate state remedy of a tax refund.

   The award of attorney fees was reversed and vacated. In all other respects, the judgment was affirmed because the taxing scheme violated state and federal constitutional proscriptions against restraint of commerce with respect to in-city manufacturers selling outside the city.

 Cross-appeals were taken from a judgment from the Superior Court of the City and County of San Francisco (California), which ruled in plaintiff taxpayer's favor on a disputed interest deduction, ruled against the taxpayer on the issue of dividend ordering, and concluded that the taxpayer was entitled to the full refund it sought from defendant, the California Franchise Tax Board (FTB). The taxpayer's request for attorney fees was denied.

   The taxpayer, a California corporation, received dividend income from wholly owned foreign subsidiaries. FTB applied a last-in-first-out (LIFO) proration of income, treating the dividends as paid first from current year's earnings, and then from the most recent prior years' earnings on a year-by-year basis. FTB disallowed an interest deduction on domestic borrowing. The court determined that the taxpayer could appeal the dividend ordering issue as a party aggrieved under Code Civ. Proc., § 902, because the issue was not immaterial. The court held that LIFO ordering as between tax years did not contravene the policy of Rev. & Tax. Code, § 25106, to prevent double taxation and was consistent with I.R.C. § 316, as incorporated into California law by former Rev. & Tax. Code, § 24495. The taxpayer was entitled to the interest deduction under Rev. & Tax. Code, § 24425, because its borrowing was for its taxable domestic activities. Attorney fees were properly denied under Rev. & Tax. Code, § 19717, subd. (c)(2)(B)(i), because FTB's position was substantially justified. The absence of a significant public benefit precluded a fee award under Code Civ. Proc., § 1021.5.

   The court affirmed the judgment.

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Appellant attorney sought review of a postjudgment order from the Superior Court of Los Angeles County

Appellant attorney sought review of a postjudgment order from the Superior Court of Los Angeles County (California), which, after finding respondent client liable in an action brought to recover unpaid fees for legal services, denied a request for contractual attorney fees under caci instructions Civ. Code, § 1717.

   The attorney used the phrase "law firm" in combination with his surname as a fictitious business name. The caption of the pleading indicated that the two attorneys of record in the case were attorneys for the law firm. One of the attorneys of record stated in a declaration that he was a member of the law firm and that the law firm was the plaintiff. The court held that ample evidence supported the trial court's determination that the law firm operated as an actual law firm and that the attorney was not a sole practitioner who had retained other attorneys to represent his interests. Settled case law precluded law firms and attorney litigants from recovering attorney fees for self-representation. The attorneys of record were associates of the law firm and represented the firm's interests in working to recover fees owed by the client. Accordingly, the case was governed by the general rule that a law firm representing itself in litigation could not recover attorney fees for the services of its own attorneys, and the trial court properly denied the request for fees.

   The court affirmed the order.

 In awarding attorney fees to plaintiff pursuant to Code Civ. Proc., § 1021.5, the trial court could have reasonably concluded that the action advanced the public's interest in the lawful operation of charter schools and the legislature's oversight objectives reflected in the Charter Schools Act's location requirements. The trial court could have found that through this action plaintiff helped preserve the constitutionality of charter schools; [2]-Although the trial court ultimately denied plaintiff's petition for writ of mandate, its denial did not reflect adversely on the merits for plaintiff's claims. Given these circumstances, the trial court could have concluded that plaintiff's attorneys reasonably expended all its listed hours. On this record, the appellate court could not conclude the trial court abused its discretion in awarding plaintiff all its requested fees.

   Judgment affirmed.

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Plaintiff former model sued defendant food company, alleging causes of action

Plaintiff former model sued defendant food company, alleging causes of action for misappropriation of likeness in violation of jury instructions california Civ. Code, § 3344, common law misappropriation of likeness, quantum meruit, and unjust enrichment. A jury of the Los Angeles County Superior Court, California, awarded the former model $ 330,000 in damages and over 15 million dollars in profits. The former model was also awarded attorney fees. The company appealed.

   The company had used the former model's image on its instant coffee label without his consent and without compensating him. The court held that the single-publication rule applied to the former model's § 3344 cause of action. In the absence of the single-publication rule, the litigation would have become unwieldy and potentially endless with every coffee can, print, television, and electronic advertisement generating a separate cause of action. A two-year statute of limitations applied to the appropriation causes of action. Unless a reasonable person in his position would have had no meaningful ability to discover the publication, the former model was required to file suit within two years of when the company first published his image or republished his image. The company knowingly used the former model's image without his consent. The former model was not required to show that the company had actual knowledge that he did not consent to the use of his likeness. Section 3344 applied even though the former model was not a celebrity. However, he failed to provide substantial evidence showing that the 15 million dollar profit award was attributable to the use of his image.

   The judgment and the order awarding attorney fees were reversed, and the case was remanded to the trial court for retrial.

 Invoices that a county received from its outside counsel were confidential communications within the meaning of Evid. Code, § 952, and thus were entitled to the protection of the attorney-client privilege under Evid. Code, § 954, because a declaration established that the invoices were kept confidential and because the invoices were made in the course of an attorney-client relationship when outside counsel represented the county in the litigation from which the invoices arose; [2]-Accordingly, the county met its burden under Gov. Code, § 6255, subd. (a), to show that the invoices were documents protected by the attorney-client privilege and thus exempt from public disclosure under Gov. Code, § 6254, subd. (k), as expressly preserved by Cal. Const., art. I, § 3, subd. (b)(5); the exemption could not be construed more narrowly than the privilege itself.

   Writ petition granted.

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San Francisco's charter incorporated the attorney-client privilege

Because San Francisco's charter incorporated the attorney-client privilege of Evid. Code, § 954, for the city attorney's communications pursuant to california civil jury instructions S.F. Charter, §§ 6.100, 6.102, and written communications between the San Francisco Ethics Commission and the city attorney fell within the scope of the attorney-client privilege, the charter superseded S.F. Admin. Code, § 67.24, subd. (b)(1)(iii), to the extent the ordinance purported to compel disclosure of documents within the privilege; [2]-The narrow construction required by Cal. Const., art. I, § 3, subd. (b)(2), did not affect the charter's creation of an attorney-client relationship; [3]-The statutory exemption from disclosure in Gov. Code, § 6254, subd. (k), applied to public records protected by the attorney-client privilege; [4]-As to written communications, Gov. Code, § 54956.9, did not abrogate the privilege.

   Mandate relief granted.

 Defendants, four individuals, a public golf course, a corporation, and a limited partnership, sought review of an order of the Superior Court of Alameda County (California), which granted the motion filed by plaintiff investors to compel three of the individual defendants to answer at depositions pursuant to Cal. Civ. Proc. Code § 2034.

   Defendants, four individuals, a public golf course, a corporation, and a limited partnership, resisted efforts by plaintiff investors to have three defendants answer at depositions pursuant to Cal. Civ. Proc. Code § 2034 in an action filed by plaintiffs arising from controversies concerning the ownership and operation of a public golf course. Defendants contended that one of the attorneys associated with the attorneys for the plaintiffs formerly occupied an attorney-client relationship with some of the defendants. On appeal, the court held that the evidence supported findings that the attorney in question was never an attorney for any of the complaining parties, and that he never acquired, in any capacity, any knowledge of the confidential affairs of the corporation, the limited partnership, nor the parties interested in those business entities. While the complaining parties alluded to certain information, that information was found to be in the records of the Corporation Commissioner of the State of California and were a matter of public information. The court held that the attorney was not disqualified to represent the plaintiffs and affirmed the trial court's order.

   For the reasons set forth below it is concluded that the trial court's ruling that the attorney was not disqualified to represent the plaintiffs is sustained by the evidence, and that the order must be affirmed.