Case Summaries
Criminal Law & Procedure
[03/09]
Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.
[03/09]
US v. Wise
Defendant's firearm possession sentence is affirmed where: 1) defendant's prior conviction under Utah law for failure to stop at the command of a police officer was a "crime of violence" under the Sentencing Guidelines; and 2) the district court erred in not assigning criminal history points for one of defendant's prior convictions, but that error did not invalidate defendant's sentence.
[03/09]
US v. Salem
In a prosecution of defendants for wire fraud and receiving stolen funds, district court's sentences based on relevant conduct findings are remanded as the district court made findings as to the reasonableness of the co-schemers' acts only, but it made no finding as to the scope of the jointly undertaken criminal activity under U.S.S.G. section 1B1.3(a)(1)(B).
[03/09]
Redd v. Wright
In a 42 U.S.C. section 1983 action arising out of plaintiff inmate's confinement in tuberculosis hold following his refusal to submit to tuberculosis testing, summary judgment for defendants is affirmed where: 1) prior precedent did not "clearly foreshadow" a holding that the testing policy, as applied in this case, violated plaintiff's Free Exercise rights; 2) it could not reasonably be said that defendants acted in violation of clearly established Eighth Amendment law by implementing the policy; and 3) it was not clearly established that plaintiff was entitled to some kind of notice that religious objectors could be exempt from the policy.
[03/08]
US v. Miller
Dismissal of defendant's petition for a writ of audita querela challenging a restitution order, arising from his conviction for conducting a monetary transaction with criminally-derived funds and evading income tax, is affirmed where: 1) if it still exists, the writ of audita querela can only be applied to rectify a judgment which, though correct when rendered, has since become infirm; and 2) since all parties to this case agree that the district court's restitution order was initially correct, and because the statute does not require the order to be modified every time a subsequent payment is made on a restitution obligation, there is no infirmity in defendant's judgment for a writ of audita querela to rectify.
Family Law
[03/05]
People v. Warwick
Conviction of defendant of child abuse and neglect and jury's true finding on the enhancement that she personally inflicted great bodily injury on her child is affirmed as, when she gave birth to her son in her bedroom and concealed the birth causing severe injuries, defendant inflicted great bodily injury on her child.
[03/05]
Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).
[03/04]
In re E.O.
Juvenile court's denial of a father's request for presumed father status is affirmed as the only provision of Family Code section 7611 that might possibly apply is subdivision (d) which states that a man is a presumed father if he "receives the child into his home and openly holds out the child as his natural child," and here, the father did not establish that he came within this or any of the categories set forth in Family Code section 7611.
[03/03]
Mendoza v. Ramos
In a father's petition to modify custody and support orders of his four children, the court's judgment is affirmed where: 1) trial court's refusal to attribute income because the mother was receiving CalWORKs was proper; and 2) the father's rights were not violated as neither parties requested testimony.
[02/26]
In Re Marriage of MacManus
In marital dissolution proceedings, trial court's order reallocating back child support to back spousal support is affirmed as, the order was not an abuse given the trial court's broad discretion to consider the "big picture" concerning the parties' assets and income available for support in light of the marriage standard of living.
Injury & Tort Law
[03/09]
Zia Trust Co. v. Montoya
In an action for excessive force brought by family members of a man defendant-officer shot and killed while responding to a domestic disturbance, denial of summary judgment based on qualified immunity is affirmed where the court could not say that a van fifteen feet away, which according to the plaintiffs was clearly stuck on a pile of rocks, gave defendant probable cause to believe that there was a threat of serious physical harm to himself or others that would justify his use of force.
[03/09]
Espinosa v. City & County of San Francisco
In a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers, denial of summary judgment based on qualified immunity is affirmed where: 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.
[03/05]
Bustos v. Martini Club Inc.
In a 42 U.S.C. section 1983 action based on a late-night confrontation with several off-duty police officers, dismissal of the action is affirmed where: 1) the election of remedies provisions in Tex. Civ. Prac. & Rem. Code 101.106 applied to state law intentional tort claims against a governmental unit and its employees; 2) plaintiff did not allege facts to suggest that the officers who assaulted him misused or abused their official power; and 3) bystander officers had no constitutional duty to prevent the alleged assault.
[03/05]
Howard v. St. Germain
In an appeal from the district court's order assessing attorney's fees against defendants based on their improper removal of the case, the order is affirmed where the district court did not abuse its considerable discretion in taxing costs and attorney's fees to defendants because an objectively reasonable basis for removal did not exist.
[03/05]
Doe v. S. Carolina Dep't of Soc. Servs.
In a 42 U.S.C. section 1983 action brought by a minor child and her adoptive parents against defendant, an Adoption Specialist with the South Carolina Department of Social Services (SCDSS), alleging violations of their substantive due process rights under the Fourteenth Amendment and state law claims against SCDSS under the South Carolina Tort Claims Act (SCTCA), judgment is affirmed in part, vacated in part, and remanded where: 1) when a state involuntarily removes a child from her home, thereby taking the child into its custody and care, the state has taken an affirmative act to restrain the child's liberty, triggering the protections of the Due Process Clause and imposing "some responsibility for the child's safety and general well being"; 2) because it would not have been apparent to a reasonable social worker in defendant's position that her actions violated the Fourteenth Amendment, she is entitled to qualified immunity; 3) prospective adoptive parents have no substantive due process right to the disclosure of a child's history of sexual abuse; and 4) district court's grant of defendants' motion for summary judgment on the state law claims for gross negligence against SCDSS is vacated and remanded for consideration of the applicability of section 15-78-60(25).
Professional Malpractice
[03/04]
Aills v. Boemi
In plaintiff's medical malpractice suit against defendant plastic surgeon arising out of negligence in connection with an elective surgical procedure for breast reconstruction, the judgment of the Second District Court of Appeal is quashed and remanded as the district court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.
[03/03]
Willis v. Bender
In an action for lack of informed consent and medical malpractice, judgment for defendant is affirmed in part where there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence. However, the judgment is reversed in part where defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed".
[03/03]
Oasis W. Realty, LLC v. Goldman
In an appeal involving defendants' anti-SLAPP special motion to strike (Code of Civil Procedure section 425.16) plaintiff-former client's suit for various causes of action including breach of fiduciary duty, arising from defendants' prior representation in connection with plaintiff's efforts to redevelop real estate it owned in Beverly Hills, trial court's conclusion that section 425.16 did not apply because the gravamen of the action was breach of an attorney's duties of loyalty and confidentiality is reversed as all causes of action in the complaint arose from acts in furtherance of protected activity, and plaintiff could not show a probability of prevailing at trial.
[03/02]
Davis v. Brouse McDowell, LPA
In plaintiff's legal malpractice suit claiming that defendants failed to timely file three patent applications related to a website-search engine, summary judgment in favor of the defendants is affirmed where: 1) the district court exercised proper jurisdiction over plaintiff's malpractice cause of action; 2) the court did not abuse its discretion in striking portions of the supplemental affidavit of plaintiff's patent law expert; and 3) plaintiff failed to introduce evidence sufficient to establish a genuine issue of material fact as to the patentability of her inventions.
[02/26]
Aills v. Boemi
In plaintiff's medical malpractice suit against a plastic surgeon for negligence in connection with a procedure of breast reconstruction, the decision of the second district court of appeal reversing a judgment in favor of plaintiff is quashed and remanded as the court erred in reversing for a new trial on the basis of an improper argument by plaintiff's counsel during closing argument.