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  Friday, March 29, 2019  
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The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise www.metnews.com. Summaries from the past 90 days are archived and searchable on the LACBA Web site at www.lacba.org/news-and-publications/daily-ebriefs.
NINTH U.S. CIRCUIT COURT OF APPEALS
Order
Americans for Prosperity Found v. Becerra - filed March 29, 2019
Cite as 2019 S.O.S. 16-55727
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CALIFORNIA COURT OF APPEAL
Civil Procedure
The litigation privilege of Civil Code Sec. 47(b) does not bar a fraudulent transfer cause of action where the gravamen of that cause of action is the non-communicative act of transferring assets by executing on a judgment.

Chen v. Berenjian - filed March 29, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 1457
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Consumer Protection
Where a business conditions its offer to remedy a violation of the Consumer Legal Remedies Act on the consumer waiving his right to injunctive relief and remedies under other statutes and common law, the offer is not an appropriate correction offer and the offer does not bar a lawsuit by the consumer. An offer is not an appropriate correction offer if its terms require that the consumer consent to additional settlement terms unrelated to the compensation necessary to make the consumer whole.

Valdez v. Seidner-Miller, Inc. - filed March 27, 2019, Second District, Div. Seven
Cite as 2019 S.O.S. 1461
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Criminal Law and Procedure
The Legislature's primary consideration in establishing eligibility for military diversion was not the type of misdemeanor involved but the suffering of a military or former military member from a traumatic condition related to his military service. The Legislature clearly intended to include military defendants accused of misdemeanor drunk driving offenses within the scope of the military diversion statute. The intent of military diversion is to enable trial courts to grant pretrial diversion for eligible military defendants to obtain specialized treatment for a service-related trauma or condition, with the goal for that individual to avoid the impediment of a misdemeanor record.

Wade v. Superior Court (People) - filed March 28, 2019, Sixth District
Cite as 2019 S.O.S. 1467
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Criminal Law and Procedure
A disposition order committing a minor to juvenile hall until age 21 unless he successfully completes a Youthful Offender Treatment Program does not impermissibly delegate authority to a probation officer to determine the length of the minor's commitment since the court retains the supervisory authority to determine whether and when the minor successfully completes the program and, therefore, whether and when he will be released early from juvenile hall.

In re J.C. - filed March 28, 2019, First District, Div. Five
Cite as 2019 S.O.S. 1475
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Criminal Law and Procedure
A defendant's felony indecent exposure offense did not involve a threat to use force or violence likely to produce substantial physical harm where his offensive conduct was directed at a female correctional officer who stood a substantial distance away from him in a secure location, there was no evidence the defendant ever attempted to make physical contact with the officer, and there was no evidence the defendant had exhibited aggressive, forceful, or violent behavior toward anyone. Other crimes a prisoner may have committed in perpetrating his commitment offense are irrelevant to the determination whether that offense meets the criteria for mentally disordered offender treatment.

People v. Warren - filed March 28, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 1478
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Criminal Law and Procedure
A trial court's decision to discharge a juror for failing to perform his duties under Penal Code Sec. 1089 is reviewed under a "demonstrable reality" standard, requiring a showing that the trial court "did rely on evidence, that in light of the entire record, supports its conclusions" that a juror was actually unable to perform.

People v. Salinas-Jacobo - filed March 28, 2019, First District, Div. Two
Cite as 2019 S.O.S. 1482
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Criminal Law and Procedure
The Supreme Court's decision in People v. Page does not preclude felony punishment for unlawful driving of a vehicle in violation of Penal Code Sec. 10851. No absurd consequences result from punishing the theft of a vehicle under Sec. 10851 less harshly than the unlawful driving of a vehicle under the same statute, and there is no violation of equal protection. Where a trial court violated a defendant's Sixth Amendment right to a jury trial by relying on an ambiguous record consisting of guilty pleas concerning robberies committed in another state, the appropriate remedy is a remand for the prosecutor to have an opportunity to establish the requisite proof in accordance with People v. Gallardo.

People v. Morales - filed March 28, 2019, First District, Div. Four
Cite as 2019 S.O.S. 1490
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Criminal Law and Procedure
A conviction under Penal Code Sec. 530.5(c) is not subject to reclassification under Proposition 47 because Sec. 490.2 only reclassifies theft offenses, a violation of Sec. 530.5(c) is a nontheft offense.

People v. Weir - filed March 29, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 1494
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Employment Law
If an employee brings a solitary Private Attorneys General Act claim, a court cannot send the employee to arbitrate his individual damage claim and retain jurisdiction to award the additional, statutorily prescribed amounts.

Zakaryan v. The Men's Warehouse, Inc. - filed March 28, 2019, Second District, Div. Two
Cite as 2019 S.O.S. 1499
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Family Law
A trial court does not need to find that a spouse made absolutely no contribution to the increase in value in a separate property business during the marriage in order to apply the Van Camp apportionment method. The proper consideration is whether the spouse's efforts during the marriage were the "chief contributing factor" causing an increase. A trial court can apply Van Camp when the efforts of others within a company cause the increase in value.

In re Marriage of Brooks - filed March 27, 2019, Sixth District
Cite as 2019 S.O.S. 1505
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Family Law
A restraining order issued under the Domestic Violence Prevention Act prohibiting a spouse from posting anything about his divorce case on Facebook constituted an overbroad, invalid restraint on his freedom of speech.

Molinaro v. Molinaro - filed Feb. 26, 2019, publication ordered March 28, 2019, Second District, Div. Three
Cite as 2019 S.O.S. 1513
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Family Law
A juvenile court abused its discretion in awarding permanent custody of a minor to his father where the mother was ready, willing and able to safely care for him, but the father had done nothing to rectify the dangers he posed as a parent or his relationship with the child, and the child's behavior and emotional health had deteriorated while in the care of his father.

In re C.W. - filed March 29, 2019, First District, Div. Two
Cite as 2019 S.O.S. 1517
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Insurance Law
A trial court had authority to resolve a dispute over the validity of an arbitration agreement where the agreement does not contain a delegation clause explicitly designating whether the trial court or an arbitrator should decide the threshold question of the validity of the arbitration agreement and a party specifically challenged the validity of the agreement. An arbitration agreement contained in a document that changed the dispute resolution terms of an insurance policy and was never submitted to the insurance commissioner for approval was an unenforceable collateral agreement.

Jackpot Harvesting, Inc. v. Applied Underwriters, Inc. - filed March 28, 2019, Sixth District
Cite as 2019 S.O.S. 1529
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Professional Responsibility
Code of Civil Procedure Sec. 340.6(a)'s one-year statute of limitations for an action against an attorney governs malicious prosecution claims against attorneys.

Connelly v. Bornstein - filed March 28, 2019, First District, Div. Five
Cite as 2019 S.O.S. 1536
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Trusts
A revocable inter vivos trust does not prevent creditors of the settlors from reaching trust property. A signature by the sole trustee and beneficiary of an inter vivos revocable trust is sufficient to convey good title to trust property. Where a complaint does not reveal on its face that it is barred by the statute of limitations, a plaintiff has no obligation to plead around the defense. If a verified complaint contains allegations fatal to a cause of action, a plaintiff generally cannot cure the defect by simply omitting those allegations in an amended pleading without explanation. Amendment in this manner is allowed where a plaintiff clearly shows that the earlier pleading is the result of mistake or Inadvertence. A plaintiff may show mistake or inadvertence, or demonstrate a factual basis for the revised allegation, for the first time on appeal.

JPMorgan Chase Bank, N.A. v. Ward - filed March 28, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 1541
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MEMBER BENEFIT SPOTLIGHT
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LACBA Celebrates Over 140 Years of Service to the Los Angeles Legal Community and Recognizes Past and Present Bar Leaders in Honor of Women’s History Month

Pardis Zomorodi   Pardis Zomorodi
Pardis Zomorodi, of Latham & Watkins LLP, serves as the Deputy Office Managing Partner for the Century City office. Her practice focuses primarily on the federal income taxation of corporations and partnerships, including real estate investment trusts, and media and entertainment companies.  

Ms. Zomorodi is regularly involved in financing and other transactions for the motion picture, television, and related entertainment industries. She also has an expertise in taxation of real estate investment trusts, and has represented a number of real estate investment trusts in connection with formation transactions, securities offerings, and ongoing operational matters.

 
 
 
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