eBriefs Header
  Tuesday, October 23, 2018  
LACBA.ORG  |  EBRIEFS ARCHIVE  |  CALENDAR  |  MEMBERSHIP BENEFITS
   
 
 
     
 
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
Criminal Law and Procedure
The seizure of evidence in California pursuant to a Network Investigative Technique warrant issued by an out-of-state magistrate violated Federal Rule of Criminal Procedure 41(b) since the warrant authorized a search outside of the issuing magistrate judge's territorial authority, but the good faith exception to the exclusionary rule can allow for admission of the evidence. The NIT mechanism is not a "tracking device" for which out-of-district warrants are authorized by Rule 41(b). A warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment, and a Rule 41 violation is a fundamental, constitutional error.

United States v. Henderson - filed Oct. 23, 2018
Cite as 2018 S.O.S. 17-10230
Full text click here
>
Criminal Law and Procedure
A habeas corpus petitioner's double jeopardy challenge to the charges for which he was convicted is not rendered moot if the conviction is vacated. A court has the authority to convert a 28 U.S.C. Sec. 2254 petition into a Sec. 2241 petition when a petitioner's convictions are vacated during the pendency of the petition and the petitioner has become a pretrial detainee.

Dominguez v. Kernan - filed Oct. 23, 2018
Cite as 2018 S.O.S. 18-55209
Full text click here
>
Torts
Aiding and abetting comes within the Alien Tort Statute's focus on torts committed in violation of the law of nations.

Doe v. Nestle, S.A. - filed Oct. 23, 2018
Cite as 2018 S.O.S. 17-55435
Full text click here
>
CALIFORNIA COURT OF APPEAL
Criminal Law and Procedure
An officer with adequate training and experience in performing the nystagmus test can testify about the significance of a defendant's performance on the test without additional expert testimony explaining the test.

People v. Randolph - filed Oct. 23, 2018, Fifth District
Cite as 2018 S.O.S. 5133
Full text click here
>
Employment Law
The Dynamex "suffer or permit to work" standard for determining whether a worker is properly considered an employee or an independent contractor applies to wage order claims, and the Borello standard applies to non-wage-order claims.

Garcia v. Border Transportation Group, LLC - filed Oct. 22, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 5140
Full text click here
>
Family Law
The relative placement preference under Welfare & Institutions Code Sec. 361.3 does not apply to relatives seeking placement of a child in continued foster care pursuant to Sec. 366.26(b)(7). A placement request by a relative after a permanency hearing is essentially a request to modify the child's permanency plan and must be heard under the statutory framework of Sec. 366.26 and Sec. 366.3. The Legislature favors a permanency plan of permanent placement with a fit and willing relative only if a child is in continued foster care and the preferred plans of adoption or guardianship are not available for the child. When a relative of a dependent child files a Sec. 388 petition requesting permanent placement of a child in continued foster care, the juvenile court should determine whether the petition makes a prima facie showing that the relative is fit and willing to care for the child and if so, set a post-permanency review hearing under Sec. 366.3. The procedures specified in Sec. 366.26 are the exclusive procedures for selecting a permanency plan for a dependent child.

In re Maria Q. - filed Oct. 23, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 5147
Full text click here
>
 
 
 
MEMBER BENEFIT SPOTLIGHT
AHERN Insurance Brokerage, LACBA's preferred professional liability insurance broker since 2008, offers exceptional counsel regarding the Professional Liability insurance needs of your firm. As a full-service brokerage, AHERN offers a variety of comprehensive insurance products including a Workers' Compensation program with The Hartford (LACBA member discounts apply) and Employment Practices Liability insurance (wrongful termination, discrimination, and sexual harassment coverage) with specific law firm enhancements.

read more
>
LACBA members receive discounts on Metropolitan News Company publications and services. For more information, contact Vahn Babigian at (213) 346-0033 or go to http://www.metnews.com/info.html

LACBA Counsel for Justice and the Domestic Violence Legal Services Project would like to thank Holland & Knight for supporting #LACBA_DVP #31DaysofAwareness campaign to raise funds to support the DVP’s ongoing efforts to help #domesticviolence victims obtain Temporary Restraining Orders and other legal remedies to protect them from their abusers. To learn more or donate to DVP, CLICK HERE.

 
 
 
The full text of case rulings are in PDF files and require Adobe’s free Acrobat Reader to view. To download a copy go to: www.adobe.com//products/acrobat/readstep.html
Problems or comments?
Email us at ebriefs@lacba.org
© 2018 Los Angeles County Bar Association. The information contained in this document is intended solely for use by the person identified above. Any transmission to or copying for the benefit of another person is prohibited. Metropolitan News-Enterprise, SOS and MNC are registered trademarks of the Metropolitan News Company. Summaries are copyrighted by Metropolitan News Company © 2018, all rights reserved.
   
 
 
 


www.lacba.org

 


www.metnews.com