Civil Procedure
Scope of questions asked by a judgment creditor in a third party judgment debtor examination may include the location of assets no longer in the possession of the third party.
Yolanda's, Inc. v. Kahl & Goveia Commercial Real Estate - filed May 3, 2017, Second District, Div. Six
Cite as 2017 S.O.S. 2311
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State law holding that a principal is not bound by an arbitration agreement entered into by an agent, absent an express delegation of authority to enter into such an agreement, violates the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment.
Kindred Nursing Centers, L.P. v. Clark - filed May 15, 2017
Cite as 2017 S.O.S. 16-32_o7jp
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Court of Appeal has inherent authority to protect specific persons from repeated frivolous litigation by ordering that a specified individual--who was previously declared a vexatious litigant, be barred from bringing new proceedings--including appeals, against the protected persons, even when the litigant is represented by counsel, absent prefiling approval from the presiding judge or justice of the court.
Kinney v. Clark - filed May 17, 2017, Second District, Div. One
Cite as 2017 S.O.S. 2472
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Trial court did not abuse its discretion by vacating default judgment that should not have been entered because plaintiff brought the action on behalf of a trust, but was not the trustee, and thus lacked standing on the face of the complaint. Trial court did not abuse its discretion by vacating default judgment under Code of Civil Procedure Sec. 473, where defendant had died. Plaintiff had brought a creditor's claim against defendant's trust based on the judgment, and trustee had no prior notice of the default or the judgment.
Grappo v. McMills - filed May 23, 2017, First District, Div. Two
Cite as 2017 S.O.S. 2535
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Family Law
A state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse's portion of the veteran's retirement pay caused by the veteran's waiver of retirement pay to receive service-related disability benefits.
Howell v. Howell - filed May 15, 2017
Cite as 2017 S.O.S. 15-1031_hejm
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Where marital settlement agreement and judgment granted wife a specified dollar amount as her interest in husband's retirement plan, but those funds were not segregated and remained in the plan for several years, family court had jurisdiction to grant wife a "qualified domestic relations order" assigning her gains and losses. The order was not a modification of the original judgment. Family court erred by dating the gains and losses back to the date of separation, rather than the date of the dissolution judgment.
In re Marriage of Janes - filed May 23, 2017, Fourth District, Div. Two
Cite as 2017 S.O.S. 2565
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Healthcare Law
Statute abrogating privilege for communications between physician and patient in the context of Medical Board investigations applies to all physicians, including psychiatrists. A psychiatric patient has a qualified constitutional right to privacy. In the context of a Medical Board investigation, this requires the state to demonstrate a subpoena for the patient's records is supported by a compelling interest and that the information demanded is "relevant and material" to the particular investigation being conducted.
Cross v. Superior Court (Kidane) - filed May 1, 2017, Second District, Div. Five
Cite as 2017 S.O.S. 2278
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Real Property
Defendant mortgage lender--by notifying plaintiff that he had 15 days to appeal denial of his request for loan modification--materially violated Civil Code Sec. 2923.6(d), which allows a borrower 30 days to appeal. Plaintiff pled a cause of action for injunctive relief under the statute notwithstanding his failure to appeal within 30 days.
Berman v. HSBC Bank USA, N.A. - filed April 11, 2017, publication ordered May 3, 2017, Third District
Cite as 2017 S.O.S. 2329
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Trial court did not abuse its discretion by awarding plaintiff an equitable easement--based on a balancing of hardships--over a small portion of defendant's property based on evidence that defendant did not use that portion and that the easement would allow plaintiff to access a third-party property over which he would have an easement by necessity.
Hinrichs v. Melton - filed May 3, 2017, Second District, Div. Six
Cite as 2017 S.O.S. 2334
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Quiet title action failed where judicially noticeable facts showed that plaintiff's interest in the subject property depended on a judgment that had previously been set aside as void.
Thompson v. Ioane - filed May 25, 2017, Sixth District
Cite as 2017 S.O.S. 2646
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Trusts and Estates
Regardless of the form of a bank account, when clear and convincing evidence shows funds were transferred to the account owner to hold in an irrevocable trust for a third party beneficiary and the trustee repudiates the trust, a constructive trust may be imposed on the funds for the beneficiary's estate to prevent unjust enrichment.
Higgins v. Higgins - filed May 9, 2017, Second District, Div. Five
Cite as 2017 S.O.S. 2403
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