The National Law Journal's L.A. Legal Pad

Judge adds $2.3M to San Juan Capistrano's woes

Orange County Superior Court Judge Gail Andler has awarded $2.3 million in litigation expenses in a development suit against San Juan Capistrano.

The city had initially wanted a $7 million judgment tossed out and a new trial granted, but Andler said the city did not meet its burden of proof for either motion.  She wrote, "Additionally, in its effort to persuade this court to grant the requested relief, the City has mischaracterized the rulings of the court and the evidence presented." With the litigation fees, the total judgment against the city now exceeds $9 million.

"Under the law we were entitled to reasonable fees," said Chuck Krolikowski, lead trial counsel for the Scalzo Family Trust. "The judge came in very close to what we asked for."

San Juan has appealed the judgment to the 4th District Court of Appeal in Santa Ana.

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Appeals court affirms $94M judgment against former Qualcomm director

The California Second Appellate District Court affirmed a judgment last Wednesday against former Qualcomm director and shareholder Neil Kadisha for mismanaging two trusts for a young widow's two children. The Court also added about $20 million in prejudgment interest to the judgment.

Retired Los Angeles Superior Court Judge Henry W. Shatford wrote in his initial decision that Kadisha was "no more than a common thief," and that he had misappropriated millions of dollars of trust funds, invested trust assets in a real estate venture in which he had a financial interest, sold trust assets in order to embezzle the funds, and failed to properly manage trust assets resulting in the loss of millions of dollars.

One of Kadisha's arguments was that many of those challenged transactions were in the trusts' best interests. Justice Walter Croskey, writing for the Court of Appeal, said a trustee cannot enter into a transaction solely for his personal benefit, even if it makes economic sense from the trust’s point of view.

The Encino-based law firm of Krane & Smith represented Dafna Uzyel and her children, Izzet and Joelle, and won a $94 million final judgment for compensatory and punitive damages.

Full story at Metropolitan News-Enterprise.

9th Circuit rejects student's sexual harassment policy challenge

Jonathan Lopez, a student at Los Angeles City College and self-described devout Christian, was giving a speech in class about marriage being solely defined as a union between a man and a woman and using two Bible verses as support when his professor, John Matteson, cut him off.  Matteson called the student a "fascist bastard" and refused to let him finish.  Matteson later wrote on Lopez's speech evaluation form, "ask God what your grade is" and "proselytizing is inappropriate in public school."

Lopez then filed suit against Matteson and other school officials, alleging that his First Amendment and equal protection rights had been violated.  He also said that because the school's sexual harassment policy is overly vague, he could be punished for his views on homosexuality. U.S. District Judge George H. King of the Central District of California agreed that Lopez had standing and enjoined the school from enforcing the policy.

The 9th Circuit, however, reversed that opinion, stating that Matteson's actions toward Lopez constituted a credible threat that the policy would be enforced against Lopez. Judge Sandra S. Ikuta wrote in her opinion, "Comparing Lopez’s past and proposed future speech to the plain language of the District’s sexual harassment policy, we do not see, nor does Lopez explain, how the policy applies to him, given that his statements and proposed topics do not, on their face, constitute 'verbal conduct of a sexual nature.' "

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9th Circuit rules in favor of railroad companies in pollution suit

The 9th Circuit ruled yesterday that he South Coast Air Quality Management District cannot limit pollution from idling trains because it would interfere with federal interstate commerce law.

The Interstate Commerce Commission Termination Act of 1995 says state and local laws cannot unreasonably burden interstate commerce. The air quality district's rules are preempted by the act, and its restrictions could burden interstate railroad activity, said the three-judge panel in its decision.

Air regulators imposed those restrictions in 2005 and 2006.  The California Air Resources Board said diesel emissions from trains, trucks and ships are to blame for 2,100 early deaths each year.

The judges did note that if the restrictions were incorporated into the state's environmental regulations and approved by the federal Environmental Protection Agency, they could gain the force of law.

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Records of baseball steroid use illegally obtained, says 9th Circuit

The full 11-judge panel of the U.S. 9th Circuit Court of Appeals ruled yesterday that federal agents illegally seized confidential drug-testing records for hundreds of professional athletes during their raid of a a Bay Area lab. The court barred prosecutors from using information from those records in its investigation of illegal steroid sales, upholding orders from three lower-court judges that all subpoenas resulting from those records be quashed.

The test results were connected to an anonymous testing program by professional baseball to determine how widespread the steroid problem had become in the sport. The court's decision ordered the return of those records to the Major League Baseball Players Association.

In the decision, Chief Judge Alex Kozinski included new guidance to law enforcement on how to execute search warrants involving computer databases containing information outside the reach of the court-authorized searches.

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Ninth Circuit ruling limits first sale doctrine

Timothy Vernor, a regular eBay seller, put four copies of the software Autodesk on eBay and was sent a DCMA takedown notice for each one.  Vernor counternoticed every time, and when Autodesk failed to respond the auctions were reinstated. After the fourth takedown arrived, eBay suspended Vernor's account.  Vernor sued Autodesk, saying he had legally obtained his copies and had a right to sell them.

U.S. District Court Judge Richard Jones in Seattle ruled in favor of Vernor, saying that Autodesk could not restrict his first sale rights. But on Friday, the Ninth Circuit threw out that ruling, saying that software makers could use shrink-wrap and click-wrap licenses to forbid the transfer or resale of their products.

Writing for the court, Judge Consuelo M. Callahan explained that "a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions."

Vernor's lawyer, Public Citizen's Greg Beck, plans to ask for an en banc reconsideration.

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9th Circuit tattoo decision needles Hermosa Beach

Tom Waits once wrote about a feeling that was "harder to get rid of than tattoos."  Thanks to a recent decision by the Ninth Circuit, tattoo parlors in Hermosa Beach may now be equally difficult to shake.

Johnny Anderson, a co-owner of a Yer Cheat'n Heart Tattoo and Body Piercing in Gardena, has won his four-year battle against the city's long-held ban on tattoo parlors.  A three-judge panel of the Ninth Circuit Court of Appeals agreed unanimously that such a ban was unconstitutional and an overreaction to health concerns that could be addressed more effectively through appropriate regulation.

The decision reverses a 2008 ruling by U.S District Court Judge Christina Snyder, who said at the time that Anderson's First Amendment rights were not being violated because a tattoo is an expression of the owner's speech, not the inker's. 

The city has suggested it may file an appeal with the U.S. Supreme Court.

Full story here.

Appeals court blocks 'torture flights' suit

The 9th U.S. Circuit Court of Appeals ruled 6-5 in favor of dismissing a lawsuit against Jeppesen Dataplan, a San Jose-based Boeing subsidiary accused of flying suspected terrorists to foreign countries for the purpose of being subjected to extreme interrogation tactics. It was alleged by the ACLU that the company was under contract with the U.S. government.

The Obama administration, like the George W. Bush administration before it, invoked the state secrets argument, claiming that confirming or denying Jeppesen's relationship with the CIA may result in the revelation of classified information. In writing for the majority, 9th Circuit Judge Raymond Fisher said, "Whether or not Jeppesen provided logistical support in connection with the extraordinary rendition and interrogation programs, there is precious little Jeppesen could say about its relevant conduct and knowledge without revealing information about how the United States government does or does not conduct covert operations."

Ben Wizner, a laywer with the ACLU, says they will appeal today's decision.

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Shaun Martin has some analysis here.

 

For not stopping trial so defendant could visit dying son, 9th Circuit overturns conviction

U.S. District Judge Dale S. Fischer refused to stop a tax fraud trial so the defendant could be at his son's deathbed and did not inform the jury why the defendant was absent for the final day of trial.  For these reasons, the 9th Circuit Court of Appeals ruled that the conviction in that case should be overturned.

Garth Kloehn was charged in 2005 for failing to report $1.2 million in income. He left the courtroom to fly to Las Vegas where his son, Kevin, was dying of cancer. Being the sole defense witness, he left no one to rebut the prosecution's final testimony. The jury found Garth Kloehn guilty and the judge sentenced him to 46 months in prison, plus payment of the owed taxes and penalties.

In a 2-1 ruling, judges of the 9th Circuit said that although there were "no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process," Fischer's action was "arbitrary and unreasonable."

Full story here.

Appeals court rules mandatory 30-day warning program for each new red-light camera installation

The Orange Superior Court Appellate Division ruled in a July 23 decision that the statutory requirement of a 30-day warning program before a locality can issue tickets to motorists caught on automated cameras going through red lights applies each time a camera is installed at a new intersection.

The panel sided with Danny Byongun Park, a motorist ticketed for running a light at a Santa Ana intersection where no red light camera warning program had been instituted, and rejected the city's argument that the statutory requirement was satisfied when the city installed its first red light cameras six years earlier.

This is the second published decision aimed at Santa Ana’s red light camera program, the first being People v. Khaled, where the Appellate Division ruled that the use of photographs and a police officer's declaration to prove a motorist ran a red light was in violation of the Evidence Code.

Full story at Metropolitan News-Enterprise.