Monday, October 11, 2010

Northern California Daily Digest

Here are some of the other recently decided cases in the U.S. District Court for the Northern District of California.

Brambila v. BAC Home Loans involves a homeowner who questioned the validity of his foreclosure.  For some reason unknown reason, like the plaintiff in Chung v. NBGI this blog profiled yesterday, Mr. Brambila did not respond to Magistrate Maria-Elena James' request to proceed in the case or the plaintiff's motion to dismiss.  Judge James recommended the case be dismissed for lack of prosecution.

In 625 3rd Street Associates v. Board of National Credit Union Association, the plaintiff is suing the defendant for breach of a purchase and lease back agreement.  The defendants argue that the jury should have been given an instruction on the D'Oench, Duhme doctrine. Based on D'Oench, Duhme & Co. v. FDIC (U.S. 1942), the liquidating agent of an insured credit union is not bound by any agreements which tend to diminish an asset of the NCUA Board as liquidator unless the agreement is in writing. However, when the claim is unrelated to the banking business then it is a "free standing tort claim" and may be pursued.  This case is on the line because this is a different transaction  than a traditional borrower/lender mortgage.  Judge William Alsup stated that the jury should not be tasked with making legal determinations and that the defendants can raise the defense after the verdict as a motion for judgment as a matter of law.

Kennedy v. Astrue is a social security disability insurance appeal.  Ms. Kennedy believes she is disabled and argues that the ALJ improperly discounted the findings of her treating physician, Dr. Wren.  However, Dr. Wren suffers from the Katy Perry problem. As this blog has explained before:
In her song, Hot 'n Cold Ms. Perry states, "You change your mind like a girl changes overthink [and] always speak cryptically [therefore] I should know that you're no good for me." Similarly, witnesses who later change their mind are unreliable.
Magistrate Edward M. Chen explained:
For example, Dr. Wren noted in one record that he had referred Ms. Kennedy for diagnostic studies,(medical record, dated 4/21/2005, from Dr. Wren) (noting request for authorization for EMG with nerve conduction study of lower back and left leg and authorization for MRI scan of cervical spine and thoracic spine), but those studies largely had normal results.(medical record, dated 5/26/2005, from Dr. Wren) (noting that EMG with nerve conduction studies suggested sciatic nerve or S-1 nerve root irritation but no obvious S1 radiculopathy and that MRIs, as well as x-ray, revealed no significant abnormalities).
Dr. Wren's conclusion of disability was inconsistent with his findings and he failed to explain the discrepancy.  Judge Chen granted summary judgment for the commissioner.

Ferrington v. McAfee involves two customers suing the anti-virus protection provider for fraud.  According to the complaint, after downloading the software, a pop-up appeared inviting customers to "try it now".  The customers claim they thought "it" was the software they just purchased, but it was actually a third party vendor selling them something they purchased (thinking it was McAfee) that they later did not want.  Judge Lucy Koh ruled that these allegations were sufficient to satisfy the fraudulent and unfair prongs of California's Unfair Competition Law (UCL) but not the unlawful prong since trademark infringement and the Consumer Legal Remedies Act (CLRA) were not adequately alleged.  This decision allows the case to proceed into discovery.

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