Saturday, November 6, 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.

Development Specialists Inc. v. R.E. Loans involves the somewhat ironic situation where R.E. Loans hired Development Specialists to collect on some bad debts.  The collection agency claims R.E. Loans never paid its bills and is now suing it for breach of contract.  The present action is the plaintiff's motion for a right to attach order and an order of attachment.  This would prevent R.E. Loans from using a portion of its assets until the action ended.  R.E. Loans admits that it had a contract with Development Specialists, but denies it was for as much as is claims.  Further, it states that the contract contained a security agreement, so the plaintiff would already have a security interest in its assets.  Development Specialists disputes the meaning of the security agreement stating that it does not actually secure any property.  Magistrate Maria-Elena James agreed with the plaintiffs,
The Court agrees with Plaintiff. Beyond the declaration of Ng and the mention of securities within the Security Agreement drafted by R.E. Loans, no further proof is provided to support its argument. Without sufficient documentation as to the value of the notes held by Plaintiff, the Court is unable to conclude that security exists to the extent that it would deem the instant claim one upon which attachment cannot be issued.
She granted the motion for a right to attach order and issued an order of attachment.

In Res-Care v. Roto-Rooter Service Corp., the plaintiff owned an adult care facility where hot water badly scalded, Ms. Rodriguez, a fully-dependent resident.  Res-Care settled with the resident's conservator and now seeks to indemnify Roto-Rooter which has moved for summary judgment stating that Res-Care's employee intentionally put Ms. Rodriguez into the scalding water which caused her injuries preventing it from incurring liability.  Res-Care disputes this and notes that while the employee plead nolo contendre to elder abuse that statute can involve a reckless act and not necessarily an intentional one.  Further the settlement agreement did not require an admission of an intentional act.  Magistrate Elizabeth D. Laporte agreed and found that this factual dispute precluded summary judgment.  She denied the motion for summary judgment.

Schott v. Ivy Asset Management involves Mr. Schoot ant his investment trust advised by Ivy Asset Management to invest in Bernie Madoff's now defunct Beacon Fund, LLC.  Mr. Schott claims that Ivy falsly representations to him that it would monitor Beacon which it did not do, and those misrepresentations lead to his decision to invest in Beacon.  Judge Lucy H. Koh explains that Mr. Madoff has defrauded a number of people and that the litigation is being presently contested in the Southern District of New York.  Ivy has moved to transfer venue to New York and combine the cases.  Judge Koh agreed:
Even though the Court recognizes the inconvenience that transfer will impose on Plaintiff and views skeptically Defendants' claim that coming to California is inconvenient now that the opportunity to solicit investments from Plaintiff has passed, the Court finds that the possibility of inconsistent rulings and the inefficiency of duplicative litigation outweigh these concerns.
She granted the motion to transfer venue.

York v. Hernandez is a pro se prisoner lawsuit under 42 U.S.C. § 1983.  In the present motion Mr. York asks the court to reconsider its decision to dismiss Officer Grannis from the suit.  He claims that Officer Grannis repeatedly denied appeals of his administrative grievances for being untimely in violation of due process of law.  Judge Lucy H. Koh previously dismissed the claim because there is no constitutional right to an administrative grievance process.  However, there is a right to object to the conditions of confinement.  Mr. York cites Woods v. Carey (E.D. Cal. 2006) for the proposition that repeatedly denying requests can be a due process issue.  Judge Koh noted that the case was not controlling but if it were Woods was appealing his denial of a request for dental work which created an issue of treatment which was exacerbated by the process by which he was denied the assistance.  She denied the motion for reconsideration.

Zhang v. Walgreen is an employment discrimination action where Ms. Zhang argues she took maternity leave and was not later able to be rehired by Walgreen.  She is moving to amend her complaint to add a count of intentional infliction of emotional distress (IIED) caused by the transaction.  Judge Jeffery S. White explained that an employment decision by itself cannot legally be the basis for an IIED claim.  He denied the motion to amend.

The fisher photo courtesy of Josh More
Center for Biological Diversity v. Salazar is an action under the Endangered Species Act (ESA) to have the U.S. Fish and Wildlife Service classify the fisher (Martes pennati, shown to the right) as an endangered species. The Service initially denied the request stating it did not have time to deal with it, then then Ninth Circuit ruled in Biodiversity Legal Foundation v. Badgley (9th Cir. 2002) that the Service had to make its "90-day" decision within a year.  For several years thereafter the Service published a Candidate Notice of Review (CNOR) stating that a finding of endangerment of the fisher was "warranted but precluded."  The Center states that the Service's decision was arbitrary under the standards of the Administrative Procedures Act (APA).  In the present motion the Secretary seeks to dismiss the case because he argues that each year's finding replaces the previous year's finding and that the previous findings were moot.  Magistrate Joseph C. Spero did not want to find mootness, though the case law support was thin.
It is far from obvious that a new CNOR automatically moots a challenge to a previous one. See Friends of the Wild Swan v. U.S. Fish & Wildlife Service, (D. Or. 1996) (reviewing allegedly “superseded” warranted but precluded finding).
[T]he Ninth Circuit has held that "warranted but precluded" findings violated the ESA even though more recent findings had been issued. Center for Biological Diversity v. Kempthorne, (9th Cir. 2006). Although mootness was not directly addressed in this case, the court could have raised the issue sua sponte if it thought the more recent findings mooted the claims.
He denied the motion to dismiss.

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