CASE OF THE DAY 2009-08
Case of The Day

October 2009

■ Duty of Insurance Carrier to Defend.  Policy coverage in “advertising injury” claim. The California Supreme Court has stated, “If any facts stated or fairly inferable in the complaint, or otherwise known or discovered by the insurer, suggest a claim potentially covered by the policy, the insurer’s duty to defend arises and is not extinguished until the insurer negates all facts suggesting potential coverage. On the other hand, if, as a matter of law, neither the complaint nor the known extrinsic facts indicate any basis for potential coverage, the duty to defend does not arise in the first instance.”  (Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 654-655.) If a policy provision is ambiguous, we resolve the ambiguity in the insured’s favor, consistent with the insured’s reasonable expectations.  (Davis v. Farmers Ins. Group (2005) 134 Cal.App.4th 100, 104.)  Nevertheless, “it is settled that a potential for coverage cannot be based on an unresolved legal dispute concerning policy interpretation which is ultimately resolved in favor of the insurer.”  (Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Group (1996) 50 Cal.App.4th 548, 556 (Lebas).)  Kim Seng Co. v. Great American Ins. -B208699-11/13/09 CA2/5

■ Gag order that prevented defense counsel from discussing the contents of two declarations by witnesses with Defendant requires reversal of attempted murder conviction.  Court's restrictions before trial and during examination of  witness violated Defendant's Sixth Amendment right to consult with his attorney. court order barring defense counsel from discussing the contents of witnesses' written declaration with Defendant Townley,  Appellate court concludes that this order unjustifiably infringed on Defendant's constitutional right to the effective assistance of counsel. The defect is structural. Defendant is entitled to reversal without making a showing of prejudice resulting from this error. (Excellent analysis defendant's Sixth Amendment right to counsel) People v. Hernandez -H031992A-11/9/09 CA6 

■ Childhood sexual molestation victims time barred irrespective of discovery. Childhood sexual molestation victims whose claims were time barred before January 1, 2003, had to sue during the ensuing one-year revival period regardless of whether they had yet discovered the link between the earlier abuse and their adult onset of psychological injuries from that abuse. Statutes are presumed to operate prospectively from the date they take effect unless (1) they contain express language of retroactivity, or (2) other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.  Statutes are presumed to operate prospectively from the date they take effect unless (1) they contain express language of retroactivity, or (2) other sources provide a clear and unavoidable implication that the Legislature intended retroactive application. Common Law Equitable Discovery Does Not Apply
Doe v. R.C. Bishop of San Diego -B209557-11/6/09 CA2/8

■ Appeal not timely filed dismissed
Appellate court has no jurisdiction to entertain appeal because the notice of appeal was not timely filed. There are no reported cases, statutes or rules which allow the trial court to grant relief from an untimely notice of appeal. Unless the notice [of appeal] is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal."   People v. Lyons -B212253-11/5/09 CA2/6

■ Knight v Jewett 3Cal.4th 296 11Cal.Rptr.2d 2, 1992-08-24
(Excellent Analysis-primary Assumption of Risk)

■ Principles of statutory  construction. The determination of the meaning of a statute is a question of law that is subject to de novo review. In re Z.C. -A123994-10/2/09 CA1/2

■ Invasion of Privacy: Elements required to establish a claim for invasion of
privacy under the California Constitution
Pineda v. Williams-Sonoma -D054355-10/8/09 CA4/1

■ Sixth Amendment. Forfeiture of right by wrongdoing doctrine exception to the confrontation clause. A defendant may forfeit the right to confront a witness when he has killed that witness or otherwise made the witness unavailable at trial.  People v. Banos -B194272A-10/19/09 CA2/8

■ The trial court erred by granting plaintiffs’ petition to confirm the arbitration award without determining whether defendants consented to or ratified the arbitration agreement. 
(Even if we assume the court made an implied finding to that effect, the finding was unsupported by substantial evidence.)  Based on the reporter’s transcript of the hearing, it does not appear the court ever considered the issue.  Because the court failed to consider and rule on the question of defendants’ consent, we remand the matter to the court for a hearing on the issue.  Toal v. Tardif -G040112-10/30/09 CA4/3

■ Attorney-Medical Lien Analysis:
Gilman v. Dalby -C050294-8/10/09 CA3

■ Principles of Contract Interpretation
DVD Copy v. Kaleidescape -H031631-8/12/09 CA6 

■ Strauss v. Horton-S168047-5/26/09 SC (This is the
same sex marriage case Excellent analysis-state and
federal equal protection law -a must read.)

■ Fraudulent Conveyance:
Jhaveri v. Teitelbaum -B203923-8/12/09 CA2/8  

■ Conflict of Interest-Attorney Work Product
Meza v. H. Muehlstein & Co.-B201427-
8/18/09 CA2/3

■ Noncompetition agreement: Retirement
Group v. Galante -D054207-7/30/09 CA4/1

■ Evidence-Hearsay Public Employee Exception:
Miyamoto v. Dept. Motor Vehicles -
H032987-8/20/09 CA6

■ Unauthorized sentence because of an error in
restitution must be vacated: People v. Turrin -
C059722-8/20/09 CA3

Judgment void, in whole or in part, as being beyond
the jurisdiction of the court, and subject to collateral
attack, 311 South Spring v. Dept. of General Services
 -B212165-10/28/09 CA2/1

April 24 2009
Cohen v. Brown  -B206223A- 4/24/09 CA2/3
Cohen v. Brown  -B206223A- 4/24/09 CA2/3-pdf 
(Threat is extortion-not protected speech)

Public Policy Analysis:
Sanchez v. Co. of San Bernardino 8/7/09 CA4/2

August  2009

Attorney Fees
Civil Hate Crime Arbitration Attorney Fees
D.C. v. Harvard Westlake School -B204634-8/14/09 CA2/1

Criminal Law

■ Natural and Probable Consequences Analysis:
People v. Hart -C057652-8/11/09 CA3

■ Unauthorized sentence because of an error in restitution
must be vacated:
People v. Turrin-C059722-8/20/09 CA3

■ Analysis writs of habeas corpus,
coram nobis and audita querela:
People v. Vasilyan .-B205679-5/28/09 CA2/8

■ Sentencing-Felony- Misdemeanor -Wobbler:
People v. Gutierrez .-F055925- 5/28/09 CA5 

■ Penal Code § 654-Multiple Punishment
People v. Rodriguez -S159497-8/20/09 SC

■ Case of The Day