Archive for January, 2011


ALEXANDRIA, Va., Dec. 29 — The city of Alexandria issued the following press release:

Is it just one more reason to practice moderation?  The medical profession has long puzzled over what causes sudden infant death syndrome, and while the exact cause of what is also known as “crib death” remains a mystery, a new study finds that the number of SIDS cases reported each year spikes on dates following notable celebrations involving drugs and alcohol.

Researchers at the University of California, San Diego, found that reported cases of SIDS in the U.S. went up by 33 percent on New Year’s Day. The reason? Parents of young infants who drink too much alcohol often forget to put their children to sleep on their backs, a position that correlates with lower rates of SIDS.

Why are the study’s authors so convinced that excessive partying results in higher rates of SIDS? Because they say that New Year’s Day isn’t the only statistically significant calendar day:

The study also found a rise in SIDS just after April 20 (or 4/20), a counterculture celebration of cannabis, and after July 4, which is also known as an inebriated time, though the rise on neither of these dates is as dramatic as on New Year’s.

While the study does not claim to conclusively link partying behavior to SIDS, it notes that “babies of mothers who drink are twice as likely to die of SIDS.”

“We know that when people are under the influence of alcohol their judgments are impaired, and they are not as good at performing tasks. This would include caretaking,” David Phillips, one of the study’s main authors, said in a press release. For more information about SIDS, visit For more information about the study, visit the UC San Diego News Center. For any query with respect to this article or any other content requirement, please contact Editor at


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Juror Misconduct

Juror’s statement that she had ‘made up her mind’ early in trial is statement of bias justifying grant of new trial. Mitchell Grobeson v. City of Los Angeles, (No. B207551 California Courts of Appeal, Second Appellate District, Division Eight, December 2, 2010).

Under Evidence Code Section 1150, upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.  In this case, one juror stated to another during the second week of trial that she had made up her own opinion in the second week of trial, and stated that she is not going to listen to the rest of the argument.  The court found that the statement that she had “made up her mind during trial” was a statement of bias, showing she had prejudged the case, which improperly influenced the verdict.  As such, the trial court properly found juror misconduct in granting a new trial.  The appeals court affirmed the trial courts’ ruling.

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Court errs in awarding lost profits based on insufficient evidence and speculative assumptions that project would have been built according to plans. Greenwich S.F., LLC v. Donna Wong, (No. A123670 & A124882 California Courts of Appeal, First Appellate District, Division Two, December 2, 2010).

Loss profits may be awarded as consequential damages and must be plead with particularity and proven to be certain, both as to their occurrence and their extent.  In this case, lost profits were not proven with reasonable certainty.  The evidence was insufficient to prove that the plaintiff had an established business of successfully developing or redeveloping projects.  The Plaintiff expert’s claims were based on the assumption that the plaintiff would have constructed a project according to plans.  However, these assumptions were inherently uncertain and highly speculative.  Therefore, the court erred in awarding lost profits to the plaintiffs.

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Denial of motion to compel arbitration based on presence of third-party defendants is improper where defendants were related to facility named in agreement. Louise Laswell v. AG Seal Beach, LLC et al., (No. B221481 California Courts of Appeal, Second Appellate District, Division One, November 9, 2010).

Plaintiff sued a number of affiliated entities which operated a health care center.  The defendants moved to compel arbitration asserting that a valid arbitration agreement stated that all disputes arising out of the provisions of services by the facility would be arbitrated.  The plaintiff argued that arbitration was inappropriate because of the presence of third party defendants which were not subject to the arbitration agreement.  The trial court denied the petition to compel arbitration on the ground that there were parties who did not participate in the arbitration because they were not part of the agreement. 

It so happens that the other defendants were related entities, that is, its owners and operators of the same facility.  The appeals court reversed and remanded the matter to the trial court for further hearing.  The appeals courts stated that California has a strong public policy in favor of contractual arbitration requiring enforcement of valid arbitration agreements.  However, courts have digression to deny arbitration if there are third parties not subject to arbitration on claims arising out of the same or related transactions, and a possibility of conflicting rulings on common issues of law or fact.  The term “third party” means a party that is not bound by the arbitration agreement.  Here, although the arbitration agreement defines “facility” as a particular entity, all of the defendants were related to the facility and thus were bound by the agreement.

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Psychiatric Evaluation

Court errs in allowing presence of plaintiff’s counsel in adjoining room to monitor psychiatric examination where such measures were not needed. Toyota Motor Sales, U.S.A., et al. v. The Superior Court of Los Angeles County, (No. B226902 California Courts of Appeal, Second Appellate District, Division Four, November 9, 2010).

Defendant moved the court to compel the plaintiff to submit to an independent psychiatric examination.  In opposition to the motion, plaintiff’s counsel demanded that he be present at the examination to listen to and monitor the examination.  Defendant objected to the demand, arguing that defendant’s experts believed that counsel’s presence would interfere with the exam’s validity.  The trial court agreed to make an order prohibiting communication about questioning, but permitted plaintiff’s attorneys’ presence in an adjoining room and his contemporaneous monitoring of the monitoring of the examination.  Defendant filed a motion to modify the order claiming that the plaintiff’s attorney presence should not be permitted.  The trial court denied the motion and the defendant’s petitioned to the appeals court for review.

The appeals court granted the petition.  A plaintiff cannot insist on attorney’s presence at the psychiatric examination.  Thus, the presence of an attorney is not required during an examination.  Trial courts do retain the power to allow counsel’s presence “or to take other prophylactic measures when needed”.  There is no showing of a need for plaintiff’s attorney to be present or monitor the examination.  Also, defendant produced evidence that such monitoring could compromise the exam’s integrity.

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Elder Abuse Claim

Plaintiffs lack standing to bring elder abuse claim on behalf of decedent where they are not successors in interest or interested persons in proceedings. Joshua Lickter et al., v. Maggie Lickter as Trustee, et al., (No. C061782 California Courts of Appeal, Third Appellate District, October 27, 2010).

The primary issue in this case was who was entitled to commence and/or maintain an elder abuse action after the elder who was allegedly abused had died.  Here, the plaintiffs sued their father, half sisters and half sisters’ mother for elder abuse and other related causes of action that could have belonged to their grandmother.  Plaintiffs claim that they had standing to commence and maintain the action under provisions of the (Welfare and Institutions Code).  Defendants moved for summary judgment based on lack of standing.  The trial court agreed with the defendants that the plaintiffs would have standing only if certain provisions were made under the Probate Code.  The appeals court found that the right to commence an elder abuse action generally passes to the personal representative of the decedent.  However, if the personal representative refuses or is alleged to have committed the abuse, standing to commence the action is granted to an intestate heir, the decedent’s successor-in-interest, or an interested person.  Here, the plaintiffs were former beneficiaries of a trust, having already been paid the amounts they were owed under the trust.  Therefore, they had no interest to be affected by the elder abuse proceedings.  Additionally, there was no evidence that all of the defendants had engaged in elder abuse.  As such, the court found the trial court properly returned plaintiffs’ lack of standing.

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Vexatious Litigant

Vexatious litigant subject to prefiling order precluding propria persona filings is not excused from dismissal of complaint by subsequent retention of counsel. Carmen Kovacevic v. Avalon at Eagles’ Crossing Homeowners Association et al., (No. D055852 California Courts of Appeal, Third Appellate District, Division One, October 26, 2010).

Plaintiff, in pro per, filed a complaint containing numerous causes of action against the defendant.  The defendants filed a notice pursuant to California Code of Civil Procedure, Section 391.7 in which they requested that the court dismiss the case on the ground that the plaintiff was a vexatious litigant who, in filing this action, violated a 2002 pre-filing order that precluded her from filing any new litigation in pro per without leave of court.  The trial court entered a judgment dismissing the action without prejudice. 

On appeal, plaintiff claimed that the trial court erred in dismissing the case.  Plaintiff claims that she “cured” the improper in pro per filing of the litigation through her subsequent retention of counsel to represent her in the action.  The appeals court affirmed the trial court’s ruling.  The appeals court determined that the statute does not provide any exclusion when an in pro per plaintiff retains counsel.

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Attorneys Fees

Prevailing party cannot seek attorney fees under Civil Code Section 1717 unless claim arose out of contract or party was intended beneficiary of contract. Hyduke’s Valley Motors v. Lobel Financial Corporation, et al., (No. G042816 California Courts of Appeal, Fourth Appellate District, Division Three, October 21, 2010). 

Each party to litigation must bear its own attorneys fees unless otherwise provided by statute or contract.  California Civil Code Section 1717 permits recovery of attorneys’ fees only of the party prevails an action on the contract.  In this case, plaintiff sued finance companies for the recovery of the purchase price, and not an action arising out of a conditional sales contract.  Hence, the trial court denied the plaintiff’s motion which was appealed.  Plaintiff also claimed that it was an intended beneficiary under the agreement; however, the appeals court determined that the plaintiff was not a beneficiary of this conditional sales contract and thus not entitled to attorneys fees.

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