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News for, and by, our local legal community, curated and created by the Santa Clara County Bar. The opinions expressed in this blog are the authors' own and do not necessarily represent or reflect the views of the Santa Clara County Bar Association, its members, its employees, or its governing board.

 

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State attorney arrested in SLO courtroom gets lesser charge

Posted By Administration, Thursday, April 14, 2016

The California Deputy Attorney General accused of resisting a police officer after a rough take-down by bailiffs in a San Luis Obispo courtroom in October pleaded no contest last Thursday to a lesser charge of disturbing the peace.

Jennie Mariah Kelly, 49, of Thousand Oaks, will pay a $1,000 fine and complete court-ordered anger management classes.

In exchange for the plea, prosecutors dismissed the original misdemeanor charge.

Read the whole story at The Tribune

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Ninth Circuit Seals Class Action Loophole

Posted By Administration, Thursday, April 14, 2016

Earlier this year the U.S. Supreme Court handed a rare win to the plaintiffs bar, ruling that defendants can't kill a class action simply by offering to pay named plaintiffs in full.

But there was a possible loophole in Campbell-Ewald v. Gomez, and it didn't take long for a defendant to try and walk through.

On Tuesday, the U.S. Court of Appeals for the Ninth Circuit deflected Allstate Insurance Co.'s attempt to short-circuit a class action by going a step beyond a settlement offer and actually depositing $20,000 in an escrow fund for the lead plaintiff.


Read the whole story at The Recorder

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FBI paid professional hackers one-time fee to crack San Bernardino iPhone

Posted By Administration, Thursday, April 14, 2016

The FBI cracked a San Bernardino terrorist’s phone with the help of professional hackers who discovered and brought to the bureau at least one previously unknown software flaw, according to people familiar with the matter.

The new information was then used to create a piece of hardware that helped the FBI to crack the iPhone’s four-digit personal identification number without triggering a security feature that would have erased all the data, the individuals said.

Read the whole story at The Washington Post

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Sacramento prosecutors help force Goldman Sachs to pay $5 billion

Posted By Administration, Tuesday, April 12, 2016

The numbers alone are staggering: $13 billion paid out by JPMorgan Chase to atone for its role in the economic meltdown of 2008, and more than $5 billion to be doled out by Goldman Sachs.

Hundreds of millions of dollars from those banking giants will flow back to the pension funds of California’s state workers and teachers, with millions more directed to help distressed homeowners in Sacramento and 24 other Central Valley counties ravaged by the housing collapse.

Read the whole story at SacBee

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Traffic Amnesty Program Helps Some, Leaves Others Behind

Posted By Administration, Tuesday, April 12, 2016

study released today finds that black and Latino drivers in California have their licenses suspended at about five times the rate of their white counterparts. The Lawyers’ Committee for Civil Rights compiled DMV and census data, which show how license suspensions keep minorities and low-income people stuck in poverty. The report comes at a time when California leaders are grappling with how to reduce racial and socioeconomic inequities in the traffic court system.

“We have a system of fines and fees that have morphed from a system of accountability to a system that raises revenue for essential government services,” California Supreme Court Chief Justice Tani Cantil-Sakauye said last month in her annual State of the Judiciary Address. “But we have made progress with the three branches of government. Last year you passed a traffic amnesty bill, and we are now restoring licenses to thousands of Californians.”

Read the whole story at KQED

 

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California could lift statute of limitations on rape charges

Posted By Administration, Tuesday, April 12, 2016

A group of Southern California women are headed to Sacramento to ask state lawmakers to get rid of California's statute of limitations on sexual assault claims.

Five of the women have accused comedian Bill Cosby of sexual assault, but at least some of the alleged crimes are too old for prosecution. A state bill, SB 813, authored by Senator Connie Leyva (D-Chino) would abolish all legal deadlines for rape, sodomy, lewd, or lascivious acts, continuous sexual abuse of a child, oral copulation and sexual penetration. The bill is set for a hearing Tuesday before the Senate Public Safety Committee. 

Leyva said too many rapists go un-prosecuted because of California's time restrictions.

“What I’ve heard opponents say is that people shouldn’t have that hanging over their head for the rest of their life, said Leyva. “I tend to disagree.  The victim has it hanging over their head for their whole life.”

Read the whole story at KPCC 

 

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JUDGE CLEARS 'STAIRWAY TO HEAVEN' COPYRIGHT CASE FOR TRIAL

Posted By Administration, Tuesday, April 12, 2016

A trial is needed to determine if Led Zeppelin's "Stairway to Heaven" copies its opening notes from a song performed by the rock band Spirit, a federal judge has ruled.

U.S District Judge R. Gary Klausner ruled Friday that lawyers for the trustee of late Spirit guitarist Randy Wolfe had shown enough evidence to support a case that "Stairway to Heaven" copies music from the Spirit song "Taurus."

"Taurus" was written by Wolfe in either 1966 or 1967, years before Led Zeppelin released "Stairway to Heaven" in 1971. Klausner wrote that while the songs have some differences, lawyers for Wolfe's trustee may be able to prove they are substantially similar.

 

Read the whole story at AP

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At SF fundraiser, Obama criticizes GOP over high court nominee

Posted By Administration, Tuesday, April 12, 2016

President Obama, speaking at a San Francisco fundraiser Friday night, renewed his criticism of Republicans for refusing to consider confirmation ofSupreme Court nominee Merrick Garland, saying they were standing between Garland and the voters they claim to represent.

“We have a Republican Senate that has decided not only not to vote for him, but to not give the American people an opportunity to hear what he has to say through a hearing,” Obama told an audience of about 100 donors.

Garland, 63, a 19-year judicial veteran who is chief judge of the U.S. Court of Appeals in Washington, D.C., was nominated by Obama last month to succeed Justice Antonin Scalia, who died in February. His confirmation would give the court a majority of Democratic appointees for the first time in more than 40 years, but the Senate’s Republican leaders say they will not hold confirmation hearings and that the choice should be up to the voters who elect the next president.

Read the whole story at SF Gate 

 

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Bar Wins Dismissal of Claims by Ex-Director

Posted By Administration, Tuesday, April 12, 2016

An arbitrator on Friday dismissed wrongful-termination claims filed by Joe Dunn against the State Bar of California, its board of trustees and two individuals stemming from his November 2014 ouster.

In granting the respondents' demurrers, Judge Edward Infante of JAMS found that Dunn had failed to state actionable claims in allegations ranging from whistleblower retaliation to breach of fiduciary duties.

"We believe this order dismissing every single claim supports what the bar has been saying all along," said Moez Kaba, a partner at Hueston Hennigan, which is representing the bar and former president Craig Holden. "The bar has done nothing improper with respect to Mr. Dunn."

But Infante's order left the door open for the litigation to continue by granting Dunn leave to amend a handful of claims and try again, which Dunn's lawyer said he intends to do.

Read the whole story at The Recorder

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Insurance Law News: Who’s on First Party or Third Party? It Makes a Difference

Posted By Dean A. Pappas, Tuesday, April 12, 2016

This blog post has been cross posted from the Insurance Section Blog.

 

By Dean A. Pappas

Ropers, Majeski, Kohn & Bentley

 

In Haering v. Topa Insurance Co. (2016) 244 Cal.App.4th 725, Plaintiff was insured under a primary commercial auto insurance policy issued by State National Insurance Company issued to his employer that provided uninsured motorist/underinsured motorist (UM/UIM) coverage.  The policy limits for the UM/UIM coverage was $1 million.  The employer was also an insured under an excess liability policy issued by Topa Insurance Company.  The State National policy was scheduled in the Topa policy as the underlying primary policy.  The limits of liability in the excess policy were $1 million for each occurrence and $1 million in the aggregate.

 

Plaintiff was injured in a motor vehicle accident caused by a negligent driver who was an insured under a policy with a $25,000 liability limit.  Plaintiff settled his claim against the negligent driver by accepting the $25,000 limit under the driver’s policy. He then submitted a claim to State National and eventually recovered the policy limit under the $1 million UM/UIM coverage.  Plaintiff next submitted a claim to Topa for $1 million in excess coverage asserting that the excess policy incorporated the underlying UM/UIM coverage since the Topa policy “followed form” to the State National policy. Topa denied any obligation.  Plaintiff sued.  The trial court agreed with Topa and plaintiff appealed.

 

The issue on appeal was whether an excess liability insurance policy that “follows form” to an underlying primary policy that provides UM/UIM coverage must also provide such coverage after the underlying policy limit has been exhausted.  The Court of Appeal agreed that the Topa policy did not include any UM/UIM coverage. 

 

The key to the Court of Appeal’s analysis was the distinction between “first party” insurance coverage and “third party” insurance coverage.  First party insurance coverage applies to loss or damage sustained directly by the insured.  Third party insurance coverage, in contrast, provides coverage for liability of the insured to a “third party.”  UM and UIM coverages are “first party” coverages; they create an obligation to compensate an insured directly for their loss or damage.  The most common type of first party insurance coverage is property insurance.  Third party insurance coverage is commonly called liability coverage. 

 

The Topa policy was an excess liability insurance policy; it applied to damages in excess of the underlying limit of liability “for which the Insured is liable.”  Plaintiff, however, was seeking payment due his own losses.  Plaintiff’s claim for “first party” UM/UIM benefits did not come within the scope of the “third party” liability insurance coverage provided by the Topa policy.  Judgment for Topa, therefore, was affirmed.

 

Caveat:  Different wording of a policy providing excess coverage may expand the excess coverage.  The Court of Appeal noted that some excess insurance policies include a “broad as primary” provision that enlarges the scope of coverage to include a loss that is within the scope of the underlying primary policy, even though that loss otherwise would have been excluded under the terms of the excess policy.  (Id. at 735.)

Tags:  Insurance Section 

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