|A pink neon "Appeals" sign resides in GMSR's library. The sign was donated to GMSR by its associates on GMSR's fifth anniversary. It is a tradition at GMSR to turn on the sign to commemorate a successful appellate outcome.
The light goes on frequently. Below are some recent occasions for Feris M. Greenberger:
Recent Wins: Feris M. Greenberger
Court of Appeal holds title insurance escrows fall within insurance-related work exclusion, affirming summary judgment for GMSR's client
December 16, 2011
Chicago Title Ins. Co. v. St. Paul Mercury Ins. (2011) 2011 Cal.App. Unpub. LEXIS 9627 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. The Court of Appeal affirmed summary judgment for GMSR’s client, St. Paul Mercury Insurance. Chicago Title’s officers and employees were implicated in a mortgage/real estate fraud scheme that resulted in nearly $100 million in settlements and judgments. Chicago Title tendered its defense to its general liability carrier St. Paul. The Court of Appeal held that there was no duty to defend because of an “insurance and related work” exclusion. The Court rejected the argument that the escrows used for the fraudulent transactions were non-insurance work, based among other things on a statute in the Insurance Code that defines “the business of title insurance” as including the conduct of escrows through which title insurance is issued.
Chicago Title Ins. Co. v. St. Paul Mercury Ins. (2011) 2011 Cal.App. Unpub. LEXIS 9627
Ninth Circuit upholds terminating sanctions and $1.1 million default judgment entered for GMSR’s client after opponents’ discovery abuse
July 19, 2011
Dreith v. Nu Image, Inc. (9th Cir. 2011) 2011 U.S. App. LEXIS 14686 (United States Court of Appeals for the Ninth Circuit) [published]. GMSR’s client, the Film Musicians Secondary Market Fund — created under collective bargaining agreements between the film industry and the American Federation of Musicians of the United States and Canada — benefits musicians who work on films and other media by collecting and distributing deferred wages (residuals) owed them from revenues earned in the secondary market of films and other works they helped create. The Fund sued defendant film producers after they stubbornly failed to comply with their revenue reporting obligations on several works. When defendants persisted in withholding information in federal district court, the court entered their default as a discovery sanction, held a prove-up hearing on damages, and entered a $1.1 million judgment for the Fund. Defendants appealed despite never having availed themselves of any district court remedy to set the default aside, even though the reassignment of the case to a different judge after imposition of sanctions but before entry of judgment gave them a natural opening for seeking trial court relief. The Ninth Circuit affirmed, rejecting defendants’ protestations on appeal that the sanctioning judge failed to go by the book and that the second judge’s careful reexamination of defendants’ conduct was beside the point. In its published opinion, the Court concluded “both that the district court possessed the power to impose the sanction of default and that the district court did not abuse its discretion by so doing.” The Court observed, “We are left to wonder why such sophisticated litigants, represented by counsel, failed to avail themselves of the avenues for relief from default afforded them” under the federal rules.
Dreith v. Nu Image, Inc. (9th Cir. 2011) 2011 U.S. App. LEXIS 14686
Court reverses default judgment, quashes service of process on GMSR client
June 30, 2011
Leontaritis v. Koursaris (2011) 2011 Cal.App. Unpub. LEXIS 5041 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. No one is supposed to be subjected to judgment without first duly being brought under the jurisdiction of the court. But the superior court refused to set aside a default judgment entered against GMSR’s client in a fraudulent conveyance lawsuit or to recognize that the service of process on her failed to comply with statutory requirements. The Court of Appeal reversed with directions, commanding the superior court to enter a new order vacating the default and default judgment and quashing service of summons and complaint.
Leontaritis v. Koursaris (2011) 2011 Cal.App. Unpub. LEXIS 5041
Court reverses $15+ million judgment against GMSR's client, invalidating CACI instruction regarding determination of employee or independent contractor status
July 1, 2010
Bowman v. Tommie Wyatt, Jr., et al. (2010) 186 Cal. App. 4th 286 (California Court of Appeal, Second District, Division Four) [published]. A jury found that GMSR’s client, the City of Los Angeles, was vicariously liable for the negligence of a truck driver who was under contract with the City. Plaintiff Bowman suffered catastrophic injuries when the truck collided with his motorcycle. The jury awarded over $15 million. GMSR persuaded the Court of Appeal that CACI 3704, the standard jury instruction on how to determine whether someone is an employee or an independent contractor, misstates the law because it places undue emphasis on one out of many factors relevant to the determination.
Because the jury rendered a general verdict, getting the reversal entailed negating each of Bowman’s multiple liability theories. Apart from the CACI 3704 issue, the opinion overturns the jury’s verdict as to peculiar risk of harm; holds as a matter of law that the City was not the truck’s motor carrier; and finds there was no substantial evidence that defective brakes proximately caused the accident.
Bowman v. Tommie Wyatt, Jr., et al. (2010) 186 Cal. App. 4th 286
Court of Appeal reverses largest land-use judgment ever awarded in Santa Barbara County and orders judgment for GMSR’s clients
March 4, 2008
Adam Bros. Farming, Inc. v. County of Santa Barbara (2008) 2008 Cal.App. Unpub. LEXIS 1831 (California Second District Court of Appeal, Division Six) [unpublished]. Two family agribusiness entities sued Santa Barbara County under 42 U.S.C. § 1983 for a supposed civil rights deprivation based on the County’s delineation of a wetland on a large parcel of land that one of the plaintiffs owned and the other wanted to farm. The judgment they won at trial, which with fees and punitive damages against some individual defendants totaled over $6 million, has been publicized as the largest land use judgment in Santa Barbara County history. Although there was no serious question that the wetland delineation was based on faulty methodology, GMSR, representing the County in the Court of Appeal, successfully persuaded the court that the plaintiffs had no standing to sue since the delineation, and therefore any civil rights violation, occurred well before they bought the land. The court also agreed that the claims were barred by the statute of limitations, since the plaintiffs had plenty of information about the faulty delineation well over a year before they sued. Result: The Court of Appeal reversed the judgment on the civil rights claims and ordered entry of judgment for the County and other defendants.
Adam Bros. Farming, Inc. v. County of Santa Barbara (2008) 2008 Cal.App. Unpub. LEXIS 1831
The California Supreme Court reinstates the NFL's judgment against the Oakland Raiders and clarifies the law regarding appellate review of new trial orders
July 2, 2007
The Oakland Raiders v. National Football League (2007) 41 Cal.4th 624 (California Supreme Court). Irving Greines and Feris Greenberger were integral players on the legal team that secured a Supreme Court decision reinstating the NFL's jury verdict in its hard-fought litigation with the Oakland Raiders. The Raiders sued the NFL over disputes connected with aborted plans for the team to return to Los Angeles. Following a lengthy trial, the jury returned a verdict for the NFL. The Raiders moved for a new trial on the ground of juror misconduct, and the parties submitted sharply conflicting declarations concerning what occurred in the jury room. The trial court ordered a new trial, but it failed to file the statement of reasons required by Code of Civil Procedure section 657. Although ordinarily appellate review of a new trial order is limited to a deferential evaluation of whether the trial court abused its discretion, the Supreme Court ruled unanimously that this situation required independent appellate review, and it agreed with the NFL that the trial court’s order could not survive that close scrutiny.
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