Recent Wins: Alana H. Rotter
Ninth Circuit affirms $319 million award for GMSR’s client
December 3, 2012
Celador International, Inc. v. American Broadcasting Companies, Inc., et al. (2012) 2012 U.S. App. LEXIS 24820 (United States Court of Appeals for the Ninth Circuit) [unpublished]. GMSR’s client Celador International licensed its mega-hit game show Who Wants To Be A Millionaire to ABC and a subsidiary in exchange for half of the profits. When ABC and the subsidiary reported that there were no profits despite the show’s runaway success, Celador sued for breach of the licensing agreement. A federal jury agreed that defendants had breached the express terms of the agreement and the implied covenant of good faith and fair dealing, and awarded $269 million in damages (plus an additional $50 million in stipulated prejudgment interest). The Ninth Circuit affirmed. Rejecting defendants’ smorgasbord of claimed errors, it held that the district court properly allowed the jury to determine the meaning of the licensing agreement, that the trial court did not commit any reversible evidentiary or instructional error, and that the record supported the jury’s award of $269 million in damages.
Celador International, Inc. v. American Broadcasting Companies, Inc., et al. (2012) 2012 U.S. App. LEXIS 24820
Court of Appeal affirms ruling entitling GMSR client to enforce $1.3 million damages award against judgment debtor’s property
November 14, 2012
Dearing v. DeMille (2012) 2012 Cal.App. Unpub LEXIS 8296 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. An institutional trustee won a judgment (which GMSR successfully defended on appeal) ordering the former trustee to pay the trust more than $1 million in damages. The former trustee attempted to stymie enforcement of the judgment by disclaiming his interest in his father’s estate and re-routing his inheritance to his son. The probate court held that the former trustee’s disclaimer did not apply to the property at issue. The Court of Appeal affirmed. It held, as GMSR argued, that the former trustee could not invoke the doctrine of equitable estoppel to avoid satisfying a judgment against him. It also rejected the former trustee’s procedural challenges to the appealed ruling, and affirmed that even in light of proffered extrinsic evidence, the disclaimer was not susceptible to the former trustee’s interpretation.
Dearing v. DeMille (2012) 2012 Cal.App. Unpub LEXIS 8296
Court of Appeal issues writ directing summary judgment for GMSR’s client in case arising out of store shooting
January 12, 2012
Coffee House v. Superior Court (2012) 2012 Cal.App. Unpub LEXIS 263 (California Court of Appeal, Second Appellate District, Division Five) [unpublished]. Two unidentified men entered Coffee House, GMSR’s client, and started shooting. They fatally shot a patron named Hung and wounded three others, who sued Coffee House. Two months earlier, a man identified as Viet had entered Coffee House, verbally accosted Hung for “bad-mouthing” him, and displayed a firearm in a threatening manner. Viet was later seen at Coffee House in Hung’s presence, with no apparent difficulties. Plaintiffs’ experts claimed that had the first incident been reported to police there would have been greater law enforcement presence in the area. The trial court denied summary judgment. The Court of Appeal issued an alternative writ and then a peremptory writ of mandate directing judgment for GMSR’s client Coffee House, finding an insufficient showing of causation as a matter of law.
Coffee House v. Superior Court (2012) 2012 Cal.App. Unpub LEXIS 263
Court of Appeal finds GMSR's client is entitled to an evidentiary hearing on mechanic’s lien
September 7, 2011
HBI Construction, Inc. v. Superior Court (2011) 2011 Cal.App. Unpub. LEXIS 6745 (California Court of Appeal, Fourth District, Division Two) [unpublished]. GMSR's client, HBI, had a mechanic's lien on seven properties that were part of a single, overarching construction project. After foreclosure proceedings wiped out the lien on six of the properties, the owner of the seventh filed a motion asking the trial court to apportion the lien based on a formula that it admitted was the most favorable to it. The trial court granted the motion, adopting the proposed apportionment over HBI's objection that it could not make such a determination without taking additional evidence. GMSR filed a writ petition on HBI's behalf. Granting the petition, the Court of Appeal held that apportioning the lien without taking evidence was an abuse of discretion. It ordered the trial court to vacate its ruling, and to hold an evidentiary hearing to determine what portion of the lien was attributable to the property at issue.
HBI Construction, Inc. v. Superior Court (2011) 2011 Cal.App. Unpub. LEXIS 6745
Court affirms $12.5 million breach of contract judgment for GMSR’s client
July 20, 2011
Dairy Farmers of America, Inc. v. Cacique, Inc. (2011) 2011 Cal.App. Unpub. LEXIS 5421 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. Cacique, a cheese producer, abruptly terminated its contract to buy milk from Dairy Farmers of America without giving the requisite notice. DFA sued for breach of contract. Following a bench trial, the trial court awarded DFA $12.5 million in damages. Cacique appealed, arguing that the trial court erroneously eliminated its key defense before trial and used the wrong measure of damages. GMSR successfully defended the judgment on appeal: The Court of Appeal held that Cacique’s dismissed defense (breach of the implied covenant of good faith and fair dealing) was not viable and affirmed the damages award in its entirety.
Dairy Farmers of America, Inc. v. Cacique, Inc. (2011) 2011 Cal.App. Unpub. LEXIS 5421
Employer’s failure to add hours on wage statement causes no injury
May 18, 2011
Hill v. Sullivan Automotive Group, LLC (2011) 2011 Cal.App. Unpub. LEXIS 3726 (California Court of Appeal, Second Appellate District, Division Seven) [unpublished]. California law requires that an employee’s wage statement state regular, overtime, and total hours worked. Affirming summary judgment for GMSR’s client in a class action, the Court of Appeal held that there is no violation and no actionable injury where the wage statement shows all regular and overtime hours (and the amounts paid for each) and the only issue is whether the employee had to add the regular and overtime hours together to obtain total hours.
Hill v. Sullivan Automotive Group, LLC (2011) 2011 Cal.App. Unpub. LEXIS 3726
Serving pro bono, Alana and Jonathan Rotter win Ninth Circuit reversal of order denying immigrants’ petition for relief
April 25, 2011
Cruz-Carbajal v. Holder (2011) 2011 U.S. App. LEXIS 8516 (United States Court of Appeals for the Ninth Circuit) [unpublished]. Teaming up as pro bono counsel, husband and wife team Alana Rotter of GMSR and Jonathan Rotter of Kaye Scholer LLP argued that the Board of Immigration Appeals erroneously denied a motion for relief based on ineffective assistance of former counsel. The Ninth Circuit agreed, holding in a 2-1 decision that former counsel’s performance was inadequate as a matter of law. The Ninth Circuit further held that the Board misstated the legal standard for determining whether ineffective assistance was prejudicial. The court remanded to the Board to reconsider petitioners’ prejudice argument under the correct, more lenient legal standard.
Cruz-Carbajal v. Holder (2011) 2011 U.S. App. LEXIS 8516
Court of Appeal affirms summary judgment for GMSR’s client, finding civil rights claims barred by plaintiff’s criminal conviction
November 16, 2010
Delgado v. City of Riverside (2010) 2010 Cal.App. Unpub. LEXIS 9084 (California Court of Appeal, Fourth District, Division Two) [unpublished]. A jury convicted Gerardo Delgado of resisting police officers who were attempting to arrest him. Delgado then filed a civil rights suit alleging that it was unreasonable for the officers to use deadly force during the encounter. GMSR represented the police officers and the City both at the summary judgment stage and in the Court of Appeal. It argued that Delgado’s claims were barred by Heck v. Humphrey (1994) 512 U.S. 477, which prohibits a civil suit that, if successful, would necessarily imply the invalidity of a criminal conviction. The trial court agreed and granted judgment for the defendants. The Court of Appeal affirmed, rejecting Delgado’s theory that a recent California Supreme Court case alters the Heck v. Humphrey analysis in a case involving deadly force.
Delgado v. City of Riverside (2010) 2010 Cal.App. Unpub. LEXIS 9084
Court of Appeal affirms rulings voiding fraudulent transfer and permitting GMSR client to enforce $1 million appellate bond
June 9, 2010
Citizens Business Bank v. DeMille (2010) 2010 Cal.App. Unpub. LEXIS 4316 (California Court of Appeal, Second Appellate District, Division Two) [unpublished]. The institutional trustee for a family trust won a judgment (which GMSR successfully defended on appeal) ordering the former trustee to pay the trust more than $1 million in damages. The former trustee posted a $1 million undertaking to stay enforcement of the judgment and then, after the trial court found the undertaking inadequate, purported to have transferred all of his assets to his son. The trial court held that the trust could enforce the undertaking and that the purported transfer was void. The Court of Appeal affirmed both rulings. It held, as GMSR argued, that the undertaking was enforceable under a statute that makes a guarantor liable even if its bond is defective. The court further affirmed that the purported asset transfer was void because it was not accompanied by an actual change in possession as required by the fraudulent transfer statute.
Citizens Business Bank v. DeMille (2010) 2010 Cal.App. Unpub. LEXIS 4316
Court of Appeal reverses dismissal of trade secret misappropriation claims
December 29, 2009
Jasmine Networks, Inc v. Superior Court (2009) 180 Cal.App.4th 980 (California Court of Appeal, Sixth Appellate District). The trial court dismissed a trade secrets misappropriation suit on the eve of trial, concluding that the plaintiff lost standing to pursue its claims when it sold what was left of the trade secrets to a third party but expressly retained its interest in the litigation. GMSR petitioned for a writ of mandate on behalf of the plaintiff. The petition argued that neither the California Uniform Trade Secrets Act nor any other authority requires a plaintiff to maintain ownership of its misappropriated trade secrets in order to recover for damages already incurred. The Court of Appeal agreed in a published opinion, holding that there is no “current ownership” requirement and ordering the trial court to reinstate the plaintiff’s suit.
Jasmine Networks, Inc v. Superior Court (2009) 180 Cal.App.4th 980
Court of Appeal holds that homeowners who employed an unlicensed contractor to remodel their house are not subject to OSHA
September 2, 2009
Cortez v. Abich (2009) 177 Cal.App.4th 261 (California Court of Appeal, Second Appellate District, Division Four). GMSR's client homeowners hired an unlicensed contractor to assist in a home remodeling project. A worker injured during the project sued the homeowners, asserting that they were liable for OSHA violations leading to his injury. Affirming summary judgment in favor of GMSR's clients, the Court of Appeal held that although hiring an unlicensed contractor meant that the homeowners were statutory employers of the injured worker, they owed no obligation to comply with OSHA when remodeling their own home. The court also held that the homeowners had no duty to warn the worker of the danger of climbing onto a half-demolished roof because the danger of falling through was open and obvious.
Court of Appeal reverses $30 million malpractice and breach of fiduciary duty judgment
February 20, 2009
Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336 (California Court of Appeal, Second Appellate District, Division Three). In a suit charging attorney malpractice and related intentional torts, a celebrity plaintiff claimed that GMSR’s client, a major law firm, had deprived him of an automatic $10 million recovery from his former business manager/agent under the Talent Agencies Act. The jury awarded the plaintiff over $30 million, including $15 million punitive damages. In a published decision, the Court of Appeal reversed the judgment in its entirety and remanded the case for retrial, finding prejudicial instructional and other errors and with specific directions for the trial court to consider a potentially dispositive defense it had previously rejected.
Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336
In first-impression case, Court of Appeal dismisses as moot an appeal from overtime and class certification rulings
December 8, 2008
Larner v. Pacific Health Corp. (2008) 2008 Cal.App. LEXIS 2387 (California Court of Appeal, Second Appellate District, Division One). [published]. GMSR obtained the dismissal of an appeal against its client, a hospital, on the ground that the appeal was was moot. The trial court had rejected a former employee’s overtime claim against the hospital and denied the employee’s motion for class certification on other wage and hour claims. The plaintiff settled “all” her claims against the hospital under an agreement that purported to preserve her right to appeal; stipulated to entry of judgment for the hospital; and then appealed. The Court of Appeal agreed with GMSR’s position that the appeal was moot in light of the settlement. Reaching a matter of first impression under California law, the court found that the employee, as a putative class representative, had no continuing personal stake in the litigation and therefore that the appeal had to be dismissed.
Larner v. Pacific Health Corp. (2008) 2008 Cal.App. LEXIS 2387
Court of Appeal reverses judgment against GMSR client in commercial lease dispute
November 26, 2008
Burlington Coat Factory of California LLC v. Bella Terra Associates LLC (2008) 2008 Cal.App. Unpub. LEXIS 9642 (California Court of Appeal, Fourth Appellate District, Division Three). [unpublished]. GMSR obtained a reversal of a judgment against a commercial tenant in a dispute over the interpretation of a real estate tax provision in the tenant’s lease. The trial court had found the provision unambiguous in requiring the tenant to pay a multiple of future tax increases. GMSR successfully argued that the language was reasonably susceptible to a more limited interpretation and that the implied covenant of good faith and fair dealing imposed a duty on the landlord not to unreasonably allow taxes to be increased where, under the landlord’s reading of the lease, such an increase would increase the landlord’s profit. The Court of Appeal also reversed summary judgment against the tenant on the landlord’s claim that it was a bona fide purchaser from the tenant’s original landlord and therefore not bound by the parties’ prior course of dealing that was different than the landlord’s lease construction would have yielded.
Burlington Coat Factory of California LLC v. Bella Terra Associates LLC (2008) 2008 Cal.App. Unpub. LEXIS 9642
Court affirms summary judgment for GMSR client, ruling that insured had no benefits to assign to home buyer for damage occurring after insured sold property
March 24, 2008
Edwards v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 2428 (California Fourth District Court of Appeal, Division One) [unpublished]. Plaintiff purchased a house. The seller remained on the mortgage, however, and plaintiff buyer still owed a portion of the purchase price. Several days later, the house burned down. Not having insured the property, plaintiff obtained an assignment of policy benefits from the seller. The insurer, GMSR’s client, denied coverage and plaintiff sued. Agreeing with GMSR’s arguments, the Court of Appeal held that the seller had no policy benefits to assign to plaintiff because she had no insurable property interest at the time of the fire. The Court affirmed the summary judgment for the insurer.
Edwards v. Fire Insurance Exchange (2008) 2008 Cal.App. Unpub. LEXIS 2428
Court affirms that GMSR client did not anticipatorily breach real estate contract by seeking cancellation of escrow
February 27, 2008
Guerrero v. Cordova Associates, Inc. (2008) 2008 Cal.App. Unpub. LEXIS 1582 (California Second District Court of Appeal, Division Four) [unpublished]. A real estate buyer contracted to buy property from the seller, GMSR’s client. The seller deposited a deed into escrow. Instead of depositing the purchase price in escrow, the buyer argued about zoning. The seller sought to cancel the escrow and eventually sold to another buyer. The buyer sued for specific performance, seeking the profits of the resale. The trial court initially found that the seller’s attempt to cancel the escrow was an anticipatory breach. GMSR successfully moved to vacate the judgment on the ground that the buyer’s failure to deposit the purchase price was not excused by the seller’s attempt to cancel the escrow, because the seller’s deposit of a grant deed into escrow is an irrevocable act. The Court of Appeal agreed and affirmed the judgment for the seller. GMSR attorneys Bob Olson and Alana Rotter represented the seller in post-trial proceedings and on appeal.
Guerrero v. Cordova Associates, Inc. (2008) 2008 Cal.App. Unpub. LEXIS 1582
Court of Appeal affirms $1.9 million judgment against former trustee for taking trust property in bad faith
November 7, 2007
De Mille v. Citizens Bus. Bank (2007) 2007 Cal.App. Unpub. LEXIS 9019 (California Second District Court of Appeal, Division Two) [unpublished]. A trust settlor’s nephew, the trustee of the trust, attempted through forgery and undue influence to change the terms of the trust for his own benefit. When the nephew sought to have the changes confirmed by the probate court, those who would have been disinherited by the revisions objected and sought damages based on the value of property that the nephew had already wrongfully taken from the trust. The probate court removed the nephew as trustee, ordered disgorgement, and imposed double damages. The nephew appealed, arguing in part that he had not misappropriated any trust funds, that a notice defect precluded the judgment, and – in a matter of apparent first impression – that the award of disgorgement plus double damages violated the Probate Code. GMSR attorneys Alana Hoffman and Marc Poster, representing the successor trustee, persuaded the Court of Appeal to reject these arguments and to affirm the $1.9 million judgment in favor of the trust.